In a recent interview with Axios on HBO, President Trump signaled his intention to end birthright citizenship by executive order. He did not say very clearly how he intended to do this. The Media and social media immediately exploded in outrage defending birthright citizenship as described in the 14th Amendment of the Constitution, which reads in part:
“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.”
On its face, it seems to say all persons born in the US are automatically granted citizenship by the mere fact of that birth, but there is a caveat there, “and subject to the jurisdiction thereof,” which is what the President may be talking about. Do the words “subject to the jurisdiction thereof” exclude the children of illegal aliens or other classifications of aliens and foreigners from birthright citizenship?
It may very well. In 1873, the then Attorney General of the United States said, “The word ‘jurisdiction’ must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.”
In 1873 it would appear that people entering the US unlawfully would not have birthright citizenship conferred to their offspring because they were not under the full jurisdiction of the US in the way a citizen or resident alien would be. This is not a novel idea put forth by the AG. In the Slaughterhouse cases of just a year earlier (1872), the Supreme Court, speaking of the privileges and immunities clause in the 14th Amendment, stated the same thing: “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Why were such people excluded? Looking at the writing done at the time, it seems jurisdiction was about one giving complete allegiance and loyalty to the United States. Reading “subject to the jurisdiction” of the United States as simply being subject to our laws really doesn’t make any sense. Any person in the US, even a foreign tourist, is subject to US laws while here. That should not confer automatic citizenship to a child they have while here in the country on a tourist visa, but that appears to be what is occurring.
There is an entire business overseas right now of anchor baby tourism, primarily attracting expectant Russians to Miami and Chinese to the West Coast. The packages include accommodations and access to common language speaking lawyers and doctors to assist with having the child and doing the legal paperwork. I don’t believe anyone could rationally argue that what the Founders intended was for birthright citizenship be extended to those who came here to have a child and then return to their home country where they reside and maintain loyalty and allegiance… while having an “Americansky” baby they could use to escape their native country and come to the US, if things go south.
In response to anchor baby tourism, the UK, Australia, South Africa, France, New Zealand, Germany, and Ireland have all changed their immigration laws requiring the child to have been born to at least one citizen parent or to a legal permanent resident with several years of domicile. It would appear that no European country grants birthright citizenship unconditionally. They are not accused of racism for doing so.
In 1884, the Supreme Court heard the Wong Kim Ark case where a birthright citizen was denied entry back into the US after visiting China. The Court ordered that he be admitted on the basis that his parents, though born in China, were permanent residents with domicile in the United States. In effect, his birthright to US citizenship was valid because his parents were recognized as legal residents. This would suggest the inverse is also true: that the child of a person illegally residing in the US would not be a birthright citizen.
This is further confirmed by the fact the Native Americans born within the physical confines of the United States were not considered birthright citizens because it was considered that they were under the jurisdiction of their tribe and it’s laws and not those of the United States. An Indian who left the reservation to live in the various states had to apply for US citizenship (and surrender Tribal citizenship) and be naturalized, until automatic full citizenship was granted to them by the Indian Citizenship Act of 1924.
Interpretation of the Constitution is about the black letter of what it says, what the authors intended when they wrote the law and court cases that address it when challenged. When the 14th Amendment was crafted in 1866, Senator Jacob Howard was on the drafting committee and said this about the citizenship clause related to birthright citizenship:
“Every person born within the limits of the United States and subject to their jurisdiction, is, by virtue of Natural Law and national law, a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”
Again, it seems clear that the framers of the 14th Amendment intended to exclude people called aliens and foreigners who are persons that are not legal residents of the US or Naturalized US citizens. It can be argued that people entering the country illegally are actively avoiding being subject to US jurisdiction, by breaking the law. Some illegal aliens may consent to be under US jurisdiction after they arrive, but consent is a two-way street. The US government also has to consent to extend that full legal jurisdiction over them. By stopping those who enter the country illegally, charging them with a crime and seeking to deport or expel them permanently, the US government clearly signals it does not give its consent to extend jurisdiction over certain persons. Just as it does when it denies entry to a foreigner who has committed serious crimes in their own country. Entry into the US by a foreign person is not a right.
So, can the President, by executive order, simply end Birthright citizenship for all persons in the US? It’s doubtful. But he could, by executive order, reaffirm that persons who have entered the US illegally are not subject to its full jurisdiction and that birthright citizenship is not extended to any child born to them in this country. That is not something new, but a return to what seems to have been the original intent all along.