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.