The editors of the New York Times, the Washington Post and the Wall Street Journal are all convinced that President Trump has put his foot in it by declaiming that he’ll limit birthright citizenship by executive order one week before the midterm elections. Here’s the WSJ’s take:
Mr. Trump has the political high ground as long as he is trying to stop lawlessness or deter migrant caravans mobilized by left-wing groups in Central America. Even deploying soldiers to the border in nonmilitary roles can be justified to assist immigration agents overwhelmed by asylum seekers. The U.S. has to send a signal that no one can bum-rush the border—not least to deter migrants from making a trip that will end in disappointment, or worse.
By contrast, the birth citizenship gambit puts Mr. Trump on the wrong side of immigration law and politics. Did Michael Cohen give him this legal advice?
The right to citizenship for anyone born on U.S. soil is derived from the Fourteenth Amendment adopted in 1868: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.†This is the common law doctrine of jus soli, or right of the soil.
Opponents of birth citizenship try to obscure this plain meaning by interpreting “subject to the jurisdiction†as applying only to those who owe allegiance to America. Because alien parents owe allegiance to a different sovereign, the argument goes, their children have no right to citizenship.
or is he? Isn’t the meaning of the phrase “subject to the jurisdiction” a candidate for interpretation by the courts? Every case I have seen cited to date only pertains to the children of legal immigrants. In what sense is someone in the United States illegally, who doesn’t obey other U. S. laws, who doesn’t pay taxes other than unescapable use taxes, and who votes in the elections of other countries subject to the jurisdiction of the United States? I don’t know the answer to it but it seems to me to be a legal and political question.
Additionally, until Mr. Marshall arrogated to the courts the sole right to interpret the laws, difficult as it may be to credit, that right belonged equally to the courts, the other branches of government, and the citizenry. That was part of the common law.
As to the politics, the political streets are littered with the figurative corpses of people who’ve underestimated Donald Trump’s political acumen. I don’t know whether the American-born children of illegal aliens should have birthright citizenship. I do not know whether the 14th Amendment covers their case. I don’t know what the courts would decide on the subject. And I do not know whether stirring that particular pot is good politics or bad.
We will probably find out the answers to at least one of those questions very soon.
Ilya Somin makes a convincing case that Trump lacks this authority, even if “jurisdiction†is differently defined:
https://reason.com/volokh/2018/10/30/birthright-citizenship-and-the-constitut
In the post he doesn’t address my point—that available precedent addresses the status of the children of legal immigrants not those of illegal immigrants. Until the court rules specifically on that issues, there is an ambiguity and as long as there’s an ambiguity, the president is completely within his authority to direct that the executive branch consider the children of illegal aliens not citizens.
Note that I’m not taking a position on the policy or political prudence of that course of action. I think that what should happen is that Congress should enact a law that specifically states that all children born within the U. S. be considered U. S. citizens, regardless of parentage and request the president to administer the law accordingly.
The point is that the Executive cannot unilaterally change citizenship criteria via executive order regardless of one’s view about the issue of jurisdiction, which itself is a very thin reed.
If someone wants to challenge the long-standing interpretation of what “under the jurisdiction of” means, then let them file their cases and let the process work. The President cannot and should not try to use that to decide the issue by Executive fiat, any more than the President can do so in any other constitutional matter.
@Andy, Somin might have a point, but not for the reason he gives. The federal statute does not give birthright citizenship to anyone, it just quotes the 14th Amendment. If the 14th Amendment contemplates birthright citizenship, so does the statute. If it does not do so, nor does the statute.
The argument he is endorsing, that when Congress used language taken from the 14th Amendment to mean something other than the meaning of the 14th Amendment is one of the least persuasive things I’ve read in a long time.
The simpler argument to get where this argument goes is that (a) the 14th Amendment does not abrogate Congressional authority to establish naturalization laws. The executive order is not a Congressional Act and thus is insufficient to constitute a naturalization law. Presumably the problem with that is that our immigration laws appear to give a lot of discretionary power to the POTUS.
PD,
My point is rather narrow – the President is claiming he can deny citizenship by Executive order, essentially using a criterion he’s making up. I think that is completely different from immigration policy and that the President has no authority to unilaterally make such an order.
Jonathon Turley, no legal lightweight or wild eyed advocate, made the point last night that it is not at all clear that only a portion of the language of the 14th pertains, and that Trump is actually in no way making things up. In fact he felt it ripe for formal interpretation. And we all know what that means. Further, he explicitly noted the legal/non-legal distinction Dave is commenting on. Remember, the origins of the amendment dealt with freed slaves (and, I guess, foreign diplomat types) and not Hondurans seeking employment, especially illegal ones.
