Last week, President Donald Trump declared his intent to use an executive order to limit the right of birthright citizenship.
The principle that anyone born on American soil is a citizen of the United States is based in the Fourteenth Amendment to the Constitution, which was ratified in 1868. The Amendment opens with the declaration, “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.” This provision was a direct repudiation of the Supreme Court’s 1857 Dred Scott decision, which held that no black, free or slave, could claim U.S. citizenship. The prevailing opinion of legal scholars and historians is that the text means pretty much what it says: if you’re born in the United States, you’re a citizen of the United States.
To the extent that there is any ambiguity in the text, it resides in the qualification of birthright citizenship to those who are “subject to the jurisdiction” of the United States. The drafting history shows that the framers included this language so as to exclude the children of foreign diplomats and soldiers and Native Americans from its coverage.
President Trump’s claim that he would use an executive order to exclude the children of undocumented immigrants who are born in the United States from being recognized as U.S. citizens raises two legal questions. First, does the President have the authority to redefine the long established understanding of the birthright citizenship clause by executive order? Second, assuming he does (or assuming that Congress were to pass a law along the lines of what Trump proposed), would an effort to limit birthright citizenship in this way violate the Fourteenth Amendment?
As to the meaning of the Fourteenth Amendment’s birthrights citizenship clause, the Supreme Court has evaluated the clause, but never ruled squarely on the issue at the heart of the current debate. In 1898, in the case of United States v. Wong Kim Ark, the Court held a child born in San Francisco to Chinese parents was a citizen, even though the Chinese Exclusion Act made the parents ineligible for citizenship. The court said:
To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.
Since Wong Kim Ark’s parents were legally in the country, the Court holding does not necessarily apply to situations—such as those Trump is talking about—in which the parents’ presence in the country is itself a violation of law.
Almost a century later, in the 1982 case Plyler v. Doe, the Supreme Court ruled that the Fourteenth Amendment’s Equal Protection Clause prohibited a state from excluding undocumented children from access to free public education. Although the Court had no reason to discuss the birthright citizenship clause, it did interpret a related phrase in the Equal Protection Clause to apply to undocumented immigrants. In subsequent decisions the Court has assumed that children born to undocumented parents are citizens of the United States, but is has never directly held that this was required by the Constitution.
Most legal scholars believe the Fourteenth Amendment requires birthright citizenship and that terminating the practice would require a constitutional amendment. James Ho, a conservative legal scholar appointed by President Trump to a federal appeals court, has written as much; so has John Yoo, a University of California, Berkeley, law professor who served in George W. Bush’s administration.
Some legal scholars have dissented from this consensus, however, including Peter Schuck, an emeritus professor at Yale Law School. In 2010, Schuck wrote that Congress could withhold birthright citizenship from children who are in the country “as a result of an illegal act” without passing a constitutional amendment.
The impact of terminating birthright citizenship could be massive. In 2014, roughly 275,000 babies were born to unauthorized-immigrant parents, or about 7% of the 4 million births in the United States that year.
This post was written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt .