An Analysis Into the Debate Revolving Birthright Citizenship and Illegal Immigration

By Jordan Leonard

In fall 2018 President Trump made waves in the political and Constitutional establishment by alluding to an executive order which would end the idea of birthright citizenship as it is currently understood. The President’s idea is certainly controversial[1] (as with most things President Trump has done). The first argument made by those critical to this idea, is that changing birthright citizenship is forbidden by the Fourteenth Amendment.[2] Section 1 of the Fourteenth Amendment clearly reads “[a]ll 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.”[3]

Critics of the President’s proposal have focused on the wording of the Fourteenth Amendment to criticize the plan. For example, CNN opined “[s]uch a step would be regarded as an affront to the US Constitution, which was amended 150 years ago to include the words: ‘[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.’” (emphasis added)[4] The ACLU argued “[t]he President cannot erase the Constitution with an executive order, and the 14th Amendment’s citizenship guarantee is clear.”[5]

President Trump was also criticized by members of his own party. For example, Senator Chuck Grassley was quoted as saying “[i]t seems to me born in the United States is pretty simple, subject to the jurisdiction there of might be a little more debatable by lawyers and I am not a lawyer but it seems to me it would take a constitutional amendment to change that as opposed to an executive order.”[6] Paul Ryan, the former Speaker of the House, also criticized the President’s plan as violating the Fourteenth Amendment—“I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process. . .”[7]

Although the President’s plan to end birthright citizenship has been largely criticized on the grounds of the Fourteenth Amendment (this essay does not analyze the President’s plan to do so by executive order), Republican Senator Lindsey Graham of South Carolina vowed to introduce legislation that would be similar to the President’s proposed executive order.[8] Further, the Vice President weighed in on the matter by arguing that the President’s proposal to end birthright citizenship to children of illegal immigrants may not run afoul of the Fourteenth Amendment[9] (however an executive order may  run still afoul of the Constitution). Vice President Pence argued “‘The Supreme Court of the United States has never ruled on whether or not the language of the 14th Amendment subject to the jurisdiction thereof applies specifically to people who are in the country illegally.’” Senator Chuck Grassley later made a formal statement echoing the Vice President’s argument :

Birthright citizenship for the children of permanent resident immigrants under the Fourteenth Amendment is settled law, as decided by the U.S. Supreme Court in United States v. Wong Kim Ark. There is a debate among legal scholars about whether that right extends to the children of illegal immigrants. . .[11]

Vice President Pence and Senator Grassley’s arguments therefore define the parameters of this discussion—does Section 1 of the Fourteenth Amendment require birthright citizenship to children of illegal immigrants born in the United States?

Senator Grassley rightly points to the Citizenship Clause of Section 1 of the Fourteenth Amendment, and to United States v. Wong Kim Ark, 169 U.S. 649 (1898), as the most relevant case on the matter. But what exactly was the Citizenship Clause intended to accomplish and what exactly did the Wong Kim Ark Court decide?

The Fourteenth Amendment was the second of the three post-Civil War amendments and was ratified in 1868.[12] The Thirteenth Amendment, ratified in 1865,[13] eliminated slavery in the United States[14]; the Fourteenth Amendment granted civil rights to former slaves (and greatly expanded rights of all Americans against states);[15] and the Fifteenth Amendment, ratified in 1870,[16] granted political rights to former (male) slaves.[17]

The Citizenship Clause of the Fourteenth Amendment reads “[a]ll 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.” The Supreme Court in in United States v. Wong Kim Ark explained the Citizenship Clause’s

main purpose doubtless was, as has been often recognized by [the United States Supreme Court], to establish the citizenship of free [African Americans], which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, 1857 19 How. 393; and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States, are citizens of the United States.[18]

Prior to the adoption of the Fourteenth Amendment’s Citizenship Clause, however, “national citizenship [was] derivative of state citizenship, except in cases involving the naturalization of immigrants and the regulation of federal territories.”[19] The Fourteenth Amendment changed this dynamic. Instead of being a citizen of a state first, the Citizenship Clause “made clear that all Americans were in fact citizens of the nation first and foremost, with a status and set of birthrights explicitly affirmed in a national Constitution.”[20] Therefore, the Citizenship Clause removed the authority of the states to revoke the citizenship of former slaves.

