Various media outlets are reporting that President Trump is considering an executive order modifying rules on birthright citizenship.  They are also typically reporting or heavily implying that this order would violate the Constitution.  I think the issue is more complicated than it’s being portrayed.

There are two separate issues, (a) whether the Constitution allows the U.S. to deny birthright citizenship to the U.S.-born children of illegal immigrants, and (b) if so, whether the President can do it on his own, without an act of Congress.  I’ll leave the second question to one side, as I think it’s mainly a question of administrative law.

I assume the President’s order would amount to a reinterpretation of existing statutory citizenship law; it seems clear that the President does not have independent power to vary the citizenship laws, but arguably he has power to change the administrative interpretation of them.  (As an aside, though, my guess is that if the issue ends up in court, the most likely outcome would be for the courts to find that the President lacks power to change the rules on his own and thus avoid reaching the constitutional question).

On the constitutional question, as I have written several times in the past (e.g., here, with links to earlier posts), I think the original meaning of the Fourteenth Amendment is clear in granting birthright citizenship to U.S.-born children of illegal immigrants.  Briefly:

The Amendment says that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States…”  It was a bedrock principle of nineteenth-century international law that sovereigns had complete jurisdiction (that is, authority to prescribe law) over all persons and things within their sovereign territory.

This principle was subject to several exceptions, notably (1) territorial jurisdiction did not extend to ambassadors and other diplomatic personnel, nor to foreign rulers and their property, all of whom had immunity from the laws of the territorial sovereign; (2) territorial jurisdiction could be limited by treaty, as the U.S. did to some extent in treaties with Indian tribes; and (3) territorial jurisdiction did not exist as a practical matter over hostile armies and in areas under hostile occupation.

These principles are described in Chief Justice Marshall’s opinion in The Schooner Exchange (1812) and in widely read international law treatises of the time.

U.S.-born children of illegal immigrants do not fit into any of the exceptions to territorial jurisdiction.  Nor is there any doubt that such children are  governed by U.S. law at the moment of their birth.  Thus they are “subject to the jurisdiction” of the United States at birth.  As a result, the text’s original meaning grants them U.S. citizenship at birth.

For originalists, that should be an end of the matter.  (There are some counterarguments [discussed here] principally based on comments made in Congress during the drafting process.  But on the whole the drafting debates support the above reading, as Garrett Epps has shown, and in any event the debates contain a range of views, some poorly expressed or poorly thought out; they should not overcome the text’s clear meaning.)

But that is not the end of the matter.  Modern constitutional interpretation does not fully embrace originalism.  The birthright citizenship issue is much more difficult from an evolving constitution approach (see my post here, and especially this post by Mike Rappaport).  The drafters and ratifiers of the Fourteenth Amendment did not understand the issue of widespread illegal immigration.  The country did not have restrictive immigration laws at the time.  Thus the drafters and ratifiers likely did not see themselves as deciding the issue.  It’s possible that, had the issue been before them, they would have made a different choice.  And in any event, modern circumstances are much different.  Most evolving constitution approaches typically would allow courts to consider the best fit for modern conditions in deciding an issue under these circumstances.  And depending on one’s view of the policy arguments, it’s quite possible to reach the conclusion that the nineteenth century rule, adopted by people long dead to resolve a different challenge (principally the citizenship of former slaves), should not be used to constrain the choices of the elected branches to deal with a modern problem the framers did not anticipate.

I think this is a substantial difficulty for evolving constitutionalists, which is why I expect that most of the arguments against the President’s proposal will be couched in originalist terms (even by commentators who are typically not originalists).

The issue also poses an interesting dilemma for advocates of judicial restraint, including recent guest blogger Eric Segall.  Professor Segall says in his recent post that (a) courts should not intervene against the political branches except where the originalist arguments are overwhelmingly clear, and (b) in litigated cases the originalist arguments are virtually never overwhelmingly clear.  (Specifically, he writes: “Judges should not strike down laws unless the plaintiff shows through clear and convincing evidence that the law violates either clear text (almost never happens) or uncontested history behind the text.”)  My question to him:  is this a case (assuming it gets to court) where the originalist arguments are sufficiently clear?  And, as a follow up: if the answer to that question is yes, are the changed modern circumstances sufficient to permit a reinterpretation, or at least to make the outcome sufficiently unclear that the courts should decline to intervene?

NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.


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