Recent comments from scholars about vice-presidential candidate Kamala Harris’s citizenship status have revived a constitutional debate about birthright citizenship—or the ability of a person to automatically qualify for American citizenship based on their location of birth.
In the case of Harris, the question is relevant because the Constitution in Article II, Section 1 spells out that the Vice President, who is eligible to be President, must be a natural-born citizen.
A Newsweek op-ed piece this week from John C. Eastman—a law professor from Chapman University and senior fellow at the Claremont Institute—raised a question about the citizenship status of Harris’s parents at the time of her birth in California in 1964. Eastman argued that if Harris’s parents were “temporary residents” and not “lawful residents” in the United States at the time of her birth, it could affect her eligibility to be Vice President.
According to his understanding of the 14th Amendment, Eastman said in the op-ed that a person with temporary permission to be in the United States under a student visa would not qualify as a natural-born citizen. Harris’s parents were from India and Jamaica, and they were students in the United States when they met.
“If neither was ever naturalized, or at least not naturalized before Harris’s 16th birthday (which would have allowed her to obtain citizenship derived from their naturalization under the immigration law, at the time), then she would have had to become naturalized herself in order to be a citizen,” Eastman said.
Newsweek then published an op-ed from Eugene Volokh, a law professor from UCLA, offering a counterargument. Volokh traced the meaning of the phrase “natural-born citizen” to the original Constitution, arguing that it dated back to English common law—which “defined ‘natural-born’ based on birth (with some narrow exceptions), not on the parents’ citizenship—before the 1787 Constitutional Convention in Philadelphia and that the Framers wrote this understanding into the Constitution.
Volokh also wrote that the Supreme Court’s United States v. Wong Kim Ark decision in 1898 settled the question, arguing that the Wong Kim Ark court “reaffirm[ed] that people born in the U.S. are indeed natural-born citizens, regardless of their parents’ citizenship.” In the end, Volokh concluded that Harris was a natural-born citizen under the Constitution and, therefore, eligible to be Vice President.
Since then, the debate over the op-eds has become part of the current presidential campaign. But back in November 2018, we looked at similar general arguments, along with guidance from the Congressional Research Service. At the time, President Donald Trump said he could settle the birthright citizenship question by issuing an executive order. That has not come to pass, but to benefit our readers, here is the explanation of the arguments we published at the time.
The Basic Argument
Does the text and history of the 14th Amendment’s Citizenship Clause, as well as the Supreme Court’s Wong Kim Ark decision in 1898, establish a right to birthright citizenship for the children of immigrants? 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, concluding that it means that most people physically born in the United States qualify as citizens. Much of this precedent is based on the Wong Kim Ark decision.
Wong Kim Ark was born in San Francisco, California in 1873 to parents who were both Chinese citizens who resided in the United States at the time and did so for 20 years. At age 21, he returned to China to visit his parents; when he returned to the United States, Wong was denied entry on the ground that he was not a citizen.
The Supreme Court, in a 6-2 decision, ruled that Wong Kim Ark was a citizen under the 14th Amendment. Justice Horace Gray’s majority opinion 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 wrote that the 14th Amendment’s Citizenship Clause fell in line with British and American common 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, members of Indian tribes, and people on foreign public ships. He explained that 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 from 1884. “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 these conclusions about Wong Kim Ark and birthright citizenship points to several factors. They cite language in the 1866 Civil Rights Act as supporting the argument that some immigrants weren’t under the “jurisdiction of the United States” because of their allegiance to another country. “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States,” the law read. In 2004, Professor Eastman argued in a brief filed in Hamdi v. Rumsfeld that “any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s parents remained a citizen or subject of the parents’ home country, was not entitled to claim the birthright citizenship provided by the 1866 Act.”
Another problem, they believe, is that courts have misconstrued what the Framers of the 14th Amendment envisioned with the phrase “subject to the jurisdiction thereof.” They also believe that the Wong Kim Ark decision was limited and that the Elk decision pertained more to the birthright citizenship question. However, an updated CRS opinion from 2018 looked at both viewpoints and said the majority of scholars thought the Wong Kim Ark precedent favored citizenship at birth on American soil.
“The weight of current legal authority suggests that these executive and legislative proposals to restrict birthright citizenship would contravene the Citizenship Clause,” the CRS wrote. “At least since the Supreme Court’s decision in the 1898 case United States v. Wong Kim Ark, the prevailing view has been that all persons born in the United States are constitutionally guaranteed citizenship at birth unless their parents are foreign diplomats, members of occupying foreign forces, or members of Indian tribes.”
The CRS also cited a more-recent Supreme Court decision, Plyler v. Doe (1982), which cited Wong Kim Ark and also a 1912 legal treatise that held there was no difference “between resident aliens whose entry into the United States was lawful and resident aliens whose entry was unlawful.”
The Outcomes
One possible route to settle some of these questions could be within 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 that all Native Americans were citizens.
In 2015, the Congressional Research Service considered whether birthright citizenship could be amended by statute 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 in 2015.
An executive order looking to change the rule would likely also be challenged in court. During President Trump’s previous desire to pursue an executive order the president also indicated that the case could wind up at the Supreme Court through the appeals process and the Court would have to rule on the constitutionality of such an order.
The CRS has previously concluded that the “Supreme Court has yet to decide how the Citizenship Clause applies to the children of aliens who lack lawful permanent resident status.” It did not discuss how the debate would affect a person’s eligibility for presidential office.
Finally, a new constitutional amendment further specifying the contours of citizenship faces a higher bar since two-thirds of the House and the Senate need to agree on the proposed amendment and its wording, to then present it to the states for ratification.
Scott Bomboy is the editor in chief of the National Constitution Center.
