On the day he took office for his second term, President Trump signed an executive order purporting to end citizenship by birth for the children of illegal aliens and temporary visitors. Since then, several federal judges have entered preliminary injunctions or temporary restraining orders enjoining the order’s enforcement indefinitely. A torrent of criticism has come from law school professors, with several competing to condemn the order in the harshest terms. These criticisms reinforce the conventional academic view that the Citizenship Clause of the 14th Amendment provides citizenship by birth to the children of parents who have entered this country unlawfully and as temporary visitors (what we call the “expansive view”). As we see it, the case for the expansive view, at least with regard to the issue of parents not lawfully in this country, has not been made out.
“The debate centers over what ‘subject to the jurisdiction’ of the United States means.”
The conventional academic consensus is that under the 14th Amendment’s Citizenship Clause, children born in the United States to parents unlawfully here are automatically citizens of the United States without need to pursue naturalization. This expansive view is based on a misreading of the Supreme Court’s landmark 1898 decision in Wong Kim Ark and Congress’s intent in enacting the 1866 Civil Rights Law and submitting the 14th Amendment for adoption by the States. It is also inconsistent with contemporaneous practice of the State Department under several administrations in rejecting or questioning the claims to US citizenship of children born here.
The expansive view is certainly not established, as proponents claim, by the Supreme Court’s decision in Wong Kim Ark. Despite broad language supportive of the general rule that children born here are US citizens, the decision simply did not deal with the citizenship status of children born to parents who have unlawfully entered the United States. Indeed, the Wong Court noted on more than one occasion that the case dealt with a child born here of parents who, though foreigners, “have a permanent domicile and residence in the United States”; and suggested the case might have come out differently if the parents were not “permitted by the United States to reside here; and [were not] ‘subject to the jurisdiction thereof,’ in the same sense as all other aliens resident in the United States.”
The animating purpose of the Citizenship Clause was to place in the Constitution an unbreakable guarantee that there would be no return to the Supreme Court’s infamous 1857 Dred Scott ruling that slaves and their descendants were not and could never be citizens. The language of the Clause extends beyond that immediate purpose to grant citizenship to all persons “born or naturalized in the United States, and subject to the jurisdiction thereof.” The debate centers over what “subject to the jurisdiction” of the United States means. Is it sufficient, as the expansive view holds, that persons born here need merely be subject to American law, except for a small class of exceptions rooted in the common law, such as the families of diplomats and invading armies?
That view cannot explain why members of Native American tribes were excluded from acquiring citizenship by birth, even though they were and are unquestionably subject to American law. The Supreme Court has repeatedly made clear that Congress has “plenary” authority over the Indians and all their tribal relations. That Congress allowed some measure of tribal autonomy does not mean that Native Americans were not subject to US law. Yet, Native Americans were excluded from US citizenship until a 1924 statute conferred citizenship on them.
The senators who drafted and proposed the 14th Amendment’s ratification to the states readily acknowledged that Native Americans were subject to American law. As Sen. James Doolittle (R-Wisc.) pointed out during the debate over the Citizenship Clause:
All the Indians upon reservations within the several States are most clearly subject to our jurisdiction, both civil and military. We appoint civil agents who have a control over them in behalf of the Government. We have our military commanders in the neighborhood of the reservations, who have complete control.
To assuage colleagues’ concerns that the Citizenship Clause would grant citizenship by birth to the Indian tribes, Sen. Lyman Trumbull (R-Ill.), the chairman of the Senate Judiciary Committee, interpreted the clause in the following manner:
The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.”
What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means.
Later in the debate, Sen. Jacob Howard (R-Mich.), a principal sponsor of the Clause, agreed with Trumbull’s interpretation. He stated that the term “jurisdiction” should be “construed so as to imply a full and complete jurisdiction on the part of the United States.” On this understanding, the Citizenship Clause was adopted and later ratified as part of the 14th Amendment.
Congress enacted the 1866 Civil Rights Act to establish birthright citizenship but excluded those “subject to any foreign power.” When the same legislators passed the 14th Amendment two months later and submitted it to the states for ratification using the “subject to the jurisdiction” formulation, they surely had in mind the same exclusion. Statements of principal sponsors indicate that being subject to US jurisdiction meant being subject to its “complete” jurisdiction, “not owing allegiance to anybody else.”