Drew,
The fact that there are different interpretations does not give the Executive the authority to issue a determinative EO and set government policy by fiat, especially for something as fundamental as determining citizenship. Consider how such a standard could be used in other areas – there are a lot of things in our law that are open to interpretation.
This is the part I focused on in Somin’s piece which I agree with:
“Even if the Fourteenth Amendment does not guarantee birthright citizenship to children of undocumented immigrants or temporary visa holders, it does not follow that the president can deny it to them by executive order. The Naturalization Clause of Article I of the Constitution gives Congress, not the president, the power to “establish an uniform Rule of Naturalization.” ”
To me, this would be like the President issuing an EO that immigrants can’t get abortions, or have limited due process rights or that the census now only counts citizens or any number of other things.
In short, I see this in terms of a clear and blatant overreach of Executive power and it’s one that should be strongly opposed for that reason alone.
I don’t think the president can deny citizenship by executive order but I do think he can direct the executive branch to act under his interpretation of existing law which may take into account perceived ambiguities in the law as written and in the light of subsequent case law.
There is clearly a non-trivial ambiguity at present. Otherwise more analysts would be quoting case law that was less than a century old and more on point. That’s why my recommendation is for Congress to act to remove the ambiguity.
Sure it does. He’s Chief Executive. He’s only bound by the law that exists and not the law as (for example) open borders absolutists or anybody else would like it to exist. The problem here is Congress’s.
“I don’t think the president can deny citizenship by executive order but I do think he can direct the executive branch to act under his interpretation of existing law which may take into account perceived ambiguities in the law as written and in the light of subsequent case law.”
That, to me, is a distinction without a difference. I grant that the President can TRY this. A President can sign any EO he wishes, but I don’t think it would stand a snowball’s chance in court.
Secondly, the lack of case law works both ways. The present interpretation of citizenship has been very long-standing and largely unchallenged in the courts (as far as I’m aware). If Congress intended something different from the present interpretation, they’ve had over a century to correct the error. That they haven’t suggests the ambiguity perhaps isn’t as great as proponents for changing the status quo would like. And the lack of case law also suggests that proponents for the reinterpretation of citizenship either haven’t bothered to bring cases challenging this interpretation, or their cases lacked merit to begin with.
So, those who want to overturn this long-standing interpretation need to get Congress to change existing law or need to get the courts to definitively adjudicate the meaning of jursidiction in the 14th amendment. Turning to executive power is the John Yoo standard – the view that the Executive has carte blanche to independently and unilaterally determine the nature of extent of legal ambiguities and then decisively rule on them. I don’t share that view.
Again, a President can try that approach, but in my view it should be actively and vigorously opposed.
Those who want to end birthright citizenship (or change any other long-standing policy or precedent) should go to Congress or try the courts, not force it via EO.
Getting the Congress not to act doesn’t sound like an arduous task to me. Getting a case through the courts could take years.
Andy
Professor Turley would beg to differ.
“Getting a case through the courts could take years.”
So what? There isn’t a birthright citizenship crisis that suddenly appear necessitating the need for speedy executive action. Regardless, if Trump tries this it will get challenged and the courts will have their say on their own timeline.
“Professor Turley would beg to differ.”
About what exactly?
Reading his remarks, all he says that it’s an open question of interpretation that could be changed by Congress or the courts because it’s never been defined. Again, that’s fine, and he, appropriately in my view, says that Congress could make it clearer or the SCOTUS could determine the meaning.
He doesn’t suggest (from what I have read) that the appropriate response to what has been, until relatively recently, an academic discussion, is for the Executive branch to unilaterally try to decide it, which is my objection.
In other words, if the Congress and/or SCOTUS change birthright citizenship, that is legitimate from a Constitutional and process standpoint (IMO). A President trying to change it via EO is not.
And what’s ironic is the people who are all for this EO sang a completely different tune when it came to Obama’s EO on the dreamers.
Here’s what Turley said about Obama’s DACA order:
“In ordering this blanket exception, President Obama was nullifying part of a law that he simply disagreed with.….If a president can claim sweeping discretion to suspend key federal laws, the entire legislative process becomes little more than a pretense…The circumvention of the legislative process not only undermines the authority of this branch but destabilizes the tripartite system as a whole.”
Same applies here in my view.
Basically, there are three buckets this issue can fall in:
1) The Constitution requires birthright citizenship, so any act by Congress or the POTUS opposed to that right is void.
