President Trump’s ability to get rid of birthright citizenship by executive order

If Dean Eastman, Senator Jacob Howard, and other proponents of the “jurisdictional allegiance” theory of the original meaning of the citizenship clause of the 14th Amendment are correct, then President Trump does have the power to change the practice by executive order.

The President of the United States is the head of the executive branch of the federal government. In this capacity, the president may direct executive agencies to act in accordance with what he believes to be the original meaning of a statute, so long as that meaning has not been explicitly refuted by the judiciary. The president therefore has the discretion to order his executive agencies to deny passports (State Department), refuse to issue Social Security numbers (Social Security Administration), or deport persons (Justice Department, Homeland Security Department), provided these actions do not otherwise violate federal law or the constitutional rights of affected persons.

The president’s power to do these things does not exist in a vacuum. This power is contingent on an ambiguous statute, the meaning of which, on the specific issue at hand, has not been clarified by the Judiciary, or by Congress through legislation. As noted above, case law from the United States Supreme Court does not clear up whether both the children of legal and illegal alien migrants are to be conferred birthright citizenship. The rule for the former is clear, the law regarding the latter is not.

Congress, for its part, codified the citizenship clause of the 14th Amendment in Section 301 of the Immigration and Nationality Act of 1952 (INA). This legislation simply repeats the portion of the language from the 14th Amendment that states a person will be a citizen of the United States if they are “born in the United States, and subject to the jurisdiction thereof.” The president may choose to go with the interpretation of this language put forward by Senator Jacob Howard, rather than the alternative reading posited by Attorney General Bates, and he may direct his executive agencies to enforce the law according to this reading. He may do this because Congress did not add any explanatory guidance, beyond the plain text of the Amendment, when it codified the citizenship clause by legislation, and because the judiciary has yet to rule germanely on the specific point at issue.

Because Congress did not add any additional explanatory guidance, and because the legislative history of the Immigration and Nationality Act of 1952 does not indicate that Congress had a different understanding of “jurisdiction” in 1952 than that which may have prevailed in 1868 with the ratification of the 14th Amendment language that makes up the statute, an executive order to clarify a method of enforcement of these laws by executive agencies is appropriate. The president is within his rights to argue that both the 14th Amendment and the INA have been wrongly interpreted, and he is within his power to order his executive agencies to cease enforcing them in violation of the original meaning of their terms.

If President Trump does issue such an executive order, the federal government will be sued and the issue of whether the children of aliens illegally present in the United States are automatically conferred citizenship upon their birth will finally be litigated directly. The Wong Kim Ark case contains dicta in the affirmative, but dicta is neither binding on future cases nor the parties affected. The holding in Wong Kim Ark was too narrow to answer the question definitively, and evidence as to the original meaning of the citizenship clause is contradictory at best. Hopefully, when the case comes before the United States Supreme Court it will choose to rule broadly on the question of birthright citizenship, and not constrain itself to a narrow procedural holding on the ability of the president to enact such change through an executive order. It is long past time that this question was answered.

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