Tuesday, October 30, 2018

Can Trump Eliminate Birthright Citizenship? Can Congress?

by Michael C. Dorf

This morning an NPR reporter referred to President Trump's suggestion that he would "end birthright citizenship" by executive order as "vaporware"--a rumored product that never actually materializes, intended only to thrill his fans, much like Trump's promised impending middle class tax cut. I hope that proves correct, but these are dark times in which one should take seriously even the most outlandish suggestions. Indeed, South Carolina Senator Lindsey Graham has already raised Trump's opening bid, saying that he plans to introduce legislation accomplishing by statute what Trump proposes to accomplish by executive order. Is either path open?

The short answer is no. The long answer is also no, but in a way that may prove interesting to explore.

Following the Civil War and in order to overrule the abominable SCOTUS decision in Dred Scott v. Sandford, Congress opened the Fourteenth Amendment with the citizenship clause: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” When Trump and others say they want to end birthright citizenship, they cannot possibly mean they want to end it for everyone. That obviously could not be done without a  constitutional amendment. Accordingly, we must understand them to mean they want to end birthright citizenship for persons born in the US to undocumented immigrant parents. How? By arguing that such persons fall within the implicit exception covering persons not "subject to the jurisdiction" of the US.

The difficulty with this position is that, historically, the "subject to the jurisdiction thereof" language has been understood to be a narrow exception for children born to invading armies, to foreign diplomats, or on foreign ships--as the Supreme Court held in the Wong Kim Ark case in 1898. Controversially, the Court held that members of Indian tribes are also not "subject to the jurisdiction" of the US in Elk v. Wilkins, but Congress changed that result by statute. Because of the statute, the courts have not had occasion to address the question whether Elk remains good law as a constitutional matter, but even if so, it would not mean that persons born in the US to undocumented immigrant parents would fall within the "subject to the jurisdiction" exception.

As I explained in a 2015 column, although Wong Kim Ark did not involve undocumented immigrant parents, its logic very much extends to them. Children born to undocumented immigrants (and for that matter, the parents themselves) are certainly subject to US jurisdiction. To much the same effect was testimony that Walter Dellinger gave to Congress in 1995.

Thus we have the short answer: Persons born in the US to undocumented immigrant parents are US citizens, full stop. Neither an act of Congress nor an executive order can change that. Only a constitutional amendment can.

But let's suppose for the sake of argument that the very well-established conventional wisdom is wrong and that persons born to undocumented immigrants are not "subject to the jurisdiction" of the US. If that were so, then presumably Congress could pass a statute making clear that such persons are not US citizens.  However, on what theory could the president accomplish the same goal by executive order without an act of Congress? After all, Article I, Section 8 of the Constitution assigns to Congress, not the president, the power "To establish an uniform Rule of Naturalization."

How might Trump's advisers nonetheless conclude that he can alter immigration law by executive order? Presumably, the argument would go something like this:
1) (We are counterfactually assuming for this exercise that) the Fourteenth Amendment doesn't itself confer citizenship on persons born in the US to undocumented immigrant parents, because they are (again, per counterfactual assumption) not "subject to the jurisdiction" of the US. 
2) Neither has Congress exercised its Art. I, Sec. 8 power to extend citizenship to such persons. True, Congress has, in 8 U.S.C. sec. 1401(a), codified the Fourteenth Amendment's language, but in so doing, it merely incorporated (what we are counterfactually assuming to be) the meaning of the Fourteenth Amendment itself, which does not cover persons born in the US to undocumented immigrant parents. 
3) Because neither the Constitution nor any statute confers citizenship on persons born in the US to undocumented immigrant parents, they are not US citizens, and an executive order instructing executive officials to treat them as non-citizens would simply recognize that fact. It would not purport to exercise any presidential authority to make or unmake citizens, and thus would not usurp congressional power.
That's a bad argument for the obvious reason that the assumption on which it rests is false. In fact, as discussed above, the Fourteenth Amendment definitively resolves the issue. But even if we grant the implausible counterfactual premise on which the argument rests, it could still fail. It might do so at step 2.

8 U.S.C. sec. 1401(a) uses the exact same language as the Fourteenth Amendment, but it does not follow that it means the exact same thing. If that sounds odd, consider 28 U.S.C. sec. 1331 and 28 U.S.C. sec. 1332, each of which uses the exact same language as the Constitution's Article III but has been interpreted differently from the constitutional language, based on context and purpose. One could well imagine a similar move being made for 8 U.S.C. sec. 1401(a). Adopted at a time when Congress would have thought that the "subject to the jurisdiction" exception did not cover persons born in the US to undocumented immigrant parents, the statutory language would then be construed to grant citizenship to such persons, even if the Constitution itself is construed as not granting them citizenship.

