Legal Experts Weigh In On Trump’s Silly Birthright Citizenship Ideas
Overwhelmingly, legal experts agree that President Trump is wrong about birthright citizenship and the Fourteenth Amendment.
As I noted yesterday, President Trump, as he has in the past, has come out in favor of eliminating some elements of the birthright citizenship guaranteed by the 14th Amendment, this time claiming that he can do so via an Executive Order rather than having to rely on the unlikely prospect of Congressional legislation purporting to do this, or the even more unlikely prospect of a Constitutional Amendment that would overturn a legal principle that has been part of American law for at least the past 120-odd years. Not surprisingly, this has caused a number of legal scholars and historians to weigh in on the topic, and the overwhelming consensus from both the left and the right is that the President’s proposal is clearly unconstitutional:
“The president cannot erase the Constitution with an executive order, and the 14th Amendment’s citizenship guarantee is clear,” said Omar Jadwat, the director of the American Civil Liberties Union’s Immigrants’ Rights Project. “This is a transparent and blatantly unconstitutional attempt to sow division and fan the flames of anti-immigrant hatred in the days ahead of the midterms.”
The citizenship clause of the 14th Amendment, ratified in the aftermath of the Civil War, says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The meaning of that clause is plain, said Peter J. Spiro, a law professor at Temple University. “The conventional understanding is absolutely clear that children born in the United States are citizens of the United States, with the insignificant exception of the children of diplomats,” he said.
A main purpose of the clause was to overrule Dred Scott, the shameful 1857 Supreme Court decision that said black slaves were property and not citizens. The decision said the Constitution barred Congress and the states from granting citizenship to the descendants of slaves, and it helped prompt the Civil War.
“In its most monumentally erroneous decision, the Supreme Court created a monstrous exception to the common law rule that birth on American soil to a free person was sufficient for American citizenship,” Walter Dellinger, then the head of the Justice Department’s Office of Legal Counsel, said in congressional testimony in 1995. “The court held that no persons of African descent — including free persons of African descent — and none of their descendants for all time to come could ever be citizens of the United States regardless of their birth in America.”
In congressional debates about the 14th Amendment in 1866, lawmakers said its sweep should be wide.
“Is the child of the Chinese immigrant in California a citizen?” Senator Edgar Cowan of Pennsylvania asked on the Senate floor.
Senator John Conness of California said the answer was yes.
“The children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens,” Mr. Conness said.
These arguments have also been made in a number of blog posts and Op-Ed pieces written in the wake of yesterday’s news.
First up, even before Trump threw this particular grenade into the tent, John Yoo, who served in the Justice Department under George W. Bush and now teaches law at the University of California at Berkley, argues that the issue is settled law:
The 14th Amendment’s reference to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof” refers to children who are born in US territory and are subject to American law at birth. Almost everyone present in the United States, even aliens, come within the jurisdiction of the United States. If the rule were otherwise, aliens present on our territory could violate the law with impunity.
Critics, however, argue that “subject to the jurisdiction thereof” must refer to those who bear allegiance to the United States, i.e., those whose parents are already citizens. Otherwise, the argument, goes, the jurisdiction language is redundant with being born on US territory. But at the time of the Framing of the Constitution and of the Amendment, there were discrete categories of persons who could be on US territory but no subject to our laws, such as diplomats and enemy soldiers occupying US territory during war. International law grants both diplomats and enemy soldiers protected status, when present on the soil of another state, from the application of that state’s laws.
At the time of the 14th Amendment’s ratification, one other group was not subject to US jurisdiction. American Indians residing on tribal lands were not subject to US law because the tribes exercised considerable self-governance. In the late 19th Century, the federal government began to regulate Indian life, substantially diminishing tribal sovereignty, and in 1924 extended birthright citizenship to them.
The 14th Amendment’s drafting history supports this reading. The Civil Rights Act of 1866, which inspired the Amendment, extended birthright citizenship to those born in the US except those “subject to any foreign power” and “Indians not taxed.” If the 14th Amendment’s drafters had wanted “jurisdiction” to exclude children of aliens, they easily could have required citizenship only for those with no “allegiance to a foreign power.”
