Since Election Day 2024, President Trump has raised the issue of Birthright Citizenship. This is not the first time this has come up. It was discussed during the 2016 campaign, and Trump raised this issue during the four years he was in office.
Specifically, Trump wants to end birthright citizenship. We should be more specific on what he wants to end. Currently, the United States grants citizenship to anyone born in the U.S. soil, except to children of foreign ambassadors and enemy soldiers. Trump wants to end offering citizenship to children born to temporary visitors and to children born to illegal aliens. Much of the public’s focus is on the latter.
Trump states he will be able to accomplish this through executive action, meaning that he alone as president can enforce the law consistent with the way he interprets it. The law in question is the Fourteenth Amendment of the U.S. Constitution. Specifically, the first sentence of the amendment, known as the Citizenship Clause.
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.
When most people read that sentence, it sounds like if someone is born here, that someone is a citizen of this country. However, as mentioned above, children of foreign ambassadors born on U.S. soil are not citizens of this country. Clearly, the Citizenship Clause excluded some people from receiving automatic birthright citizenship. It is the often-ignored phrase and subject to the jurisdiction thereof that defines those included classes and excluded classes when deciding who is entitled to birthright citizenship. The question becomes what is the meaning subject to the jurisdiction thereof. The answer is found in the Civil Rights Act of 1866, enacted two months before Congress proposed the Fourteenth Amendment.
That 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 . . .
After Congress passed the Civil Rights Act of 1866, there was concern that Congress lacked constitutional authority enact the legislation. There was also concern that a future Congress could repeal the act. Because of these concerns, Congress proposed the Fourteenth Amendment.
The similar language in the citizenship clauses in the amendment and the act was no coincidence. Given the similar wording, subject to the jurisdiction thereof in the amendment means that one is not subject or have any allegiance to a foreign power. The Civil Rights Act of 1866 also excludes American Indians (those who belonged to tribal nations and were not subject to the jurisdiction of the United States) from birthright citizenship.
When the Fourteenth Amendment was ratified in 1868, the classes of individuals excluded from automatic birthright citizenship were children born to: foreign ambassadors, enemy soldiers, all other foreign nationals with allegiance to another nation, and American Indians (not taxed).
Today we are faced with a category of individuals not specifically addressed in the 1860, and that category is illegal aliens. Should children born to an illegal alien on U.S. soil receive automatic birthright citizenship? Since we cannot ask those who voted to propose the amendment or those who voted to ratify it, we must use judgment to answer the question.
As already stated, those who are who are already barred from automatic birthright citizenship include foreign ambassadors, American Indians, and enemy soldiers. We have invited foreign ambassadors to live in the country while serving in that capacity. We have allowed American Indians to stay in the country, albeit on reservations. We clearly did not want enemy soldiers on U.S. soil. In all three categories of individuals, we deny birthright citizenship children born in the United States.
Illegal aliens are neither ambassadors, nor American Indians, nor enemy combatants. On the spectrum of non-American residents, Illegal aliens would appear to fall somewhere between ambassador and American Indians on the one hand and enemy combatants on the other. It would be incoherent to grant automatic birthright citizenship to the children to illegal aliens and deny automatic birthright citizenship to the children of ambassadors, American Indians, and enemy combatants.
This is the position that the incoming Trump Administration should take. It is both logical and constitutional. The Citizenship Clause is self-executing, meaning the president has the authority to interpret the clause and to enforce the clause. Congress neither needs to write a law to give the president the authority to enforce Section 1 of the Fourteenth Amendment nor does Congress need to a propose a new amendment to address this issue.
When Trump declares that the United States will no longer recognize birthright citizenship, the American Civil Liberties Union, along with other groups, will challenge this declaration legally. This battle will soon find its way into federal court and will one day find itself before the Unites States Supreme Court.
It is difficult to know how the Court will decide such cases. When Trump was in office, he wanted to end birthright citizenship, but ultimately did not. Very likely, he received advice from his team that a Supreme Court challenge might not go his way during much of first term, given the Court’s makeup. During that term, however, he managed to get the U.S. Senate to confirm all three of his nominees to the high court, including Justice Amy Coney Barrett, who was installed shortly before his term ended.
My guess is that Trump and his advisors like his chances now to have the Supreme Court endorse his reading of the Citizenship Clause of the Fourteenth Amendment of the Constitution.