Can Congress End Birthright Citizenship?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Nov 3, 2018

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The first sentence of the Fourteenth Amendment to the United States Constitution states: “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.”

The amendment uses more general language, including “due process” and “equal protection of the laws,” to guarantee broad rights to all persons who are in the United States. In its citizenship clause, however, the amendment is very specific. Every person who is born in the United States is a citizen.

The president, for example, is a citizen of the United States because he was born in the United States. Barack Obama was a citizen for the same reason. Most Americans are citizens because of birthright citizenship.

The president recently promised that he would end birthright citizenship with an executive order. Perhaps in response to reminders that there are limits to presidential authority, the president retracted that promise the day after he made it. He is now promising to “push Congress” to enact legislation next year that would end birthright citizenship.

Coming as they did in the days before an election, it is fair to believe that the promises were intended to energize certain voters and will quietly recede into history in the coming months. Even outgoing Republican House Speaker Paul Ryan understands that neither legislation nor an executive order can change the Constitution’s guarantee of birthright citizenship.

Who Is Subject to US Jurisdiction?

The only plausible arguments that birthright citizenship can be ended legislatively are based on the qualifier in the Fourteenth Amendment, “and subject to the jurisdiction thereof.” One argument might be that children born to noncitizens who have been lawfully admitted to the United States are entitled to birthright citizenship (their parents having agreed to be “subject to the jurisdiction” of the United States by accepting a visa), but that children of immigrants who entered the country unlawfully are not subject to the country’s jurisdiction.

That argument is difficult to make because federal and state authorities routinely arrest and prosecute noncitizens who entered the country unlawfully. Those arrests can only be made because mere presence in the country subjects nearly everyone who lacks diplomatic immunity to the laws of the United States. Anyone who can be prosecuted in a nation’s courts is by definition subject to the nation’s jurisdiction.

Congressional Authority to Determine Citizenship

Another argument might be that Congress has the authority to determine jurisdiction, and can enact a law that removes children born to noncitizens from the jurisdiction of the United States. Congress plainly has the authority to bestow citizenship. Legislation allows noncitizens to be nationalized and confers citizenship upon children born to American citizens abroad. But conferring citizenship by legislation is not the same as taking away citizenship that is conferred as a constitutional right.

While the Supreme Court held in Dred Scott that slaves are not citizens — a vile holding that the Fourteenth Amendment overturned — the Court recognized that it was “well understood in this country at the time of the adoption of the Constitution” that United States citizenship is acquired by birth in the United States. The phrase “and subject to the jurisdiction thereof” in the Fourteenth Amendment was not intended to change that understanding.

Rather, the meaning of the birthright citizenship clause has been settled for more than a century. In United States v. Wong Kim Ark (1898), the Supreme Court considered the plight of a man who was born in San Francisco to Chinese parents. The man made a short visit to China and, upon his return, was denied entry to the United States on the ground that he was not a citizen.

The Supreme Court concluded that the man had birthright citizenship. The Court noted that the phrase “and subject to the jurisdiction thereof” was “not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption.”

Rather, the phrase carved out three narrow exceptions to birthright citizenship that were recognized when the Fourteenth Amendment was adopted: members of Indian tribes (who were subsequently given birthright citizenship by legislation); children born to prisoners of war (“alien enemies in hostile occupation”); and children born to diplomatic representatives of a foreign nation (who, by virtue of diplomatic immunity, are not subject to the nation’s jurisdiction).

The Purpose of the Fourteenth Amendment

Arguments that Congress can change birthright citizenship are not grounded in constitutional history. The citizenship clause was included in the Fourteenth Amendment to assure that slaves and the children of slaves who were born in the United States would be citizens. Many slaves were brought to the United States after 1807, the year in which Congress made it illegal to import slaves. The Fourteenth Amendment made clear that children who were born in the United States would be citizens, even if their enslaved parents were brought into the country illegally.

Birthright citizenship is therefore firmly established in the Constitution. Congress cannot amend the Constitution. Congress can propose constitutional amendments, but the proposal must be ratified by three-fourths of the states. The president has broad authority to promulgate executive orders, but he cannot issue an order that defies the Constitution.

Since birthright citizenship is enshrined in the Constitution, and since it was well-established when the Fourteenth Amendment was adopted that birth on American soil confers American citizenship by legislation or executive order. Whether or not the president’s proposals are intended to be more than political rhetoric, neither proposal can successfully transgress a firmly established constitutional principle.

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