Significantly, congressional critics of the Amendment recognized the broad sweep of the birthright citizenship language. Senator Edgar Cowan of Pennsylvania, a leading opponent, asked: “is the child of the Chinese immigrant in California a citizen? Is the child born of a Gypsy born in Pennsylvania a citizen?” Senator John Conness of California responded yes, and later lost his seat due to anti-Chinese sentiment in his state. The original public meaning of the 14th Amendment—which conservatives properly believe to be the lodestar of constitutional interpretation—affirms birthright citizenship.
In a similar vein albeit from the opposite side of the political aisle, University of Baltimore constitutional law Professor Garrett Epps, explains that the drafters of the 14th Amendment had something very specific in mind when they drafted the citizenship clause of the Amendment and that Trump’s proposal would completely undermine it. Specifically, Epps does an excellent job of dismantling the central core of the argument of those who argue that the children of undocumented immigrants should not be considered citizens:
The citizenship-denial lobby has focused on the words subject to the jurisdiction. Its members argue that citizens of foreign countries, even if they live in the U.S., are not subject to U.S. jurisdiction, and thus their children are not covered by the clause. To test this idea, ask yourself: If a foreign citizen rear-ends your car on your drive home today, will you, or the police, allow him to drive away on the grounds that a foreign citizen cannot be arrested, ticketed, or sued?
For those scoring at home, the answer is no.
Foreign citizens are “subject to the jurisdiction” of our police and courts when they are in the U.S., whether as tourists, legal residents, or undocumented immigrants. Only one group is not “subject to the jurisdiction”—accredited foreign diplomats and their families, who can be expelled by the federal government but not arrested or tried.
That’s who the framers of the clause were discussing in Section 1—along with one other group. In 1866, when the amendment was framed, Indians living under tribal rule were not U.S. citizens. Under the law as it was then, American police could not arrest them, and American citizens could not sue them. Relations with Indian tribes were handled government to government, like relations with foreign nations: If Native people left the reservation and harmed American citizens, those citizens had to apply to the U.S. government, which would officially protest and seek compensation from the tribal government. In that respect, Indians living under tribal government were as protected as foreign diplomats are today.
But over and over in the Fourteenth Amendment debates, the framers of the amendment made clear that there would be no other exclusions from the clause. Children of immigrants? They were citizens. Even children of Chinese immigrants, who themselves weren’t eligible to naturalize? Yes, them too. Mysterious foreign “Gypsies,” who supposedly spoke an unknown language and worshipped strange gods and observed no American laws? Yes, the sponsors explained, it covered them too.
The assault on birthright citizenship is an onslaught on civic equality for all of us. Nativists have grown more strident over the past decade or so. First, they advocated for a constitutional amendment to strip citizenship from the children of aliens; then they argued that citizenship could be stripped by statute; now, in the Trump era, they claim that it can be done with the stroke of a pen. It is an idea that has crawled slowly from the fever swamps of the far right into the center of our discourse, growing more outlandish with each step.
The executive-order idea was floated as a trial balloon in July in an op-ed piece in The Washington Post by former White House official Michael Anton. Anton’s sole book is The Suit: A Machiavellian Approach to Men’s Style, which details a Florentine Renaissance approach to menswear on the job. In the Post piece, Anton inaccurately reproduced a quote from Senator Jacob Howard, the sponsor of the Fourteenth Amendment, in a manner that made Howard seem to support Anton’s position (the Post, under enormous criticism, eventually acknowledged the alteration). And in fact, every bit of the scant scholarship Anton relies on in that piece is as phony as a Confederate $100 bill. (I once debated the scholar who was the source of most of it, and pointed out that almost all his evidence was not just erroneous, but faked.)
That is one of the two takeaways from today’s news: Trump, Anton, and their enablers are relying on phony history and altered documents in an attempt to change the American constitutional order. (The facts are readily available; for my own contributions, see here, here, here, here, and here.) Those who don’t want to take my word for it can consult this essay by James C. Ho, a conservative “originalist” who was recently appointed to the U.S. Court of Appeals for the Fifth Circuit by Donald Trump. Ho and I agree on little except this: The citizenship clause means what it says.
Historian Eric Foner, who has written extensively about the Civil War and the Reconstruction Era during which the 14th Amendment was drafted, debated, and ratified, agrees:
Embedding birthright citizenship in the Constitution was one of the transformative results of the Civil War and the destruction of slavery. Before the war, no uniform definition of citizenship existed. Soon after the conflict ended, members of Congress asked Horace Binney, a prominent lawyer and a former congressman, to explore the meaning of citizenship.
