Commentary
Since the adoption of the 14th Amendment in 1868, the United States has recognized birthright citizenship; that is, if a person is born on U.S. soil, that person is a U.S. citizen regardless of the citizenship of their parents. In one of his first official actions, President Donald Trump issued an executive order that instructed U.S. officials to no longer recognize birthright citizenship. The essence of the order is that children born to parents who are in the U.S. illegally will not be recognized as citizens. His order was met with immediate outcry from immigration advocates and has already been challenged in numerous lawsuits, one of which has resulted in a temporary stay of the order. A bill has also been introduced in Congress with similar effect.
While many have predicted the courts will summarily strike down the order, the issue is quite complicated and nuanced, and the outcome may not be as clear as many predict. It seems likely the issue will ultimately land in the Supreme Court, which was probably Trump’s intention in issuing the order.
Soil or Blood
Countries throughout the world recognize two fundamental doctrines of citizenship: jus soli (Right of Soil) and jus sanguinis (Right of Blood). Right of Soil recognizes citizenship based solely on where the person was born. Its origins are the feudal concept that loyalty to the lord and, ultimately, the sovereign being bound up with the land. Right of Blood recognizes citizenship based on the nationality of the child’s parents and traces its origins to Roman law. From my review, it does not appear that any country strictly uses jus soli or jus sanguinis. Rather, all countries incorporate some elements of each.However, on a continuum of the two doctrines, the U.S. would be far toward the jus soli end compared to most of the world. This is fairly typical of countries that outlawed slavery in the 19th century, especially those in the Western Hemisphere. At that time, those countries faced dealing with the citizenship status of a large number of former slaves, and many, like the U.S., adopted constitutional amendments that broadly gave citizenship to former slaves born in their countries. In the U.S., the 14th Amendment was enacted to overrule the U.S. Supreme Court case of Dred Scott v. Sanford (1857), which ruled that African Americans, free or enslaved, could not be U.S. citizens.
This is a map from the International Monetary Fund that shows the distribution of these doctrines:
There are two questions we must face in addressing this issue. The first is a legal one. Can a president or Congress overturn a doctrine recognized in the U.S. for over a century by executive order or legislation? The second issue is whether an extreme reliance on the jus soli doctrine is the best policy for the country.
Legal Arguments on Birthright Citizenship
The legal question turns to the interpretation of Section 1 of the 14th Amendment. It provides:“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” (Emphasis added.)
The crux of this issue is the interpretation of the clause “subject to the jurisdiction thereof.” Clearly, the phrase is intended to limit the grant of citizenship based on the birthplace in some way. However, the phrase “subject to the jurisdiction thereof” is hardly precise. During the debates surrounding the adoption of the 14th Amendment, the framers of the amendment appear to have been referring to Indian tribes because of their semi-autonomous status and children born to foreign diplomats or foreign militaries during their residency in the U.S.
I was unable to find any discussion at the time of the issue of children of parents in the U.S. without legal authority. However, the U.S. needed labor at that time for its rapidly expanding economy and frontier. It was relatively easy to come to the U.S. and apply for citizenship. In fact, legislation like the Homestead Act (1862) actively encouraged immigration. So, the issue of citizenship for immigrants who had come to the U.S. in violation of its laws was likely not on the minds of any of those drafting the amendment.
The issue of whether a child born in the U.S. of parents who were not U.S. citizens was first considered by the U.S. Supreme Court in
United States v. Wong Kim Ark in 1898. Ark was the child of two Chinese immigrants who had settled in San Francisco but never became U.S. citizens. After residing in San Francisco for over twenty years, his parents returned to China in 1890. The parties stipulated that Ark’s parents were Chinese citizens at all times.
In 1895, Ark traveled to China. When he returned, he was detained by customs officials seeking to enforce provisions of the Chinese Exclusion Act, passed in 1882. The act was passed during a period of rampant anti-Chinese sentiment in the U.S. and, particularly, in California. It expressly forbade any Chinese immigrant who left the country from returning. However, U.S. citizens were excluded. Therefore, whether the act applied to Ark and whether he could return to the U.S. after he visited China turned on whether he was a U.S. citizen.
