Just in time for the midterm election, President Trump has reignited a debate over birthright citizenship. In an interview with Axios’ Jonathan Swan for the news outlets’ new HBO series, Mr. Trump said he was considering issuing an executive order ending the practice in which children of foreigners born on U.S. soil are considered citizens of the United States regardless of whether their parents are in the country legally.

Mr. Trump’s suggestion that he could upend birthright citizenship by executive fiat elicited howls of protest. Critics were quick to point out that such a move would be unconstitutional. A plain reading of the 14th Amendment to the Constitution would suggest that anyone born in the United States is a citizen by birth.

“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.” (U.S. Constitution, Amendment XIV, Sec. 1)

At the center of this question is how the wording of the 14th Amendment, and specifically the limiting phrase “and subject to the jurisdiction thereof,” applies in the context of parents who are foreign nationals. Are the children of unauthorized immigrants subject to U.S. jurisdiction and therefore eligible for birthright citizenship? Most credible legal scholars thinks so. Still, a handful of birthright citizenship opponents think enough uncertainty exists to potentially allow Mr. Trump to restrict it.

Birthright Citizenship in Historical Context

To sort all of this out, a little understanding of history is important. Since the founding of the American Republic, citizenship has been automatically conferred upon most anyone born on U.S. soil without regard to the nationality of their parents. But, the issue came to a head with the Supreme Court’s 1857 Dred Scott decision. In Dred Scott, the court ruled that despite his having been born on U.S. soil, “a negro, whose ancestors were imported into [the U.S.], and sold as slaves, whether enslaved or free, could not be an American citizen…” Anyone other than former slaves were generally considered to be U.S. citizens at birth already. It was Dred Scott, surely the court’s most shameful moment, that the 14th Amendment was intended to address. That context is important.

Birthright citizenship in the United States is rooted in the British common law tradition of jus solis, or “right of the soil.” This differs from jus sanguinis, or “right of the blood,” which confers citizenship based on the citizenship of the parents. As the 18th Century British legal commentator William Blackstone explained, the British jus solis tradition differed from the countries of continental Europe, whose citizenship rules generally followed the jus sanguines, which derives from Roman Law.

“The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.” – William Blackstone

The American tradition of birthright citizenship was not accidental. Nor, is America the only country to embrace it. Currently some 30 countries confer citizenship to those born on their territory regardless of the nationality status of the parents.

‘subject to the jurisdiction thereof’

Opponents of birthright citizenship argue that the presence of the limiting phrase “subject to the jurisdiction thereof” exempts children of parents who are subject to allegiance to some power other than the United States. Otherwise, why note this exception?

Most legal experts dispute that interpretation. John Yoo, a constitutional scholar at the American Enterprise Institute, explained in a recent blog post, that “at the time of the Framing of the Constitution and of the Amendment, there were discrete categories of persons who could be on US territory but not subject to our laws, such as diplomats and enemy soldiers occupying US territory during war. International law grants both diplomats and enemy soldiers protected status, when present on the soil of another state, from the application of that state’s laws.”

Further, Native Americans, who maintained tribal sovereignty at the time that the Amendment was drafted, would have been another group exempted from U.S. jurisdiction. It wasn’t until the 20th Century that Congress extended birthright citizenship to Native Americans after all.

The clear consensus among legal experts is that the 14th Amendment’s “and subject to the jurisdiction thereof” exception was intended for diplomats, foreign soldiers and (at the time) Native Americans who were not subject to the laws of the United States. Most everyone else, including children of foreign nationals, would fit under the 14th Amendment’s test of born in the United States and subject to its jurisdiction.

However, a handful of scholars, like John Eastman of Chapman University’s Center for Constitutional Jurisprudence, disagree. Mr. Eastman told Axios that ‘subject to the jurisdiction thereof language refers only to people with political allegiance to the U.S. such as green card holders and citizens. But, he is distinctly in the minority.

