Birthright Citizenship for Non-Lawyers
This evening (from 6 to 8 pm Eastern time), I'll be giving a talk about birthright citizenship at the Tompkins County Public Library. It also airs live on the library's YouTube channel and thereafter lives as a recording on the same page. Tonight's talk is part of the library's "Rights to Know" series. I gave another talk in the series--on the Bill of Rights--earlier this fall. These talks are intended for a general audience, so regular readers of this blog might find them too basic for them. Nonetheless, as with all of my efforts to speak to non-lawyers, I try to provide sufficient background to make the subject matter comprehensible without dumbing down--to simplify without over-simplifying.
Often when I write a blog post in anticipation of giving a lecture or speaking on a panel, I offer a summary of my remarks to help me formulate and organize them. I don't need to do so here because sent the library my PowerPoint slides, but I'll do so below before turning to a brief point that I don't cover in the slides but that I expect might come up in the discussion: the normative case for birthright citizenship.
Here is the broad outline of the topics I plan to cover, along with very brief synopses:
I. Why U.S. Citizenship Matters
For many purposes--including most constitutional rights--citizenship does not matter. However, it does matter for some rights, such as voting. It also matters because it is much more difficult for the government to kick a citizen out of the country than to do so to a non-citizen. Citizens from birth essentially cannot lose their citizenship involuntarily. Naturalized citizens can be denaturalized only if they committed fraud in their citizenship application process (or in other rare circumstances). Just yesterday, we learned that the Trump administration intends to dramatically increase the number of denaturalization cases it plans to bring. That's bad news, but the good news is that such cases must be brought in federal district court with full due process rights. They don't go before immigration judges of the sort that Trump is busily ensuring toe the administration line (by firing those who follow the law and appointing lackeys in their place).
II. Citizenship Before 1868
I'll focus on the Naturalization Act of 1790, which provided in part
any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character . . . .
So yeah, in case you thought that the Supreme Court made up the idea that only white people could be citizens in the Dred Scott case, nope. Racism was baked into U.S. citizenship law from the Founding.
III. Dred Scott v. Sandford (1857)
Speaking of Dred Scott . . . .
IV. Fourteenth Amendment
I'll focus on the citizenship clause--which overrules Dred Scott but by its plain language goes beyond that--and also call some attention to the fact that whereas the Due Process and Equal Protection Clauses apply to "persons," the Privileges or Immunities Clause applies to citizens. In that regard, the much-maligned Slaughterhouse Cases--which read the Privileges or Immunities Clause to do virtually nothing--are salutary. They put civil rights and civil liberties into the provisions that apply to persons, not merely citizens.
V. Chinese Exclusion Act (1882)
Even after the Fourteenth Amendment, racism remained a key feature of U.S. immigration law. The 1882 Act halted Chinese immigration for a decade and, with no sunset date, stated: “That hereafter no State court or court of the United States shall admit Chinese to citizenship; and all laws in conflict with this act are hereby repealed.” The prohibition was not repealed until 1943.
VI. United States v. Wong Kim Ark (1898)
This is the crucial case construing the scope of the Fourteenth Amendment's citizenship clause. It construes the "subject to the jurisdiction thereof" qualifying language as encompassing three and only three exceptions: 1) “children born of alien enemies in hostile occupation;” 2) “children of diplomatic representatives of a foreign state;” and 3) “children of members of the Indian tribes, standing in a peculiar relation to the national government.”
VII. Statutory Expansion
I'll next discuss 8 U.S.C. § 1401:
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;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property . . . .
Provision (a) dates to a statute passed in 1940 and re-enacted in 1952. Provision (b) dates to the 1924 Indian Citizenship Act.
VIII. Trump Executive Order
Finally, we come to the reason why we're having this discussion: the Executive Order (EO) that Trump signed on the first day of his second term. Here's the key language:
. . . the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
The Supreme Court recently granted cert to determine the constitutionality of the EO, but this is the Court's second encounter with it. Earlier this year, in Trump v. CASA, the Court restricted the ability of federal district courts to grant universal/nationwide injunctions that benefit non-parties. As I'll explain, the Court left open class actions as a means of securing broad relief. The case now before the Court was provisionally certified as a class action by the federal district judge.
X. Trump Should Lose in SCOTUS
I'll explain the core problem with the Solicitor General’s argument. It mistakenly reads “subject to the jurisdiction thereof” to apply to the parents of a person born in the U.S., but the plain language of the Citizenship Clause makes clear that this qualifier applies to the children themselves. In any event, although the SG claims his argument is consistent with Wong Kim Ark, it pretty plainly isn't. True, Wong Kim Ark might be distinguishable on its facts, but only as to children of undocumented immigrants, not those born to people lawfully present. The SG’s argument is also anachronistic in calling Wong Kim Ark’s parents “permanent residents.” That concept did not come into U.S. law until at least the 1920s. Meanwhile, the SG fails to come to grips with the narrow 3-category scope of the exception as laid out in Wong Kim Ark. And even if the SG argued Wong Kim Ark was wrongly decided, he should still lose on statutory grounds because Congress legislated in 1940 and 1952 against the backdrop of Wong Kim Ark.
Thus, the Trump administration should lose. But will it???
* * *
That's my talk. In addition, I've been thinking about the normative case for birthright citizenship, which most other countries don't have. Even many that do have some form of jus soli citizenship include conditions like those that the Trump administration wishes to impose, such as requiring that one's parents be at least permanent residents.
Nonetheless, I want to suggest that broad birthright citizenship is consistent with other U.S. constitutional ideals rejecting privileges of lineage. These include the prohibitions on titles of nobility in both Article I, Section 9 (applicable to the federal government) and Section 10 (applicable to the states) and the prohibition of "corruption of blood" (i.e., disinheritance of the children and subsequent descendants) of those who commit treason in Article III, Section 3. While broad birthright citizenship is not essential to American ideals, it fits well with them.
-- Michael C. Dorf