The Unconstitutionality of Trump’s Executive Order to End Birthright Citizenship

ANGEL SANCHEZ—Who are “All persons born…in the United States and subject to the jurisdiction thereof”? The answer governs who is constitutionally entitled to birthright citizenship. The Citizenship Clause provides that:

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. United States Const. Amend. XIV, Section 1, Clause 1.

In a recent interview, President Trump admitted that he is looking into plans to end birthright citizenship through an executive order. The President was not specific as to which type of birthright citizenship he plans to end, though he has previously targeted in his rhetoric the children of undocumented parents born in the U.S. Additionally, he wasn’t specific as to exact content of the order, but he was clear, however, that he will be acting unilaterally. An executive order to end any form of birthright citizenship granted by Congress (and certainly by the Constitution) is unconstitutional. Additionally, even if the President issues an order to get the question before the U.S. Supreme Court—a likely scenario in my opinion—the Court should exercise judicial restraint and avoid reaching the birthright citizenship question if, as a threshold matter, the order itself is unconstitutional on other grounds (i.e., the separation of powers ground discussed below).

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Youngstown and Executive Orders

Justice Jackson’s concurrence in Youngstown v. Sawyer laid out the currently accepted tripartite framework for analyzing presidential actions. Generally speaking there are three groups of situations or, as the Court said in Moore v. Regan, a spectrum within which to analyze executive action: (1) presidential authority is at its maximum when acting pursuant to an express or implied authorization of Congress; (2) it varies when Congress is silent on the president’s actions and does not grant or deny that authority; and (3) it is at its lowest, subject to the greatest scrutiny, when the president acts contrary to the express or implied will of Congress. Putting the 14th Amendment aside, if Congress has acted on the subject of birthright citizenship, an opposing executive order would fall into the last category and likely make it an unconstitutional usurpation of Congress’ power.

Congressional Action on Birthright Citizenship:

Naturalization Act of 1790: This federal law provided a pathway to citizenship for free White persons of good moral character. It allowed for birthright citizenship to children born abroad whose parents were both U.S. Citizens. It specifically rejected citizenship being passed down to descendants whose fathers never resided in the U.S. This statute was later modified throughout the 1800s and 1900s to ultimately provide citizenship to children who are born abroad to at least one parent with U.S. citizenship.

Civil Rights Act of 1866: After the Civil War, this federal law became the precursor to the Citizenship Clause in the 14th Amendment providing for birthright citizenship to “. . . all persons born in the United States, if they are not subject to foreign power.” Some may argue that undocumented and even documented people are subject to foreign powers and, therefore, their children are not entitled to birthright citizenship. However, the framers expressly abandoned this language later in the 14th Amendment (1868) and instead only required that a person be subject to the jurisdiction of the U.S. Under the former, children born to persons subject to U.S. jurisdiction still did not qualify for birthright citizenship if they happen to be subject to a foreign power—that ended with the 14th Amendment.

Immigration and Nationality Act (INA) of 1952: Unlike the Civil Rights Act of 1866 (where birthright citizenship was only given to children born to parents that were not subject to a foreign power), the INA codified the 14th Amendment’s less restrictive language (8 USC s. 1401). In fact, Congress actually provided greater protections by offering birthright citizenship to any child born in Alaska (except non-citizen Indians) without the jurisdiction qualifier (8 USC s. 1404). The same is true for any person born in Hawaii (8 USC s. 1405).

Pending Congressional Bills: H.R. 140 Birthright Citizenship Act of 2017 by Representative Steve King. This bill seeks to amend and narrow the INA of 1952 to consider a person born in the United States “subject to the jurisdiction” only if at least one parent is: (1) a U.S. citizen or national, (2) a lawful permanent resident alien who resides in the United States, or (3) an alien performing active service in the U.S. Armed Forces. Senator Lindsey Graham announced last month that he plans to introduce a bill similar to the President’s order.

Trump’s Executive Order Contrary to the INA

Because it is undisputed that an executive order cannot change the Constitution, I suspect an order denying birthright citizenship would likely be under the pretense that it is merely interpreting the “subject to the jurisdiction thereof” portion of the Citizenship Clause, not changing it. This “interpretative” approach, while highly suspect, would still seem feasible—at least to get the question before the Court—if Congress had not already acted in this area. Without Congressional action, the order could fall into the uncertain-second group of the Youngstown tripartite test and, if it survived, would allow the Court to issue, for the first time, an interpretation on the Citizenship Clause regarding undocumented parents. However, because Congress has acted through the INA, an executive order to the contrary would likely be unconstitutional.

Congress through its naturalization power can grant birthright citizenship to the children of undocumented parents (even if the Constitution did not). Indeed, Congress used that power to declare that the status of parents does not matter for children born in Alaska or Hawaii. Moreover, the longstanding practice and shared interpretation of birthright citizenship for all children born in the U.S. (except for children of diplomats) has been incorporated and unopposed by Congress since the enactment of the INA. Congress’ interpretation is further gleamed from the purpose of Rep. Steve Kings’ bill. He seeks to have the INA’s interpretation changed to exclude undocumented parents from being considered “subject to the jurisdiction.” This would only make sense if the current understanding of the INA is that undocumented parents are indeed subject to the jurisdiction of the U.S. In sum, Congress has gone from birthright citizenship for children born abroad if both parents were citizens (Naturalization Act of 1790); to birthright citizenship for anyone born in the U.S. whose parents were “not subject to foreign power” (Civil Rights Act of 1866); to birthright citizenship for anyone born in the U.S. whose parents are “subject to the jurisdiction” of the U.S. (INA of 1952); to birthright citizenship for anyone born in Alaska or Hawaii without any qualifier whatsoever.  Thus, Congress’ evolving action, intent, and response to the application of the INA has been in support of, not hostile to, birthright citizenship as we know it. Trump’s order, even if parading as an attempt to “correctly” interpret the 14th Amendment, would still fail in the face of existing and controlling congressional action. An opposing executive order would be, at a minimum (without even considering the 14th Amendment), a usurpation of Congress’ naturalization power and likely unconstitutional under Youngstown­’s tripartite test.