Is there really a legal case for ending birthright citizenship?

November 24, 2018

By Dale L. Wilcox

President Trump’s forthcoming plan to end birthright citizenship for the children of illegal aliens and foreign tourists by clarifying what it means to be “subject to the jurisdiction” of the United States at birth would reverse the years-long federal agency practice of granting citizenship to the U.S.-born babies of these groups.

Although the question of whether one’s mere presence, as opposed to some deeper connection, entitles one’s U.S.-born child to automatic citizenship has been a hot one for decades, the debate is far younger than the actual Citizenship Clause of the Fourteenth Amendment. This is itself telling, says constitutional law professor John Eastman, who has dug deeply on this issue.

In an online debate a few years back, Professor Eastman made a compelling case that giving passports to anchor children has likely only been in practice for 50 years. The Fourteenth Amendment, designed to allow U.S.-born African-Americans to obtain birthright citizenship, was passed in 1868.

Professor Eastman points to a change in the State Department’s passport-application form which, prior to 1966, required applicants born here to submit proof not only of their date and place of birth, but also “extensive additional proof of the place of the father’s residence, his place of birth, the date of his emigration to the United States, and if naturalized, the date and place of his naturalization.”

As Eastman states, “[n]one of that additional information would have been necessary if the birth on U.S. soil was alone sufficient to confer citizenship.” When the regulations were changed in 1967, those additional requirements were dropped without explanation.

Until then, it appears, our nation did not accept that the children of foreign tourists, or of those here against the will of the nation, were citizens at birth.

This helps explain why it wasn’t until as late as 1993, well over a century after the Fourteenth Amendment was passed, that a bill was introduced in Congress to limit birthright citizenship. Then-House Speaker Newt Gingrich made it part of the GOP’s platform in 1996. And only in 2009 does it appear that the State Department expressed a firm position that it was the law of the land that tourists’ U.S.-born children were entitled to automatic citizenship. Before this, the agency claimed in its Foreign Affairs Manual, the practice was merely “generally” legally accepted.

Congress has never acted on proposals to limit birthright citizenship. In fact, the only law Congress has passed setting forth the scope of birthright citizenship merely re-states the Citizenship Clause: those born in the U.S. and subject to its jurisdiction are citizens by birth.

This vague wording gives the Trump Administration a major opening.

Perhaps an unlikely source for how Trump could realign the issue with his supporters’ wishes (not to mention with the practices of every single developed country, except Canada) is the Supreme Court case U.S. v. Wong Kim Ark (1898). In that case, the Court held that a child born in the U.S. to Chinese parents legally residing here was entitled to birthright citizenship.

That the parents were legal residents was crucial for the Court, which noted that persons not permitted in the country were outside of the “allegiance and protection” of the U.S., and thus not subject to its jurisdiction.

Another group not subject to the jurisdiction of the U.S. at the time the amendment was passed were Native Americans, who, despite having a much deeper claim to birthright citizenship than children of foreign tourists or illegal aliens, were treated by the courts as owing allegiance first to their tribe, a quasi-foreign power. Only when Congress intervened in 1924 with the Indian Citizenship Act were natives able to obtain citizenship simply by birth.

The anti-borders movement is sure to challenge Trump’s executive order via litigation, a battle that would likely end up before the Supreme Court. The White House surely anticipated this move, and it is one they should welcome.

Regulations that track the rule the Supreme Court set forth in Wong Kim Ark—namely, birthright citizenship extends only to the children of legal U.S. residents—would seem to have an excellent chance of being upheld in that same Court as a reasonable interpretation of Congress’s vaguely-worded statute.

With a newly-minted originalist on the bench in Justice Brett Kavanaugh, the Court is likely to fix a misreading of the law that has fundamentally changed not just immigration policy but the nation itself.

Dale L. Wilcox is executive director and general counsel at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.

Also published at: Dale L. Wilcox, Is there really a legal case for ending birthright citizenship?, The Washington Examiner, November 24, 2018.