To be sure, this is pretty much purely an academic exercise. A world in which the Supreme Court would read the Fourteenth Amendment to allow Congress to strip citizenship from persons born in the US to undocumented immigrant parents is also a world in which the Court would likely read the statute as authorizing the president to accomplish the same thing unilaterally. Despite everything, I am hopeful that we do not yet live in that world.


Laci The Dog said...

Doesn't this also violate the prohibition on ex post facto laws for the people who are already here?

Joe said...

This isn't a new debate. This idea was a thing back in the 1990s too.

The text and history makes it a fail. But, the matter has not been specifically decided by the Supreme Court (generally it has but as Jack Balkin once said, to paraphrase, the crazy can become the authorized with the right supporters -- see, e.g., the Medicaid decision in the Affordable Care Cases; even Randy Barnett said it was a longshot argument).

Eric Segall has written a lot about the confused analysis of various "originalists." Resting on clear text and history will only go so far. The author of a book on birthright citizenship tweeted on this subject and put forth a possible (though she did not agree with it) way for courts to uphold not recognizing citizenship rights of undocumented immigrants.

The Muslim ban et. al. seemed outrageous. Hopefully, this is really so. Anyway, if you grant the wrongful premise they never were citizens, not sure an ex post facto law argument works.

Joe said...

"Trump himself should not be taken seriously as a presidential candidate"

Yeah. We saw how that went.

(from the linked Verdict column)

Shag from Brookline said...

Original public meaning originalism would look to such in 1868 when the 14th A was ratified. Query: Wouldn't a new born be subject to the jurisdiction of the US and its states for various purposes, such as health and safety, probate, and other matters?

Unknown said...

First, thanks for such a thoughtful analysis. I learned a good deal from it. Second, a quick proviso: I am merely an interested amateur here with zero experience in constitutional law so my suggestion may be wildly implausible.

Might the justification go something like this?

The 2001 Authorization for Use of Military Force (AUMF) grants the President the discretion to use “all necessary and appropriate force” against:

“those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

President Trump signs an executive order declaring undocumented immigrants an “organization” or “collection of persons” who aided the Sept. 11 terrorist attacks. This is granted a whiff of plausibility by referencing undocumented immigrants indirectly involved in the Sept. 11 attacks in some way. Then you just lump all undocumented immigrants, no matter their country of origin, together as a group of “invaders,” to echo common rhetoric, whom the President “determines” to have aided the terrorist attacks.

The next step is for the Justice Department to defend the executive order by citing settled law excluding invading forces with whom the country is at war from being subject to the jurisdiction of the United States. The Justice Department takes the case to the Supreme Court hoping for a majority that will grant broad latitude to the President as he interprets the 2001 AUMF.

Again, I don’t know anything about the constitutional law in this case; that is why I am asking the question. Would such an approach be clearly unconstitutional? Why? Thanks in advance for any insight you can provide here.

David Ricardo said...

Ok, very interesting and informative post.


What does it mean to be a person who is not subject to the laws of the United States and the various states???

Suppose A is a 20 year old individual born in, say, Ithaca, New York of parents not legally in the U. S. A is declared a person not subject to the laws of the U. S. and New York by Trump.

1. Can A avoid all taxes?
2. Can A rob and pillage at will?
3. Can A be not subject to arrest because to be subject to arrest one must be accused of violating the law, but A cannot violate a law that he/she is not subject to.
4. Can A be accused of entering the U. S. illegally, ie, is entering the U. S. via the birth canal of an undocumented alien against the law and Constitution?
5. Can A be deported? To where?

Seriously, what is the legal status of such a person? I would ask Mr. Dorf and others to tell us.

Shag from Brookline said...

A PBS Newshour report tonight stated that many countries have birthright citizenship responding to Trump's claim that only America has such a provision.

Bad Wolf said...

Is there anything that would stop the conservatives on the SC from just "reinterpreting" the clause to mean undocumented persons arent under the jurisdiction?

Joe said...
This comment has been removed by the author.
David Ricardo said...

Isn't established that other than specific exceptions, like diplomatic personnel and their families, any person who resides in the U. S. is subject to its laws? And no one is saying undocumented persons can be citizens; the question is whether or not their offspring who are born in the U. S. are citizens.