Peter Spiro (Temple University)
Among his first actions as re-installed president, Donald Trump issued a January 20 executive order purporting to roll back territorial birthright citizenship in the United States. Under the order, US citizenship would extend at birth only to children who have at least one citizen or permanent resident parent. Children born to unauthorised immigrants and temporary visa holders would be denied birth citizenship.
Even though the action — a top Trump campaign promise — was expected, it has landed with a political thud. It flies in the face of the text of the US Constitution, Supreme Court holdings, and more than a century of uniform administrative practice. The order would, if given effect, trigger a raft of second-order complications.
The birthright citizenship order looks to be a rough equivalent of the first-term Trump travel ban, which also provoked broad opposition. This time around, however, there is a much better chance of the US Supreme Court standing in the way. Allowing the order to go into effect would mark a foundational change in US constitutional culture.
Flawed Legal Logics
Adopted in 1868, the so-called Citizenship Clause of the Fourteenth Amendment to the US Constitution provides that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The January 20 order asserts that “the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.” That is true, but only because three exceptions enjoy consensus agreement: the children of accredited diplomats, those born into membership in the Native American tribes, and children born to members of a hostile occupying military force.
Beyond that, there are no exceptions. The putative basis for the Trump additions is that the children of undocumented or so-called non-immigrant mothers, at least where “the person’s father was not a United States citizen or lawful permanent resident,” are “not subject to the jurisdiction” of the United States. (The order will also work in reverse, denying citizenship to the children of unauthorised or non-immigrant fathers where the mother is not a citizen or permanent resident.) Trump lawyers have argued that such individuals will be “subject to a foreign power” through their citizenship in another state.
But this line is patently ahistorical and, in any case, can’t be reverse-engineered to justify the outlines of the Trump order. The Supreme Court rejected the argument in its 1898 decision in United States v. Wong Kim Ark. There the Court found the child of Chinese noncitizen residents to be within the scope of the Citizenship Clause even though the parents were subjects of the emperor of China at the time of the child’s birth. “Every citizen or subject of another country,” the Court reasoned, “while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” As the Court noted, “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.”
The Trump order suffers from the same error. If the Citizenship Clause does not extend to those who are (through foreign citizenship) subject to the jurisdiction of other countries, then it would exclude a huge swath of those born to the resident population, many more than those targeted by the rollback. Excluded would be the children of almost any non-naturalized parent, regardless of US immigration status. Excluded also would be those born to dual citizen parents (which now includes most naturalised citizen parents). Driven to its logical extreme, the qualification would foundationally undermine jus soli as expansively practised by the United States.
Just as the justices in Wong Kim Ark were protective of those with European parentage, Trump is not looking to exclude all those who may, through citizenship, be subject to foreign jurisdiction (including his own son Baron, who holds Slovenian citizenship from birth). But there is no way to put the “subject to the jurisdiction” condition to work in drawing the line between the children of unauthorised and temporary migrants, on the one hand, and the children of permanent residents and dual citizens, on the other.
Nor can the order be sustained under a previously fringe theory that the recent influx of unauthorised migrants constitutes an “invasion” qualifying as the constitutional equivalent of a hostile occupying army. Never mind that this is nonsense as a matter of common understanding and international law in no way could the temporary legal migrants excluded under the order be classified as such.
Unbroken practice
It is true, as Trump supporters highlight, that the Wong Kim Ark ruling did not consider an unauthorised or temporary migrant; although Wong’s parents were ineligible for citizenship under racist anti-Asian naturalisation laws in place at the time, they were legally present in the US. But subsequent practice has established the application of the Citizenship Clause in all cases beyond the agreed exceptions. Unauthorised immigration wasn’t much of a thing when Wong Kim Ark was decided. But as such federal immigration controls ramped up in the early twentieth century, there was never any question that citizenship extended to persons born in the US to non-citizen parents regardless of their immigration status.
This practice is itself of constitutional consequence. Executive branch officials are charged with faithfully implementing the Constitution; their practice, especially when consistent and longstanding, counts as a form of constitutional interpretation. The US Congress has also accepted the prevailing interpretation as settled. Since 1992, bills have been introduced in every session of Congress to roll back the existing approach through statutory and constitutional revision. These proposals have been complete non-starters – none has progressed far enough to come to a vote in either chamber. Their failure further confirms citizenship allocation regardless of parental immigration status.
Faulty mechanics and unintended consequences
Constitutional profundities aside, the Trump order is poorly conceived as an operational matter. As with the 2017 travel ban, the drafting process appears not to have included immigration law experts. The order leaves important questions unanswered.
