Since it was reported yesterday morning that Pres. Trump plans to end the practice of granting automatic citizenship to all children born in the United States regardless of the parents' immigration status, most, if not all, mainstream publications have run op-eds explaining why such a move would be unconstitutional. Even the Trump-friendly publications -- the New York Post and The Washington Times -- argue that it can't be done. But by focusing solely on the "plain text" of the 14th Amendment, the writers of these op-eds are missing (or intentionally avoiding) the ways that Pres. Trump could end Birthright Citizenship.
The first sentence of the 14th Amendment reads:
"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."
It is an axiom of legal interpretation that every term included in a legal text has a specific meaning and is not simply redundant. Thus, the phrase “subject to the jurisdiction thereof” must mean something different from “born or naturalized in the United States.” Those who haven’t studied the history of the 14th Amendment usually argue that “subject to the jurisdiction of the United States” simply means subject to the laws of the United States, which of course illegal aliens and foreign visitors are.
The history of the amendment, though, points to a broader political jurisdiction, rather than a legal one. In fact, the 14th Amendment’s language was derived from the 1866 Civil Rights Act, which said that “[a]ll persons born in the United States, and not subject to any foreign power” would be citizens.
Illinois Sen. Lyman Trumbull, who was the Chairman of the Senate Judiciary Committee during the adoption of the 14th Amendment (and co-author of the 13th Amendment which abolished slavery), said during its debate that “subject to the jurisdiction of the United States” meant not owing allegiance to any other country, just as with the similar language in the Civil Rights Act.
Moreover, in pushing for its adoption, the author of the citizenship clause in the 14th Amendment, Sen. Jacob Howard of Michigan, said this on the Senate floor:
"This will not, of course, include persons born in the United States who are foreigners, aliens, foreign ministers accredited to the Government of the United States, but will include every other class of person."
The intent of the 14th Amendment was to secure citizenship for the newly freed slaves and their offspring born on U.S. soil, but the amendment has been used over the last few decades to justify the granting of automatic citizenship to the U.S.-born children of foreign visitors and illegal aliens. Based on statements made by Pres. Trump on the topic, his interpretation of the amendment matches the intent of its authors.
Using Administrative Authority
One way Pres. Trump could end birthright citizenship through executive order is by exercising the administrative authority granted to him by Article II of the Constitution.
As the nation's chief executive, the President oversees all federal agencies. But no federal agency actually grants formal citizenship to every child born in the United States. Instead, the states issue birth certificates documenting that the birth occurred within its borders along with other vital information, including the parents' information. The federal government uses those state-issued birth certificates as evidence of citizenship to issue Social Security numbers and U.S. Passports, which are then used as proof of citizenship.
Using his administrative authority, Pres. Trump could simply order the Social Security Administration to issue Social Security numbers and the Department of State to issue passports only to children born in the United States with at least one parent who is a U.S. citizen or lawful permanent resident.
Pres. Trump may be able to use the federal rulemaking process to end birthright citizenship. He could order Attorney General Jeff Sessions to draft a rule that defines the term "subject to the jurisdiction" based on the original intent of the 14th Amendment.
Congress has codified the 14th Amendment in 8 U.S. Code § 1401(a), which begins:
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
Congress has given the executive branch the authority to use the rulemaking process to carrying out federal immigration law. That authority was used to enact 8 CFR 101.3 that excludes children born in the United States to foreign diplomats from receiving automatic citizenship.
"A child born in the United States is born subject to the jurisdiction of the United States and is a United States citizen if the parent is not a “foreign diplomatic officer”..."
A rule would be similar to legislation that's been repeatedly offered in Congress restricting the granting of automatic citizenship to children born in the U.S. with at least one parent who is a citizen, legal permanent resident, or alien serving in the military.
Unsettled by the Supreme Court
The scope of the 14th Amendment has never been fully defined by the Supreme Court. The closest the Court has come was in the 1898 Wong Kim Ark case, in which the court held that a child born to lawfully domiciled (the equivalent to lawful permanent residence) Chinese parents was a citizen at birth. Thus, whatever Pres. Trump decides to do will inevitably be challenged, but at least he’s willing to push the issue since Congress has failed to act.
CHRIS CHMIELENSKI is the Deputy Director for NumbersUSA
Updated: Wed, Oct 31st 2018 @ 6:04pm EDT