At the heart of the legal debate over President Donald Trump’s executive order on birthright citizenship is the interpretation of the 14th Amendment’s citizenship clause. While there are numerous practical hurdles to eliminating birthright citizenship as it’s been practiced, the president is on solid legal footing. The clause (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof”) should not be interpreted as conferring automatic citizenship to children born of illegal immigrants. Setting aside constitutional interpretation, that just seems like common sense.
But not everyone sees it this way, hence the controversy. According to two federal judges who have issued injunctions since the order was issued, the language of the clause should be read at its broadest, which would grant citizenship to any person born within the territorial boundaries of the U.S., regardless of the status of the parents. Proponents of this interpretation point to the Supreme Court case United States v. Wong Kim Ark (1898) in which the court held that a child born within the territorial boundaries of the U.S. to temporary Chinese immigrants was a citizen.
But the problems with this interpretation are manifold. For one, it misinterprets the phrase “subject to the jurisdiction thereof” to apply to children born to foreign nationals who are not under full and exclusive allegiance to the U.S. Those who are born in the U.S. to parents who are here on business or vacation should also be denied citizenship on these grounds. While in America, they are subject to the jurisdiction of the U.S. but only in a limited and ephemeral sense. They could not, for example, be drafted into the military. Once they leave, they are not subject to U.S. laws, which is not the case with Americans.
There are various ways in which illegal immigrants are not “subject to the jurisdiction thereof” in the same way citizens are. In an op-ed in the Wall Street Journal on Monday, Chuck Cooper and Pete Patterson offered the following scenario: An infant is brought to the U.S. legally, is lawfully naturalized, and serves in the military but cannot run for president — but the child of a foreign tourist born in the U.S. can?
The framers of the clause included it to ensure that citizenship would be conferred to the children of slaves who were brought here against their will. It is ludicrous to suggest that people who have traveled here of their own accord and entered the country unlawfully should be granted the same privilege.
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There are numerous practical hurdles that come with ending birthright citizenship that lawmakers will need to attend to should the Supreme Court eventually decide in Trump’s favor. Some have raised questions about the moral complexities of the move, suggesting that ending birthright citizenship could create an underclass of “stateless” children and result in family separations. It would also worsen the bureaucratic nightmare of our national recordkeeping systems. Lawmakers should do everything possible to mitigate these unintended consequences.
But that doesn’t absolve the nation of the responsibility to enact sane immigration policy based on sound legal arguments. Trump’s executive order achieves this, and so it is to be hoped that the courts find this compatible with the Constitution.