In a 6-2 decision, the Supreme Court ruled in Ark’s favor, broadly declaring that the jus soli doctrine was required by the 14th Amendment and narrowly interpreting the “subject to the jurisdiction” qualifier. In reaching the decision, the majority relied heavily on English common law, which was rooted in the feudal system. However, in a dissent, Justices Fuller and Harlan argued that English common law did not bind the U.S. They contended that the standard was obsolete, especially in America, which was the antithesis of feudal society.
According to Fuller and Harlan, “(n)ationality is essentially a political idea and belongs to the sphere of public law.” Their dissent implies that Congress is constitutionally allowed to define the limits of what it means to be subject to the jurisdiction of the United States. Whether the
Ark case can be read as an absolute prohibition on Congress, more broadly defining what the “subject to the jurisdiction” phrase includes or, more narrowly, only holding that Congress went too far in the Chinese Exclusion Act seems to be an open question. (This is an
excellent discussion of the issue by two highly respected legal scholars.)
It is somewhat ironic that today’s progressives are flocking to the majority view in Ark. Justice Harlan is known as a liberal dissenter of the Supreme Court of that era when the court primarily supported the status quo. When reading the two opinions, I thought the dissent reflected more contemporary views and values than the majority opinion.
It is important to note that the Supreme Court would not have to overtly overrule Ark to uphold Congress’ authority to redefine the limits of birthright citizenship. Ark is clearly distinguishable on numerous facts, most notably that Ark’s parents were legally in the U.S. at the time of his birth.
But even if recognizing that Congress has the authority to define the “subject to the jurisdiction” clause required overruling Ark, the current court has shown little reluctance to overturn long-standing precedent. The bottom line, in my opinion, is that the Supreme Court could decide either way on whether Congress can more broadly interpret the “subject to the jurisdiction” phrase.
Of course, even if Congress has the right to limit birthright citizenship, there is still the question of whether a president can do so by executive order. In the case where Congress has failed to act, does the president have the right or authority to give direction to his administration in the absence of any direction from Congress? That seems to be much more of a stretch. Still, I have been amazed by the courts’ deference to regulatory authority in the last few decades, so I would not rule out the possibility that the courts might ultimately uphold his order.
Policy Considerations
Setting aside the legal issue, is birthright citizenship a good policy for the U.S.? I think the proponents for it have a harder time here.First, such a policy encourages prospective mothers to come to the U.S. illegally to obtain citizenship for their children. While most of us can sympathize with a mother aspiring to give the great gift of American citizenship to her child, nonetheless, that does not seem like a rational way to dole out citizenship. Certainly, it is easy to imagine a rational immigration legal structure that would encourage the type of immigration the U.S. needs while also screening those who would cause harm or become a burden to our country. It is easy to imagine such a functioning immigration system because such systems exist in much of the rest of the world.
One of the serious difficulties in changing our policy would be the transition and the administrative and litigation nightmare that would ensue. For example, there are literally millions of people in the U.S. who believe they are citizens by virtue of being born here, and the government has treated them as such for decades in many cases. Suddenly stripping those individuals of their citizenship would likely run afoul of the Constitution’s prohibition of ex post facto laws, in addition to being profoundly unfair. Trump’s executive order avoids this problem by restricting it to children born 30 days after its issuance.
Both Trump’s executive order and the pending legislation provide that if one of the parents is a citizen, the child will be as well. How exactly would it be determined if the father was a U.S. citizen? Who would have the burden of proof? Will we run DNA tests on every child born to determine that heritage? Can you imagine the number of lawsuits that would be filed over that? At a minimum, a massive new federal bureaucracy would be required to determine citizenship claims.
Adopting a rational immigration system that included better criteria for granting citizenship would greatly benefit our country. Many of the issues surrounding birthright citizenship are the legacy of the inability of Congress to enact such a rational system. I wish I believed Trump’s executive order might spur a thoughtful debate and legislative action in that direction. But sadly, our representatives from both sides of the aisle seem more interested in demagoguing the issue than working together to enact a rational system.
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