Read this way, the Citizenship Clause could plausibly be understood much like every other provision of the Fourteenth Amendment—to limit the power and authority of the states.[22] In turn, Section 5 of the Fourteenth Amendment suggests that Congress would be responsible for carrying out the Citizenship Clause.[23] But, if the Fourteenth Amendment, as a whole, was intended to expand the power of the Federal Government,[24] it would seem that a reading of the Citizenship Clause which requires the citizenship at birth for the children of illegal immigrants would in fact limit Congress’ powers under Article 1 Section 8 Clause 4—“[t]o establish a uniform rule of naturalization.”[25]

To the best of my knowledge, the Fourteenth Amendment has not largely been argued to place limits on Congress’ Article I powers. Even in extreme cases, such as segregated schools, the Supreme Court could not rely on the Fourteenth Amendment. Instead, in Bolling v. Sharpe, 347 U.S. 497 (1954), a companion case to Brown v. Board of Education, 347 U.S.483 (1954),[26] the Supreme Court held the Equal Protection Clause of the Fourteenth Amendment (also contained in Section 1 of the Fourteenth Amendment) did not limit the powers of the federal government.[27] Therefore, the Supreme Court relied on the Due Process Clause of the Fifth Amendment to eliminate segregation in the District of Columbia’s public schools.[28] If the Citizenship Clause were read to require birthright citizenship to the children of illegal immigrants, it would also create a Constitutional loophole that would limit Congress’ Article 1 Section 8 Clause 4 powers.

A counter argument, however, would be that Congress did intend to limit itself through the Citizenship Clause. The Supreme Court in Wong Kim Ark reasoned that after enshrining birthright citizenship in The Civil Rights Act of 1866,[29] Congress intended to fortify birthright citizenship in amendment as opposed to the standard legislative process.[30] Nonetheless, any argument that would potentially change Congress’ Article I powers should not be taken lightly.

Next, as the Vice President correctly pointed out, and Senator Grassley echoed, the Wong Kim Ark decision did not directly address the question of whether the Citizenship Clause mandates birthright citizenship for children of illegal immigrants born in the United States.[31] Instead, the question presented in Wong Kim Ark was very specific:

whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, ‘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.’[32]

The Supreme Court answered this question affirmatively.[33] Critics of the President’s proposal, further, argue that the Wong Kim Ark decision accurately captures the whole of the legislative intent behind the Fourteenth Amendment—to “extend birthright citizenship to non-U.S. nationals.””

However, the Supreme Court in Wong Kim Ark did not explicitly go this far. As indicated above, the question presented was very narrow,[35] and the specific issue never arose because Wong Kim Ark was not born in the United States to illegal immigrants. [36]

However, the Wong Kim Ark Court does indicate that there are only two primary exceptions (outside of the exception for children born to members of Indian Tribes[37]) to the general rule that persons born in the United States become citizens at birth. These exceptions are: the children of foreign diplomats, and children of “alien enemies in hostile occupation.”[38] However, others have argued children of illegal immigrants should not obtain birthright citizenship, and point to the earlier case of Elk v. Wilkins, 112 U.S. 94 (1884).[39] In Elk, the question presented was

whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States, and of his afterwards voluntarily separating himself from his tribe and taking up his residency among white citizens, a citizen of the United States, within the meaning of the first section of the Fourteenth Amendment of the Constitution.[40]

The Supreme Court held that he was not a United States citizen under the Citizenship Clause.[41] The court reasoned “an Indian cannot make himself a citizen of the United States without the consent and cooperation of the government.”[42] Therefore, some commentators have argued birthright citizenship should not extend to the children of illegal immigrants because the United States government has not consented to their presence.[43]

