President Trump’s Birthright Citizenship Executive Order: Too Much Detail, Too Little Authority -- Guest Post by Scott Titshaw and Stephen Yale-Loehr

There are three categories of birthright citizenship recognized around the world. Two of these, citizenship based on place of birth and citizenship inherited from parents at birth, have roots dating back hundreds of years. The third category, hybrid citizenship rules, evolved in the twentieth century. 

The United States recognizes inherited citizenship for children born abroad to U.S. citizens, but it has always relied primarily on birthplace citizenship. For over a century, the Fourteenth Amendment of the U.S. Constitution has, with limited exceptions, granted citizenship to everyone born in the United States. Congress assumed this simple birthright citizenship rule when it enacted and later amended the Immigration and Nationality Act (INA). That assumption now permeates our immigration and citizenship statutes.

This reliance on birthplace citizenship is now being questioned. On the first day of his second term, President Trump issued an Executive Order that would overturn this simple rule and replace it with a complex hybrid citizenship scheme. On April 1, the Supreme Court will hear arguments in Trump v. Barbara about whether the Executive Order is legal. 

Because the Executive Order is such a bold departure from a national consensus dating back to the nineteenth century, courts and scholars have focused on the text and original meaning of the Citizenship Clause and the INA provision codifying it. But the Executive Order itself would face overwhelming problems even if the Citizenship Clause and the INA were less clear.

Too Much Complexity

Our traditional birthplace citizenship rule focuses on a simple answer to a single question: Was a person born in the United States? If the answer is yes, the child is a citizen. If the answer is no, the child is not a citizen. 

The Executive Order eliminates this simple rule to invent a new hybrid citizenship regime, focusing on the parents of “persons born in the United States” and raising a slew of additional questions: What citizenship or immigration status must parents have for their children to qualify? Who counts as a parent in this context? Does it matter if children were born in or out of wedlock? Is there a distinction between the required status of mothers and fathers? What status(es) do U.S.-born noncitizens have?

The Executive Order recognizes the “privilege” of citizenship for U.S.-born children only if their father is a citizen or has lawful permanent residence (a “green card”) or their mother is not “unlawfully present” or in a “presence” that is “lawful but temporary.” The Department of Homeland Security and State Department have tried to explain what this language means, but the technical line-drawing is all based on modern immigration law classifications beyond anything the framers of the Fourteenth Amendment contemplated in 1868. 

Among other things, the Executive Order would disqualify children whose parents are in lawful immigration status as students, investors, or temporary workers. For instance, Indian engineers or scientists with approved green card petitions may work legally in the United States for many years while waiting in the line of massive green card backlogs for applicants born in India. Yet their U.S.-born children would not be citizens.

Complicating things further, the Executive Order and agency implementation plans discriminate in the status they require for fathers as opposed to mothers. The children of noncitizen mothers who are asylees or refugees, for example, would be citizens, but the children of asylee or refugee fathers would not. This raises equal protection problems.

Because of its focus on the parents of persons born in the United States, the Executive Order was compelled to decide who counts as a parent. It could have used state definitions of family relationships. Or it might have adopted the federal definitions used for children born abroad who inherit their parents’ U.S. citizenship. But it ignored both. 

Instead, the Executive Order reinvents family relationships. It ignores whether the child was born in or out of wedlock and defines the child’s “mother” as “the immediate female biological progenitor” and the “father” as “the immediate male biological progenitor.” Only genetic parents appear to count. These new definitions ignore age-old marital presumptions of parentage that are still generally recognized under state family law. They also ignore parents who use modern reproductive techniques involving donated sperm or eggs. Even if their non-genetic but legal parents are citizens, U.S.-born children may not be. Even if both parents are U.S. citizens, if neither is the child’s genetic parent, the child born on American soil would not be an American. Perversely, the same child born to the same parents abroad could qualify for citizenship under existing law.

Too Little Authority

Taken as a whole, the Executive Order creates a complex modern hybrid citizenship rule similar to those adopted in the United Kingdom, Australia, and Ireland since the 1980s. 

There are valid arguments for reconsidering U.S. birthright citizenship rules like lawmakers and voters did in the United Kingdom, Australia, and Ireland. But that national conversation should not be short-circuited by an Executive Order. 

Our Constitution delegated enumerated powers to Congress, the President, and the courts. Citizenship is so important that the Constitution defines it in the Fourteenth Amendment. Article I of the Constitution delegates to Congress the power to create other citizenship rules. No one has delegated such power to the President.

The United Kingdom and Australia followed the legal requirements for changing their citizenship rules through proper legislation. Because the Irish Constitution, like ours, mandated birthplace citizenship, the Irish held a referendum and amended it.

The Irish did it the right way. If Americans want to change our birthright citizenship law, we must amend our Constitution as well.

--- Scott Titshaw is a professor of law at Mercer University School of Law. Stephen Yale-Loehr is a retired professor of immigration law practice at Cornell Law School.