2) Congress requires birthright citizenship, so any act of the POTUS opposed to that right is void. Under the doctrine of Constitutional avoidance, there is no need to decide the Constitutional issue. I believe this is what Somin is arguing when he writes that a “federal statute, 8 U.S.C. Section 1401, extends birthright citizenship.”
3) Neither the Constitution, nor any Congressional statute, forbids the President’s actions. Of course, the Constitution or statute can be amended, and one President’s policy is not binding on the next. This option would probably restate the considerable deference courts give to the President (or more specifically INS) in immigration matters.
Before the ink is dry on President Trump’s signature, a lawsuit will be brought, and a restraining order (or whatever it is called) will be issued. Until it is settled, nothing will change.
If it is upheld, do birthright citizens instantly become illegal aliens?
What he is saying, Andy, is that it’s not settled law. Again, the implication that this could go to the SC is obvious
That’s different from nullifying settled law through an EO.
Depends. If they can prove that their parents were here legally, they’re citizens. That’s what the precedents I’ve seen cited say so that’s the law.
IMO the courts will be very reluctant to declare 5-10 million people who thought they were citizens illegal.
Let me repeat. I’m not arguing for the morality, policy correctness, or political wisdom of an executive order declaring the children born in the U. S. of illegal immigrants non-citizens. If we had a civil code system Andy would be right but we don’t. We have a common law system and the common law depends on the text of the law, precedent, sometimes, the intent of those enacting the law, and, as we have learned, the personal preferences of judges. Everything I’ve read so far says the 14th Amendment does not expressly make the children born in the U. S. of illegal immigrant parents U. S. citizens, the precedent doesn’t expressly say that, and there’s no record that those who enacted the law intended it. Those who are arguing otherwise are acting as though we had a system different than the one we actually have and that may well be the view that prevails. The courts are like that.
The question is properly a province of politics, not the judiciary. I predict that the current court would decline to accept jurisdiction. As to Congress acting, you need 2/3 of each house to override a veto.
I believe that this is a non-issue, an election ploy. However, if Trump is serious he occupies the high ground.
After reading some more about the merits of this argument, as opposed to the means to achieve it (via an EO), I don’t think there is much on that front either.
The framers of the 14th amendment were pretty clear in their intentions at the time, the debate in the Congress on it was illuminating as to its meaning, and the opinion in the Wong Kim Ark case seems pretty definitive as well. If you’re from the originalist camp, I think it would be difficult to argue that the original intent of the 14th amendment was anything other than the standard that’s existed for the last 150+ years.
Maybe that and one major SCOTUS case is not enough to be “settled law” (a misnomer, IMO) but I think those seeking to change this through anything other than a Constitutional amendment are unlikely to succeed on the merits.
Here’s a rundown from 1995 from Pres. Clinton’s OLC regarding the various proposals back then to end birthright citizenship including a bill from (irony alert) Sen. Harry Reid:
https://www.justice.gov/file/20136/download
And from the opinion in the Ark case itself:
https://www.law.cornell.edu/supremecourt/text/169/649#writing-USSC_CR_0169_0649_ZO
The opinion is long and traces birthright citizenship from English and other European common law up until that time.
However, there are practical considerations as well.
The most obvious is the problem of defining a clear standard for when individuals are and are not “under the jurisdiction” of the US that can be evenly applied in every situation.
For example, what about a baby born in a US immigration facility or a US prison – what is the argument that a child born in those circumstances is not under the jurisdiction of the US?
Unless one can somehow come up with a blanket justification that children of illegal immigrants are inherently not under the jurisdiction of the US, even those in US custody, then where do you draw the line?
Anything less than that will mean the standard can and will be gamed. For example, what prevents a woman in labor showing up to some government facility to ensure the baby is born under the jurisdiction of the US?
You’d need to account for the circumstance of every birth and develop a standard for which birth situations are under US jurisdiction and which situation are not. Personally, I can’t see the Congress or the SCOTUS trying to split those hairs.
Furthermore, there is scope to consider. I think it would be tough to argue that someone is not under the jurisdiction of the US only for determining citizenship at birth, but IS considered under the jurisdiction of the US for everything else at all other times, which is what proponents seem to be arguing.
In sum, once you dig a little and consider how the “under the jurisdiction” line of reasoning would actually work in practice, it doesn’t make much sense. But maybe I don’t have a good enough imagination, so if someone can explain how this would work in practice while not violating any other laws or parts of the Constitution, I’m all ears.
Comment in moderation – too many links I guess.