However, the obvious counter argument to the requirement of “consent” is, as Professor Kamp points out, that “consent” does not appear in the Citizenship Clause.[44] Nonetheless, it is not much of a leap to question why a Native American who was born in the territorial United States could not make himself a citizen without consent of the United States, but illegal immigrants can make their children citizens by a transgression of the laws of the United States.[45]

President Trump will certainly face an uphill battle if he intends to do away with birthright citizenship for the children of illegal immigrants via executive order.[46] However, as Senator Grassley suggests, the Constitutionality of eliminating birthright citizenship for children of illegal immigrants through legislation may have more room for interpretation.[47]

That being said, any legislation which seeks to end birthright citizenship for the children of illegal immigrants is still on shaky ground.[48] There is evidence that shows “the legislative record as a whole makes unmistakably clear that the Senators understood the Fourteenth Amendment to extend birthright citizenship to non-U.S. nationals,”[49] the Wong Kim Ark decision, although not directly on point,[50] confirms this position,[51] and citizenship at birth has been the norm since at least Wong Kim Ark, except in a few narrow circumstances which did not include the children of illegal immigrants.[52]

[1] See John Wagner, et al. Trump Vows Executive Order to End Birthright Citizenship, a Move Most Legal Experts Say Would Run Afoul of the Constitution (Oct. 30, 2018), www.washingtonpost.com/politics/trump-eyeing-executive-order-to-end-citizenship-for-children-of-noncitizens-born-on-us-soil/2018/10/30/66892050-dc29-11e8-b3f0-62607289efee_story.html?utm_term=.ff66aecb3585. Last accessed 3/15/5

[2] See Jud Mathews Birthright Citizenship and Presidential Power (Nov. 3, 2018), https://verfassungsblog.de/birthright-citizenship-and-presidential-power/

[3] U.S. Const. amend. XIV. § 1.

[4] Kevin Liptak Trump Claims He Can Defy Constitution and End Birthright Citizenship (Oct. 31, 2018), www.cnn.com/2018/10/30/politics/donald-trump-ending-birthright-citizenship/index.html.

https://www.cnn.com/2018/10/30/politics/donald-trump-ending-birthright-citizenship/index.html

[5] Id. quoting Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project

[6] Lukas Voss Iowa Senator Chuck Grassley Addresses Trump Announcement on Birthright Citizenship (Oct. 31, 2018), cbs2iowa.com/news/local/iowa-senator-chuck-grassley-addresses-trump-announcement-on-birthright-citizenship.

[7] Eliza Collins Paul Ryan Disagrees with Trump’s Call to End Birthright Citizenship, Says It Would Be Unconstitutional (Oct. 31, 2018), www.usatoday.com/story/news/politics/2018/10/30/trump-cant-end-birthright-citizenship-executive-order-ryan-says/1821031002/.

[8] Susan Heavey U.S. Senator Says Will Offer Bill to Back Trump Birthright… (Oct. 30, 2018), www.reuters.com/article/us-usa-immigration-citizenship-graham/u-s-senator-says-will-offer-bill-to-back-trump-birthright-citizenship-plan-idUSKCN1N426C.

[9] Jordain Carney Graham to Introduce Legislation to End Birthright Citizenship (Oct. 31, 2018), thehill.com/blogs/floor-action/senate/413832-graham-to-introduce-legislation-ending-birthright-citizenship (quoting Vice President Pence in Politico).

[10] Id.

[11] Sen. Chuck Grassley, Grassley Statement on Birthright Citizenship (Oct. 30, 2018), www.grassley.senate.gov/news/news-releases/grassley-statement-birthright-citizenship.

[12] History.com Editors, 14th Amendment (Nov. 9, 2009), www.history.com/topics/black-history/fourteenth-amendment.

[13] History.com Editors, 13th Amendment (Nov. 9, 2009), https://www.history.com/topics/black-history/thirteenth-amendment.

[14] See U.S. Const. amend. XIII.

[15] See U.S. Const. amend. XIV. § 1; Akhil Reed Amar, America’s Constitution: A Biography, 382 (2005).

