Professors Address Trump’s Birthright Citizenship Executive Order
The Karsh Center for Law and Democracy recently hosted the first lecture of its tripartite series on Trump’s executive orders. The lecture, titled “Ending Birthright Citizenship?,” addressed Trump’s January 20 Executive Order No. 14160, “Protecting the Meaning and Value of American Citizenship,” which purports to curtail birthright citizenship. Professors Aditya Bamzai and Amanda Frost together dissected the order before a packed classroom, sharing the legal history leading up to the order and their analysis of its legality and practical consequences.
The Fourteenth Amendment was ratified in 1868 by the Reconstruction Congress. Professor Frost explained that Congress intended to override Dred Scott, in which the Supreme Court barred black people, and anyone deemed to belong to “an inferior or subordinate class,”1 from attaining citizenship. The first sentence of Section 1 of the Amendment, the Citizenship Clause, sought to accomplish this by declaring that “[a]ll 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.”2 It is this language that has become the subject of much scrutiny since January 20. Professor Bamzai quipped that, like many others, he had been poking around this area of the law over the last couple of weeks, but that Professor Frost had a career worth of experience studying immigration law.
Executive Order No. 14160 revokes birthright citizenship for children of parents who are neither citizens nor green card holders. It does so by reinterpreting both the Citizenship Clause and 8 U.S.C. § 1401, which is a federal statute that explicitly codifies birthright citizenship. Both the Citizenship Clause and the federal statute include the same “subject to the jurisdiction thereof” caveat, which is ultimately what the executive order reinterprets to exclude an entire subset of the population that, up until this point, has qualified for birthright citizenship.4 It is worth noting that the jurisdiction caveat is not superfluous. Both professors discussed the few well-established exceptions to birthright citizenship: children of diplomats, people born on foreign public ships, and, for a period of time, Native Americans. However, the executive order’s interpretation of the caveat is a dramatic narrowing of the meaning of “subject to the jurisdiction thereof,” even factoring in earlier exceptions.
Before delving into the constitutional questions, Professor Bamzai encouraged the audience to take a step back and think about birthright citizenship from policy and moral standpoints. The professor noted that there are “all kinds of reasons” why countries restrict birthright citizenship. Egypt, where the professor’s sister was born, and India, for example, simply do not have birthright citizenship for understandable, if not objectionable, historical and political reasons. Professor Bamzai emphasized that as he educated himself on the issue, he was keeping an open mind to the moral and policy questions accompanying the many debates the executive order has elicited.
One of the policy angles that Professor Bamzai considered was that of birth tourism. He cited a 2017 statistic that approximately 10,000 US citizens were born to nonresidents, which he found significant. He expressed interest in the possible foreign affairs issues that could result from children being born here, immediately returning to their home countries, and later being conscripted by their home countries to fight, possibly against the US. If these individuals wanted to avoid conscription and invoked their rights as US citizens, would the US be obligated to step in? What if these individuals fought against the US in combat; would they be entitled to special protections? Professor Bamzai explained that this is not an entirely novel question, citing post-World War II treason prosecutions of Americans who fought for the Nazis. Professor Frost viewed birth tourism as far less significant, contending that the issue is a “distraction” involving a negligible number of people, and that a federal statute already prohibits people from coming to the US purely for birth tourism.
The professors turned to the legal grounding for birthright citizenship. The Citizenship Clause did not, in practice, instantly confer universal or near-universal birthright citizenship. Professor Bamzai highlighted one early instance in which an individual born in Ohio moved to Germany and applied for a US passport decades later. His application was denied. It was not until 1898 that the Supreme Court interpreted the Citizenship Clause to enshrine birthright citizenship in the seminal United States v. Wong Kim Ark case. The plaintiff, Wong Kim Ark, was born in the US to legally present parents. The court upheld his claim of citizenship at a time when the US was deeply hostile to Chinese immigrants. Professor Frost remarked that the plaintiff’s attorneys very shrewdly told the press that a loss for their client would bar children born to all immigrants from attaining birthright citizenship. Both professors acknowledged that there is some debate around the precise scope of Wong Kim Ark’s holding. Professor Frost reported that some scholars try to narrow the holding to legally present and domiciled parents. She finds the domicile attribute to be dubious, seeing as the plaintiff’s parents had left by the time of the lawsuit. Professor Bamzai remained undecided about the dueling interpretations.
Regardless of its treatment of domicile, Wong Kim Ark involved legally present parents. Professor Frost turned to the issue of undocumented immigrants whose children were born in the US. Congress barred the slave trade in 1808 but, the professor noted, the slave trade continued illegally, resulting in the presence of illegal aliens. Professor Frost’s view is that the Reconstruction Congress knew about this and intended to confer citizenship upon all formerly enslaved people, including those who had been brought to the US post-1808. This viewpoint remains a highly debated issue. This writer has recently heard others claim that illegal immigration was simply not a well-developed concept in the early decades of US history, and thus historical and legal evidence on this point is weak.
Looking ahead, Professor Frost predicts that the executive order will not become law without Supreme Court intervention. It remains an open question whether the case would be decided under 8 U.S.C. § 1401 or the Citizenship Clause. It also remains unclear how people will prove their citizenship if the executive order becomes law. A birth certificate would no longer suffice. As Professor Frost noted, this is a heavy burden, and anyone's citizenship could be suspect.
