By Scott D. Cosenza, Esq.

“You can definitely do it with an act of Congress, but now they’re saying I can do it just with an executive order.”

– President Donald J. Trump

The “it” in the quote above is birthright citizenship – the idea that anyone born in the United States is a U.S. citizen. “They,” we presume, are the advisers to the president, whom he regards as sufficient authorities on the law.  While giving an interview to Axios, Donald Trump dropped the bomb that his administration is in the process of revoking this doctrine via executive order.

This question will be settled definitively by only one body – the U.S. Supreme Court.

Can he do it?  Maybe.

There are two questions at issue here, and both are relatively unsettled.  The first is whether or not the 14th Amendment requires the granting of birthright citizenship.  If it does, then the analysis stops, as only a new constitutional amendment could change the law.  If, however, the revocation or modification of birthright citizenship could be accomplished without a constitutional amendment, then the question becomes whether Mr. Trump has the authority to make such a change unilaterally.

14th Amendment

Passed as one of the Reconstruction Amendments just after the Civil War, the 14th Amendment’s first section includes several clauses: the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause.  If you’re a follower of civil rights jurisprudence, those will be most familiar to you, as so many decisions by the Supreme Court find rights granted in them. So, what about the Citizenship Clause?

The very first sentence of the 14th Amendment reads:

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.

Does it jump off the page at you?  “[S]ubject to the jurisdiction thereof.”  Without that clause, it seems Trump would have no case. So what does it mean?  The argument from the administration will be that children of illegal aliens should be denied citizenship because they are not subject to the jurisdiction thereof.  This is an open question, as no actions testing such a reading of the amendment have been brought.

Originalist legal scholar and University of San Diego law professor Michael Ramsey writes:

“[T]here is no sense in which children of illegal aliens are not ‘subject to the jurisdiction’ of the United States.  So long as they remain in the United States, they are subject to U.S. law.  If they violate U.S. law, they can be arrested by U.S. law enforcement, brought before a U.S. court, and sentenced to U.S. prison.


Moreover, it’s evident from nineteenth-century international law who might be born in the United States but not be “subject to the jurisdiction” of the United States: children of ambassadors and other diplomatic personnel.  Under the international law of the time (as is still largely true in modern law) foreign diplomats had immunity from local law.  They could not be arrested or brought before a U.S. court.  If they violated U.S. law, the U.S.’s sole remedy was to request the sending nation to recall them.  They were not, it was said, subject to U.S. jurisdiction.  And an ambassador’s family enjoyed the same immunity.”

Ramsey goes on to mention some members of Indian tribes that might be treated similarly. The children of illegals are not included in any excluded group under this analysis, however, and thus must be citizens unless the constitution is amended.

Senator Jacob Merritt Howard (R-MI)

Jacob Merritt Howard was a Republican senator from Michigan who served on the Joint Committee on Reconstruction that drafted the 14th Amendment.  In 1866, he said the amendment “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors [sic] or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”  He went on to proclaim the 14th Amendment “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”

Law professor and constitutional legal scholar John C. Eastman attacks birthright citizenship from the same originalist analysis, but reaches a different conclusion.  He wrote for the National Review when the issue heated up in 2015.  After noting that the issue at hand was not debated directly at the time because there were no restrictions on immigration in 1868, he writes:

“When a British tourist visits the United States, he subjects himself to our laws as long as he remains within our borders. He must drive on the right side of the road, for example. He is subject to our partial, territorial jurisdiction, but he does not thereby subject himself to our complete, political jurisdiction. He does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance. He is merely a ‘temporary sojourner,’ to use the language employed by those who wrote the 14th Amendment, and not ‘subject to the jurisdiction’ of the United States in the full and complete sense intended by that language in the 14th Amendment.

This question will be settled definitively by only one body – the U.S. Supreme Court, should it take a case presenting that controversy.

Executive Actions

What about the mechanics of changing the law – can Trump do it alone? The method of removing birthright citizenship would also be challenged if attempted.  Cato Institute  scholar Ilya Somin says:

“Even if the Fourteenth Amendment does not guarantee birthright citizenship to children of undocumented immigrants or temporary visa holders, it does not follow that the president can deny it to them by executive order.”

Somin goes on to cite the Naturalization Clause of Article I of the Constitution, which gives Congress, not the president, the power to “establish an uniform Rule of Naturalization.”  He argues that since Congress has legislated in this area, “this law must be interpreted as granting birthright citizenship to children of undocumented immigrants, even if the Supreme Court were to rule that the similar language of the Fourteenth Amendment does not.”

While most scholars writing about the issue believe the 14 Amendment does confer citizenship to those born on U.S. soil to illegal immigrants, only the opinions of five peoples really matter – any five that make a majority on the Supreme Court.  Expect any change in the law announced by President Trump to be stayed by a federal judge within seconds, while we then wait a year or more for a ruling from the high court.

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