“The word citizen,” he responded, “is found ten times at least in the Constitution of the United States, and no definition of it is given anywhere.” States determined who was a citizen and the rules varied considerably. Massachusetts recognized free African-Americans as citizens; many other states did not. For persons immigrating from abroad, moreover, racial distinctions were built into federal law.
Mr. Trump’s order, if issued, will not only violate both the Constitution and deeply rooted American ideals, but also set a dangerous precedent. If the president can unilaterally abrogate a provision of the Constitution by executive order, which one will be next?
Eugene Volokh agrees that, at the very least, the President cannot change the legal status of birthright citizenship via Executive Order, and his Volokh Conspiracy co-blogger Ilya Somin agrees, as does the Editorial Board of The Wall Street Journal. Finally, and perhaps most interestingly, Neal Kaytal, who served as Solicitor General during the Obama Administration, and George Conway, who is both a conservative Washington attorney and the husband of Kellyanne Conway, one of the President’s closest advisers, co-author a piece in The Washington Post arguing that the President’s proposed action is clearly unconstitutional:
[T]he drafters of the 14th Amendment declared in their very first sentence, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The drafters were motivated by their utter revulsion toward slavery and a system that relegated people to subordinate political status because of their birth. They weren’t thinking of, or concerned with, any exceptions to birthright citizenship other than the absolutely essential.
And what they wrote was simple and clear. Both proponents and opponents of the language at the time knew exactly what it meant: Virtually anyone born in the United States is a citizen. In 1898, the Supreme Court affirmed just that: It held that the “Fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory” — “including all children here born of resident aliens.” The exception? “Two classes of cases” in which the United States could not apply its laws to foreigners under historic Anglo-American legal principles: “children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state.”
Neither of those narrow exceptions supports what Trump proposes to do by executive order. He is threatening, with the stroke of a pen, to declare certain people who are born in the United States ineligible for citizenship — despite the plain words of the 14th Amendment.
Beyond this, the president’s proposal suffers from another infirmity — it exceeds the scope of his authority. Our Constitution could not be clearer that it is Congress, not the president, who is in the driver’s seat when it comes to immigration. Congress has specific powers over immigration in Article I; the president, none whatsoever, except as Congress has given to him by statute. And Congress has already spoken. In 1952, Congress declared, “The following shall be nationals and citizens of the United States at birth . . . a person born in the United States, and subject to the jurisdiction thereof.”
Indeed, once upon a time, in the fall of 2015, candidate Trump recognized that pesky Article I problem. A television host asked him, “The courts have ruled twice against the anchor baby stuff. You’d have to get a constitutional amendment passed to overturn that.” Mr. Trump’s answer: “You don’t have to do a constitutional amendment. You need an act of Congress. I’m telling you — you need an act of Congress. Everybody thought you needed a constitutional amendment. You don’t need that.”
He was wrong — a constitutional amendment would indeed be necessary to revoke birthright citizenship. But no matter what, an executive order could never suffice, notwithstanding the president’s assertion to Axios: “You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order.” Whoever they are, they have it wrong. An executive order to reinterpret “subject to the jurisdiction thereof” could never pass muster because, if the Constitution provides any leeway to decide the meaning of that phrase, it provides it to Congress, and not the president.
The fact that the two of us, one a conservative and the other a liberal, agree on this much despite our sharp policy differences underscores something it is critically important to remember during a time marked by so much rancor and uncivil discourse: Our Constitution is a bipartisan document, designed to endure for ages. Its words have meaning that cannot be wished away.
It’s worth noting, of course, that 0there are a handful of legal experts on the right who support the President’s interpretation of Section One of the 14th Amendment, at least to the extent that they take the position that Congress could use its power under Section 5 of the 14th Amendment, which grants that body the authority to enforce the provisions of the Amendment, to redefine citizenship to exclude children born to noncitizens from birthright citizenship. The most notable of these arguments have been made by Michael Anton, a lecturer at the conservative Hillsdale College, Peter Schuck, an Emeritus Professor of Law at Yale and Edward Erler, who is affiliated with the conservative Claremont Institute. Even those scholars, though, seem to at least draw the line at the idea that this is something that can be accomplished via Executive Order. There is quite simply no support for that idea, and I suspect that even the President knows that.