Donald Trump, in an interview with Axios, said that he plans to sign an executive order stripping many Americans of their citizenship. Though it is unclear how far Trump wants to go, or whether he would attempt to retroactively strip many existing citizens of their citizenship, Trump apparently wants to target the children of undocumented immigrants.
“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits,” Trump falsely claimed. “It’s ridiculous. It’s ridiculous. And it has to end.”
Trump’s plan is unconstitutional. It’s not even arguably constitutional. It is so obviously unconstitutional that it was rejected by a notoriously racist Supreme Court more than a century ago. The few scholars who think that Trump can actually do this are considered radicals even within conservative legal circles.
If the Roberts Court ultimately upholds such an order, it will reveal that its Republican majority is so captured by partisanship that it cannot even be trusted to read the clear words of the Constitution.
“Subject to the jurisdiction thereof”
The Fourteenth Amendment was the price a victorious Union extracted from rebellious states that waged a treasonous war to defend slavery. In order to be admitted back into the Union, ex-Confederate states were required to ratify this amendment. Among other things, the Fourteenth Amendment explicitly stated that nearly anyone born in the United States would automatically become a citizen.
One of the primary purposes of this amendment was to wipe away the Supreme Court’s decision in Dred Scott v. Sandford, the infamous pro-slavery decision which held that black men and woman are “regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”
“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.”
Yet the Fourteenth Amendment also speaks in expansive terms about who qualifies for birthright citizenship — much more expansively than if the amendment were intended simply to grant citizenship to former slaves. “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.”
The amendment, in other words, only places two limitations on who automatically qualifies as a citizen. A person must either be born or naturalized in the United States, and they must be “subject to the jurisdiction thereof.”
The word “jurisdiction” is a legal term which refers to lawful power over a person. A federal court has “jurisdiction” over a particular individual if it has the power to issue binding rulings against that person. Likewise, someone is “subject to the jurisdiction” of the United States if they are bound by its laws.
Thus, if the children of undocumented immigrants were beyond the reach of the Fourteenth Amendment’s citizenship provision, that would mean that they were immune to American law altogether. It would be unlawful for the federal government to arrest, detain, or deport them.
The Supreme Court explained more than a century ago, in its 1898 decision in United States v. Wong Kim Ark, why the Fourteenth Amendment contains a limited exemption for people not “subject to the jurisdiction” of the United States.
The real object of the fourteenth amendment of the constitution, in qualifying the words ‘all persons born in the United States’ by the addition ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,- children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,-both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
When the Fourteenth Amendment was ratified, in other words, there were a few limited classes of children who were born with the United States’ territory but not subject to its laws. They included some Native Americans whose tribes existed as separate sovereign nations within the United States, but also children of foreign diplomats (who enjoy diplomatic immunity from the law of the nation they are visiting), and any children born to a hostile invading army.
All other children, by the Fourteenth Amendment’s explicit terms, are citizens if they are born in the United States.
More racist than the racists
It’s unclear why Trump believes that the text of the Fourteenth Amendment does not apply to him. Last July, however, former Trump administration official Michael Anton published a Washington Post op-ed arguing against birthright citizenship. (Notably, after this op-ed was published, the Post added a lengthy editor’s note to it, revealing that Anton doctored a quote in order to bolster his argument.)
Anton’s argument is difficult to follow, and key parts of it rest on mere assertions that propositions that Anton wishes were true are “clearly” true. Anton writes, for example, that “the children of immigrants who came here illegally clearly don’t” qualify as citizens, without citing any provision of the Constitution or other historic text that supports a distinction between the children of documented and undocumented immigrants.
Nevertheless, the crux of Anton’s argument appears to be that someone is not “subject to the jurisdiction” of the United States if they do not owe “allegiance” to this nation — and therefore are unable to bestow citizenship upon their children.
This argument is foreclosed by Wong Kim Ark. The United States citizen at the heart of that case was a laborer born in the United States to “persons of Chinese descent, and subjects of the emperor of China.” Yet the Supreme Court held him to be a citizen, regardless of the fact that he was born to parents who owed no allegiance to the United States.
It’s worth noting once again that Wong Kim Ark was decided in 1898 — two years after the Court’s notorious segregation decision in Plessy v. Ferguson. Notably, five of the justices who endorsed segregation in Plessy also upheld birthright citizenship in Wong Kim Ark.
The case for birthright citizenship, in other words, is so clear cut that even many of the most notorious racists in the Supreme Court’s history believed that the children of foreign nationals born in the United States are American citizens.
Trump is literally taking a position to the right of many of the justices who gave us separate-but-equal.
A lunatic among lunatics
Judge James Ho is arguably the single most conservative individual Trump appointed to the federal bench. In his short time on the United States Court of Appeals for the Fifth Circuit, Ho’s combined Neil Gorsuch’s contempt for precedent with the tactfulness typically associated with the Breitbart News Network.
In his very first judicial opinion, Ho claimed that all campaign contribution limits are unconstitutional. He’s labeled the Affordable Care Act “the inevitable result of a government that would be unrecognizable to our Founders” — in an opinion which had nothing whatsoever to do with Obamacare — and lamented what he calls the “moral tragedy of abortion.”
All of which is a long way of saying that Ho isn’t simply a conservative judge. He is in the lunatic fringe of the lunatic fringe of lawyers Trump deems to be worthy of a federal judicial appointment.
Yet even James Ho thinks that Trump’s attack on birthright citizenship is misguided.
“The plain meaning of” the Fourteenth Amendment “is clear,” Ho wrote in a 2011 op-ed. “A foreign national living in the United States is ‘subject to the jurisdiction thereof’ because he is legally required to obey U.S. law.”
So the one piece of good news that can come from Trump’s proposal to strip Americans of their citizenship is that it is unlikely to prevail in federal court.
In President Obama’s final term in office, the Supreme Court’s Republicans balked at Obama’s effort to permit some undocumented immigrants to live and work in the United States openly. The Obama administration’s effort had a strong grounding in federal immigration law. And it didn’t purport to change anyone’s citizenship status. Nevertheless, the Court’s Republicans believed that the Executive Branch should not have this kind of power over immigration policy.
So it would be simply extraordinary for these Republicans to turn around and uphold an executive order stripping Americans of their citizenship — and to do so in violation of the Constitution’s explicit text and of more than a century of Supreme Court precedent. Such an act would not simply expose the Supreme Court as a purely partisan body, it would place the Roberts Court in the same company as the justices who handed down Dred Scott.