Breaking down the birthright citizenship debate

President Donald Trump’s push to end birthright citizenship for the children of undocumented immigrants will be getting a good deal of attention in the coming weeks. Here’s a look at the basic argument on both sides of the issue.

The debate this week started when President Trump told two TV interviewers he intended to issue an executive order about birthright citizenship. Here is the exchange from the “Axios on HBO” show:

"It was always told to me that you needed a constitutional amendment. Guess what? You don't," Trump said. When told by an interviewer that could be disputed, Trump said, "You can definitely do it with an Act of Congress. But now they're saying I can do it just with an executive order." The President then confirmed his staff was working on an order.

On Wednesday, Trump used Twitter to expand on his rationale. “So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other. It is not covered by the 14th Amendment because of the words ‘subject to the jurisdiction thereof.’ Many legal scholars agree,” he said. “Harry Reid was right in 1993, before he and the Democrats went insane and started with the Open Borders (which brings massive Crime) ‘stuff.’ Don’t forget the nasty term Anchor Babies. I will keep our Country safe. This case will be settled by the United States Supreme Court!”

While not explicitly stated in the President’s comments, it is understood that an executive order, act of Congress, a Supreme Court decision, or a constitutional amendment ending automatic citizenship at birth on American soil would pertain to undocumented aliens, not lawful permanent residents (or green-card holders).

Little is known yet about the proposed executive order, and Trump references two other ways a birthright citizenship change can happen: by a congressional act or a Supreme Court decision. And while he dismisses the need for a constitutional amendment, such an action would be the ultimate way to change birthright citizenship rules.

Putting politics aside, let’s look at the basic argument and where it would head if the administration pursues the issue.

The Basic Argument

Does the language and intent of the 14th Amendment’s Citizenship Clause, as well as the Supreme Court’s Wong Kim Ark decision, establish a right to birthright citizenship for the children of undocumented aliens? The Citizenship Clause is the first sentence of the 14th Amendment, and it reads, “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.”

There is a long history of court decisions and precedents about the Citizenship Clause and that it means most people physically born in the United States qualify as citizens. Much of this precedent is based on the Supreme Court’s Wong Kim Ark decision from 1898.

Justice Horace Gray’s majority opinion said the 14th Amendment’s Citizenship Clause fell in line with British and American common and settled law when it came to people born in the United States as having claims to citizenship, with the exceptions of children of foreign ministers, enemy combatants on American soil, and people on foreign public ships.

Gray said that Wong Kim Ark, having “a permanent domicil[e] and residence in the United States,” became ”at the time of his birth a citizen of the United States,” even though his parents were Chinese citizens. Gray also said the term “subject to the jurisdiction thereof” pertained to citizenship claims made by the children of diplomats and hostile combatants.

Gray also dismissed the relevance of an earlier case, Elk v. Wilkins. “The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country,” he said. Gray also wrote the majority opinion in 1884 in the Elk case.

Today, the side contesting conventions about birthright citizenship points to several factors. One problem, they believe, is that courts have misconstrued what the writers of the 14th Amendment intended with the phrase “subject to the jurisdiction thereof” and that the amendment’s framers understood that the children of illegal aliens, like their parents, owed their loyalty to a nation that wasn’t the United States. Thus, they weren’t under the jurisdiction of the United States.

They also believe the Wong Kim Ark decision was limited because Wong Kim Ark’s parents were legally in the United States at the time of his birth, and the Elk decision pertained more to birthright citizenship where a child is born to illegal immigrant parents. They also point to language in the 1866 Civil Rights Act as supporting the argument that children of illegal aliens weren’t under the jurisdiction of the United States.

To be sure, there are many other current and potential arguments to be made, but until an executive order is released, it is difficult to speculate at length about them.

The Outcomes

One possible route to settle the question is at Congress, which does have constitutionally established powers related to the naturalization of potential citizens. In fact, it was an act of Congress in 1924, the Indian Citizenship Act, that established all Native Americans were citizens. But in the short term, a solution in Congress could be problematic. For starters, the landscape of the House could change after Election Day if the Democrats have the House majority. And the Senate’s legislative filibuster would make it problematic for Republican leadership, if so inclined, to advance a bill to a vote.

A constitutional amendment faces a higher bar since two-thirds of the House and the Senate need to agree on the proposed amendment and its wording, to present it to the states for ratification.

President Trump has repeated his desire to pursue an executive order, if needed, to force the birthright citizenship issue, which surely would be contested in court. And as the President indicated, the case could wind up at the Supreme Court through the appeals process.

Again, it is difficult to speculate on the likely arguments until an executive order is issued or a law is passed, but the meaning of the phrase “subject to the jurisdiction thereof” probably would be front and center. The Supreme Court is into the second month of its current term. Depending on if and when the executive order comes out, the case could be decided in the current term’s regular argument schedule, which ends in late June.

However, in cases involving presidential powers, the Court can act quickly. In the landmark Youngstown Sheet & Tube Co. v. Sawyer case about presidential powers, the Supreme Court ruled on the legality of President Harry Truman’s April 2, 1952, executive order nationalizing steel mills within two months.  Most likely, the subject of the Youngstown Sheet decision would come up in arguments about an executive order about birthright citizenship.

And a core constitutional question at stake in any court consideration would be the need for a constitutional amendment, and not an act of Congress or an executive order, to settle the issue. In 2015, the Congressional Research Service considered that question when looking at the history of birthright citizenship bills in Congress.

“While a few proposals have suggested constitutional amendments, most seek to change the birthright citizenship rule by statute. It would likely fall to federal courts to determine whether such a statute could be upheld as constitutional,” the CRS said.

One area presenting a greater challenge is a statute or executive order seeking to revoke citizenship already granted to children of illegal immigrant parents. “Any statute reinterpreting the Citizenship Clause would be far more difficult to uphold if it were designed to operate retroactively to remove or revoke any living person’s U.S. citizenship,” the CRS concluded.

Scott Bomboy is the editor in chief of the National Constitution Center.