While these legislators did not list who was subject to the “complete” jurisdiction of the United States, executive-branch practice following the ratification of the 14th Amendment provides revealing clues. In the Reconstruction era, the State Department had to adjudicate claims to citizenship made by persons residing abroad who claimed to be born in the United States. These officials had to apply the Citizenship Clause to determine whether these individuals were US citizens by birth.
“Congress can always extend citizenship by birth through statute.”
One such case was that of Ludwig Hausding, who was born to persons living temporarily in the United States. His parents were not born in the United States and had never applied for naturalization. Notwithstanding Hausding’s birth in Michigan, President Chester A. Arthur’s secretary of state, Frederick Frelinghuysen, concluded that Hausding’s claim for citizenship by birth was “untenable, for by [the 1866 Civil Rights Act,] it is made a condition of citizenship by birth that the person not be subject to any foreign power.” He explained further that “the fact of birth, under circumstances implying alien subjection, establishes of itself no right of citizenship; and that the citizenship of a person so born is to be acquired in some legitimate manner through the operation of [a naturalization] statute.”
By contrast, in 1884, the State Department acknowledged the citizenship claim of Alfred P. Jacob, who sought to be struck from military rolls in France on the grounds that he was born an American citizen. Secretary Frelinghuysen accepted his claim of citizenship, reasoning:
It appears from these papers the father was naturalized during the son’s minority. This made the son an American citizen without regard to place of birth. His American birth at Philadelphia is not pertinent, it being asserted that his father registered him in the French consulate as a Frenchman, and so his case may be considered precisely as though he had been brought to this country while a minor. But this gave no claim to military service.
Despite being born in Philadelphia to a non-diplomat residing in this country lawfully, Jacob was not a citizen by birth because his registration in the French consulate as a foreigner exempted him from military service in the United States. Jacob only later became a citizen after his father was naturalized as an American citizen when Jacob was 17 years of age, and so still a minor.
Similarly, in 1879, the State Department received an inquiry about the citizenship status of the two American-born minor sons of the late James W. Smith. Acting Secretary of State Frederick W. Seward concluded that Smith had expatriated himself from American citizenship by voluntarily serving in the Mexican army when there was a Mexican law in effect that deemed all persons in military service to be citizens of Mexico. As to Smith’s American-born minor children, though, Seward had to reserve judgment. He concluded that Smith’s children would lose their status as American citizens (1) if their father had commenced his service in the Mexican army and thus, renounced American allegiance before the children were born, (2) if there had been a Mexican law that attached their father’s Mexican nationality to them while they were still minors, or (3) if they remained in Mexico and became subject to a Mexican law that made them citizens thereof. If the rule of citizenship of birth had been as automatic and inviolate as the expansive view argues, it would hardly be as contingent on the actions of multiple third parties.
The holding of Wong Kim Ark is that a child born here to foreigners who were still subjects of a foreign state acquires US citizenship by birth, but only because the child and parents were lawfully in the US and permanent residents at the time of the child’s birth. Wong’s holding does not extend to children born in the US to parents who were not lawfully here. Aside from their unlawful presence here, the child’s parents remain subjects of a foreign state and presumably—under the rule of jus sanguinis (citizenship by nationality) common everywhere but the United States, United Kingdom and a few other nations—pass that foreign citizenship to their child. Absent the fact of lawful, permanent residence, there would have been no basis for assuming the child was subject to the “complete” jurisdiction of the United States.
While the 14th Amendment provides the constitutional baseline, Congress can always extend citizenship by birth through statute. As an example, by declining to condition naturalization on renouncing any other nationality, Congress has extended citizenship by birth to the children of dual citizens even though such persons may not be subject to the exclusive jurisdiction of the United States. Courts may decide that the effect of a 1940 enactment, 8 U.S.C. § 1401(a), which mirrors the language of the Citizenship Clause, and Congress’s subsequent issuance of long-term nonimmigrant visas to aliens likely pursuant to this provision, is to codify some aspects of the expansive view.
In general, we believe that deferring to Congress questions of citizenship by birth beyond the minimum required by the Citizenship Clause—automatic citizenship at birth for children of parents lawfully admitted to the United States—is the better approach. As the Supreme Court recognized in its 1948 ruling in Takahashi v. Fish & Game Comm’n, Congress has “broad constitutional powers in determining what aliens shall be admitted to the United States, the period they remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization.” Courts should disable Congress in this area only if unequivocally required to by the Constitution. We believe that case has not been made out.