First of all, the order would leave in the lurch the children of temporary immigrants – noncitizen students and workers but also asylees and those on various forms of temporary protected status. For the obvious reason that such individuals have been allocated citizenship at birth under existing practice, there has been no need to provide for the extension of non-immigrant status to those born in the US. If the January 20 order were made effective, under existing law, these children would be born without status and, in theory, at least, deportable. Also affected would be those whose parents have been approved for permanent residence but whose adjustment of status is delayed by backlogs created by green-card quotas (in the case of Indian-born skilled workers, a backlog now standing at twenty years or longer). A child born to such a permanent resident-in-waiting would have neither citizenship nor any other status at birth.
Then there is the archaic conception of family and birth that permeates the order, which clearly assumes a child who is born to a mother and a father under traditionalist conceptions of childbearing. (This is not a coincidence, of course, as the Trump Administration moves on other fronts to reinscribe outdated approaches to family.) Unaddressed are the many now prevailing non-traditionalist routes to parentage.
Most obviously, among them would be children born in the context of same-sex marriage. In gay marriages, who counts as the “father” when there are two? With respect to lesbian marriages, what results when an undocumented spouse bears a child whose other mother is a citizen? Then there are the many combinations of childbearing involving assisted reproductive technologies, which have been completely mainstreamed in the US and elsewhere. Some of these complications could be resolved with implementing guidance. One suspects that, in a traditionalist vein, most of it would be on a genetic basis, regardless of marital/parental status.
Read literally, the child of an undocumented mother and a citizen father who dies during gestation would not have citizenship at birth since the order requires citizenship or permanent residence “at the time of” the child’s birth. The order would also surely result in an increase in the incidence of statelessness among the US-born.
Why Birthright Citizenship is an American Necessity
The prevailing understanding of birthright citizenship enjoys considerable administrative advantages. All one needs to establish an entitlement to citizenship is a non-fraudulent birth certificate. Adopting any system requiring evidence of parental status would introduce substantial complications. State and local authorities and/or hospital administrators who have responsibility for birth registration (the federal government does not issue birth certificates) would presumably be injected into the process of citizenship determination.
In contrast to European and Asian states, libertarian tendencies in US political culture have resisted systems of comprehensive state documentation. Americans are not required to carry state-issued identification or register with local authorities. There is nothing even remotely approaching a citizenship roll. Many citizens carry no authoritative evidence of citizenship. (Only a bare majority of Americans have passports). Immigration authorities, who have never enjoyed a reputation for efficiency or even competence, would inevitably be drawn into individual cases.
The citizenship action might not trigger the kind of scenes that transpired at US airports in 2017. But the initial operation of the proposed regime would almost certainly trigger chaos on the ground. This chaos would ramify through the legal system. Validation of the rollback would require the development of a whole new jurisprudence of US citizenship.
Of course, the courts will first have to decide on the validity of the order itself. Several challenges have already been filed by states, NGOs, and non-citizen women projected to give birth after the order’s effective date. The first lower court pronouncement found the order “blatantly unconstitutional.” Expect a chorus of rulings from other judges to the same effect. These will make for good headlines and will create an additional layer of restatements of the compelling case against the rollback. But the Supreme Court will almost certainly have the last word.
How will the high court rule? There is reason for qualified optimism. In contrast to the travel ban case, which involved the extreme judicial deference to rules for admission to the US, the Court here, as a formal matter, would be exercising its full powers of review. It might be able to find a non-constitutional (or less freighted constitutional) off-ramp relating to the form of the order, to the effect that whether this would be constitutional if enacted by Congress as a statute, the President does not have authority to accomplish the result unilaterally. This lower-intensity route would kick the question to Congress, where it would die anew.
If the Court gets to the core question, the result would, at this point, be anyone’s guess. A solid conservative majority now dominates the Supreme Court, one which appears to be willing to do Trump’s bidding even where it requires legal contortions. But the contortions here could be too obvious. The Court has taken a serious hit to its institutional legitimacy in the wake of its 2022 ruling erasing a constitutional right to abortion; signing off on the birthright citizenship order, attacking a constitutional entitlement with an even longer pedigree could be understood to push that damage beyond foreseeable repair. The Court might also be mindful of how those second-order questions would come back to its doorstep. Validating the order would not be a one-and-done. There would be a long tail of cases reminding the public of the Court’s complicity in the constitutional rewrite. Meanwhile, a cohort of dispossessed American-born, American-raised children, presenting themselves as the Americans they are, would reinforce opposition.
If the Court upholds the rollback, we would witness the most significant change in US citizenship practice since the adoption of the 14th Amendment itself. On the turbulent landscape of the Trump era, the shift is not unthinkable. Even though the US is hardly the only country applying expansive jus soli against the landscape of contemporary migration realities, territorial birthright citizenship is distinctively American. It has been not just constitutional but also constitutive. To redraw its outlines would cut to the core of American identity, which may itself be entering a phase of revision and degradation.