[16] History.com Editors, 15th Amendment (Nov. 9, 2009), https://www.history.com/topics/black-history/fifteenth-amendment.

[17] See U.S. Const. amend. XV; Akhil Reed Amar, America’s Constitution: A Biography, 382 (2005).

Cf. U.S. Const. amend. IXX.

[18] United States v. Wong Kim Ark, 169 U.S. 649, 676 (1898).

[19] Akhil Reed Amar, America’s Constitution: A Biography, 381 (2005).

[20] Id.

[21] See Id.

[22] See Tulane University Law School, History of Law: The Fourteenth Amendment, https://employment.law.tulane.edu/articles/history-of-law-the-fourteenth-amendment (“the 14th Amendment, designed to place limits on states’ power as well as protect civil rights.”).

[23] U.S. Const. amend. XIV. § 1.

[24] Id.

[25] U.S. Const. art I. § 1. Cl. 4; See also Adam C. Abrahms, Note, Closing the Immigration Loophole: the 14th Amendment’s Jurisdiction Requirement (1998), 12 Geo. Immigr. L.J. 469, 469; 486.

[26] The Brown Foundation, Combined Brown Cases, 1951-54, www.brownvboard.org/content/combined-brown-cases-1951-54. https://brownvboard.org/content/combined-brown-cases-1951-54#bolling

[27] Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

[28] Id.

[29] See Wong Kim Ark, 169 U.S. at 675; see also Library of Congress, https://www.loc.gov/law/help/statutes-at-large/39th-congress/session-1/c39s1ch31.pdf .

[30] Wong Kim Ark, 169 U.S. at 675.

[31] See Jordain Carney Graham to Introduce Legislation to End Birthright Citizenship (Oct. 31, 2018), thehill.com/blogs/floor-action/senate/413832-graham-to-introduce-legislation-ending-birthright-citizenship (quoting Vice President Pence in Politico); Sen. Chuck Grassley, Grassley Statement on Birthright Citizenship (Oct. 30, 2018), www.grassley.senate.gov/news/news-releases/grassley-statement-birthright-citizenship.

[32] Wong Kim Ark, 169 U.S. at 653.

[33] Id. at 705.

[34] Mathews, Supra, n. 2.

[35] Wong Kim Ark, 169 U.S. at 653.

[36] Id. at 652.

[37] Elk v. Wilkins, 112 U.S. 94, 109 (1884).

[38] Wong Kim Ark, 169 U.S. at 682. But see Adam C. Abrahms, Note, Closing the Immigration Loophole: the 14th Amendment’s Jurisdiction Requirement (1998), 12 Geo. Immigr. L.J. 469, 485 (arguing that children of illegal aliens meet the children of enemy aliens exception because “the illegal aliens are without doubt in the United States against its will and therefore their children must be excluded.”)

[39] Allen R. Kamp Article: Constitutional Interpretation and Technological Change, 49 New Eng. L. Rev. 201, 223.

[40] Elk, 112 U.S. at 99.

[41] Id. at 109. Top of Form

[42] Id. Bottom of Form

[43] Allen R. Kamp Article: Constitutional Interpretation and Technological Change, 49 New Eng. L. Rev. 201, 223.

[44] Id.

[45] See Kelly Gindele , article, The Birthright of Citizenship as to Children Born of Illegal Immigrants in the United States: What Did the Drafters of the Fourteenth Amendment Intend? (2007), 34 N. Ky. L. Rev. 367, 387-388

[46] Mathews, Supra, n. 2.

[47] Sen. Chuck Grassley, Grassley Statement on Birthright Citizenship (Oct. 30, 2018), www.grassley.senate.gov/news/news-releases/grassley-statement-birthright-citizenship.

[48] See Mathews, Supra, n. 2.

[49] Id.

[50] See Wong Kim Ark, 169 U.S. at 653.

[51] Mathews, Supra, n. 2.

[52] See Wong Kim Ark, 169 U.S. at 682.

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