“When the 14th Amendment included the phrase ‘subject to the jurisdiction thereof,’ the framers and the public clearly understood that they were setting aside the children of foreign diplomats,” Jed Shugerman, a law professor at Fordham University said. “Other visitors to the United States were and continue to be plainly under the jurisdiction of US law. Why else can they be detained and convicted in US courts for violating US law, unlike diplomats?”

It was well-understood at the time of ratification that the 14th Amendment would apply to the children of immigrants. A growing backlash against Chinese immigrants in the latter half of the 19th Century made this an issue in the debate. As Mr. Yoo wrote in his recent blog post:

“Significantly, congressional critics of the Amendment recognized the broad sweep of the birthright citizenship language. Senator Edgar Cowan of Pennsylvania, a leading opponent, asked: ‘is the child of the Chinese immigrant in California a citizen? Is the child born of a Gypsy born in Pennsylvania a citizen?’ Senator John Conness of California responded yes, and later lost his seat due to anti-Chinese sentiment in his state.”

It is clear that the 14th Amendment was intended to apply to the children of immigrants. But, the question of illegal immigrants is still unsettled. The problem is that at the time the Amendment was drafted in 1866 (and ratified in 1868), there were no restrictions on who could enter the U.S. — the concept of “illegal immigrant” did not yet exist. So, answering the question of whether birthright citizenship applies to unauthorized immigrants requires some degree of interpretation. The key question is this: are those that entered the country illegally considered “subject to the jurisdiction of” the U.S. for the purposes of the the 14th Amendment?

Probably so. When we refer to unauthorized immigrants as illegal, we are conceding that they are indeed subject to U.S. jurisdiction. The Federal government regularly subjects unauthorized immigration to the jurisdiction of the United States when it prosecutes them for the crime of entering the country illegally. When an unauthorized immigrant commits this or any other crime in the United States, they are prosecuted under U.S. law and so, by definition, subject to its jurisdiction.

If the Congress had sought to prevent the children of foreign nationals from becoming citizens by birth, it had at hand a model for doing so. The Civil Rights Act of 1866, which passed the same year the 14th Amendment was drafted, excepted those “subject to any foreign power” and “Indians not taxed” from eligibility for birthright citizenship. Congress could have used that same language in the 14th Amendment if they wished to exclude the children of foreign nationals. Yet they did not. Their decision to instead adopt the “jurisdiction thereof” language cannot be understood as anything other than a conscious choice.

The Supreme Court Would Decide

There’s no indication that an Executive Order banning birthright citizenship is really in the works. By all appearances, talk of it is little more than pre-election pot-stirring. But, if Mr. Trump were actually to go through with it, it would almost certainly end up before the Supreme Court. And there, Mr. Trump would face an uphill climb.

Supreme Court precedent argues strongly in favor of an interpretation of the 14th Amendment that grants birthright citizenship to immigrants. As Jessica Levinson, a law professor with Loyola Law School told Vox:

“This issue was largely settled in 1898 in United States v. Wong Kim Ark. There, the Supreme Court held that ‘to hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.’”

The issue in Wong Kim Ark was whether a child born in San Fransisco to Chinese parents who were ineligible for citizenship under the Chinese Exclusion Act, was considered a citizen of the United States. The court found that the answer in this instance unequivocally yes. In Wong Kim Ark, the court further held that “the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.”

However, because there was no distinction at the time between legal and illegal immigrants at the time, Wong Kim Ark does not directly settle the question of birthright status for children of illegal immigrants. Even so, the Court’s logic in the case suggests that the 14th amendment would apply to unauthorized immigrants in similar fashion.

Because the Supreme Court has never opined explicitly on the question of birthright citizenship as it applies to illegal immigrants, there is no definitive answer to the question of the constitutionality of an executive order restricting it. if Mr. Trump were to issue such an executive order, it would be immediately challenged legally and almost certainly end up in front of the Supreme Court. For now, we can say only that given the historical and legal precedent, it is unlikely that the high court would uphold it.

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