On the very day Donald Trump became president again, he signed an executive order prospectively eliminating birthright citizenship for children born to aliens unlawfully present in the United States.
Immediately, lawsuits were filed in a half-dozen jurisdictions across the country challenging this order.
The groups bringing these suits claim the order disrupts long-standing legal norms governing citizenship. Yet, in fact, Trump’s contention — that birthright citizenship is not possessed by children of illegal aliens under the “correct interpretation of the law” — is exactly right.
Birthright citizenship is conventionally understood to apply to any child born in the United States, regardless of the immigration status of that child’s parents. This view is based on the common law principle of jus soli (“right of soil”), which is said to be incorporated in the Citizenship Clause of the Fourteenth Amendment. This understanding of the Citizenship Clause, however, despite its prevalence in academia and political commentary, is based on a mistaken and incomplete reading of controlling Supreme Court precedent.
In fact, birthright citizenship, as provided for in the Citizenship Clause, as that clause has been authoritatively construed by the Supreme Court, is possessed only by children born in the United States to at least one parent who is lawfully residing in the United States.
Ratified in the aftermath of the Civil War with the aim of remedying the injustices of the Dred Scott decision, the Fourteenth Amendment granted citizenship to “all persons born … in the United States, and subject to the jurisdiction thereof.” This latter phrase has been wrongly equated with “subject to the laws thereof,” and thus to entail that all persons born in the United States are U.S. citizens, with only a few narrow exceptions, such as children born to diplomats.
Yet the Supreme Court has construed the phrase “subject to the jurisdiction” more narrowly, most notably in seminal cases that have been taught — well or ill — in law schools ever since.
In the 1884 case Elk v. Wilkins, decided when American Indians were increasingly integrating into mainstream American society, presented the constitutional issue of whether Indians who had been born within the allegiance of a tribe were “subject to the jurisdiction” of the United States at birth, and thus born American citizens under the Fourteenth Amendment.
The Court ruled that they were not “subject to the jurisdiction” of the United States, on the ground that “jurisdiction” in the Citizenship Clause meant complete jurisdiction, which implied “direct and immediate allegiance” to the United States. The parents of children born in the allegiance of a tribe had only indirect and intermediate allegiance to the United States, through their tribe. (Today, by a subsequent act of Congress, Indians born on reservations are U.S. citizens at birth.)
Twelve years later, in Wong Kim Ark v. United States, the citizenship status of an American-born man of Chinese descent was the issue.
Wong Kim Ark had been born in San Francisco to Chinese nationals, and had been denied entry to the United States after returning from a visit to China as an adult. At the time, Chinese nationals were precluded by treaty from naturalizing as U.S. citizens. Nevertheless, after recounting the history of the common-law jus soli doctrine, and its influence on our Constitution, the Court held that, because the petitioner had been born to parents lawfully residing in the United States, he had been born within the “allegiance and protection” of the United States, and therefore at birth was “subject to the jurisdiction” of the United States. He was thus born a citizen under the Fourteenth Amendment.
That the petitioner’s parents had resided here with the permission of the United States was central to the Court’s holding. Chinese nationals who remain “subjects of the Emperor of China…are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here,” the decision reads, “and are ‘subject to the jurisdiction thereof,’ in the same sense as all other aliens [lawfully] residing in the United States” (emphasis added). The Court explained that to “reside,” in this usage, means to live in a place with the intent to remain there, but not necessarily indefinitely. It is a broader category than “domiciled,” and could apply to long-term visa holders, as well as to lawful permanent residents.
The Court’s interpretation of the Citizenship Clause of the Fourteenth Amendment thus limits its application to children of aliens residing in the country with permission. This requirement implies that children born to foreign nationals living in the country without permission are not subject to its jurisdiction, and that mere tourists, since they are only visiting and do not reside here, also are not so subject. This crucial qualification of common law birthright citizenship by the requirements of both residence and permission therefore excludes from citizenship at birth children both of tourists and of those residing in this country without permission — that is, illegal aliens.
To disregard these requirements would involve interpreting the Court to mean that illegal aliens are within the “allegiance and protection” of the United States.
But the Court specifically stated otherwise, holding that Chinese nationals who were not permitted to reside in the United States were not within its allegiance and protection. The Court could hardly have held otherwise. The phrase “allegiance and protection” describes the reciprocal obligations of citizens and the state that are foundational to a nation. Since illegal aliens are at all times subject to apprehension and deportation, they can hardly be regarded as within the “protection” of the United States.
In further evidence that Wong Kim Ark held that illegal aliens are not subject to the jurisdiction of the United States for citizenship purposes, the Court cited to its own earlier ruling in another immigration case, from 1893, Fong Yue Ting v. United States. There, the Court addressed the legal status of non-resident or unlawfully-present aliens: while they are subject to our laws, they remain outside the government’s “complete jurisdiction.” Had the Court held in Wong Kim Ark that all children born in the United States and subject to its laws — such as illegal aliens—were citizens, it would have run afoul of the combined holdings of Elk — that jurisdiction for citizenship purposes means complete jurisdiction — and of Fong Yue Ting — that illegal aliens and non-resident aliens are outside the complete jurisdiction of the United States. The residence and permission requirements of Wong Kim Ark are therefore necessary to harmonize that case with those prior cases.
Wong Kim Ark’s inclusion of residence and permission requirements marks the Court’s departure from the English common law understanding of birthright citizenship in favor of one more compatible with American constitutional principles.
Indeed, leading constitutional scholars at the time noted that the American approach required residence while the British did not.
The doctrine of jus soli as articulated by common law scholars such as Coke and Blackstone is a product of feudalism: a subject owes a duty of perpetual loyalty to the Crown under the protection of which he is born.
In stark contrast, the American Revolution severed the colonies’ duty to the king in favor of a compact operating by consent of the governed rather than by perpetual, unchosen duty. The purpose of the Civil Rights Act and the Fourteenth Amendment was not to reinstate the common law version of birthright citizenship; rather, it was to extend the principles of the Declaration of Independence to freed slaves and to nonwhite immigrants such as Chinese-Americans.
As it is currently applied, birthright citizenship not only returns us to a feudal past, but also undermines the ability of the people of the United States to set forth standards by which children born to foreign nationals may become citizens. It incentivizes “birth tourism” and mass illegal immigration, both of which treat the United States as a provider of material benefits rather than a political community towards which one owes allegiance and duties. Unlike illegal aliens and temporary guests, lawful permanent residents are incentivized to invest in their political community, and to adopt the customs and civic responsibilities of that community. Their children’s subsequent inheritance of those responsibilities further facilitates assimilation and social cohesion.
The rule of Wong Kim Ark v. United States reflects the compact approach to self-government inherent in the founding principles of this country while serving the purpose of the Fourteenth Amendment. Applying the rule as it was intended to be understood would remedy the above-mentioned policy deficiencies of an over-expansive view of birthright citizenship without the need to amend the Constitution, and efficiently resolve the flurry of lawsuits against President Trump’s executive order.
Gabriel Canaan is an attorney at the Immigration Reform Law Institute (IRLI) in Washington, DC. A native of Southern California, he is a graduate of William & Mary Law School, and, prior to joining IRLI, served as a law clerk on the U.S. Senate Committee on Homeland Security & Governmental Affairs.
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