RUTHFULLY YOURS

President Trump recently disclosed plans to sign an executive order ending so-called “birthright citizenship” for babies of non-citizens born on U.S. soil. This would mark a major overhaul of immigration policy and almost certainly trigger a legal battle.

The 14th Amendment 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.” While opponents to Trump’s proposed action opine that the constitutional language is cut and dry, this might not necessarily be the case.

Putting aside the question of whether Trump may end birthright citizenship by way of executive order, the main issue of contention revolves around the “subject to the jurisdiction thereof” language in the 14th Amendment. Some opine that the 14th Amendment “was only intended to provide citizenship to children born in the U.S. to lawful permanent residents — not to unauthorized immigrants or those on temporary visas.” In other words, if a parent is in the country illegally and is, therefore, not subject to the jurisdiction of the United States, then, by association, neither is his or her newborn child.

Conversely, others interpret this provision to mean “the legal obligation of all foreigners and immigrants to follow U.S. law.” Stated another way, if a child is born to an illegal immigrant in the United States, the baby is automatically a citizen because he or she is obligated to follow U.S. law. The country of birth is paramount.

John C. Eastman highlighted the flaw(s) associated with this latter argument by way of a simple example in an article in National Review. He wrote:

When a British tourist visits the United States, he subjects himself to our laws as long as he remains within our borders. He must drive on the right side of the road, for example. He is subject to our partial, territorial jurisdiction, but he does not thereby subject himself to our complete, political jurisdiction. He does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance. He is merely a ‘temporary sojourner,’ to use the language employed by those who wrote the 14th Amendment, and not ‘subject to the jurisdiction’ of the United States in the full and complete sense intended by that language in the 14th Amendment.

The same is true for those who are in this country illegally. They are subject to our laws by their presence within our borders, but they are not subject to the more complete jurisdiction envisioned by the 14th Amendment as a precondition for automatic citizenship.

Unlike the Citizenship Clause, which uses the phrase ‘subject to the jurisdiction,’ the Equal Protection Clause bars a state from ‘deny[ing] to any person within its jurisdiction the equal protection of the laws.’ (Emphasis added.) The phrase ‘within its jurisdiction’ is territorial, whereas the phrase ‘subject to the jurisdiction’ is political.

When a person is in the United States illegally, he or she is still governed by and owes loyalty to a “foreign” entity or government (i.e. the government of the country where he or she lives). Easton cited renowned treatise writer Thomas Cooley, who wrote “The General Principles of Constitutional Law in America,” to back up this point: “‘Subject to the jurisdiction’ of the United States ‘meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.’”

This argument may extend to birthright citizenship. Specifically, children born to people who are not citizens of the United States are not automatically entitled to citizenship simply because they were born in the United States, as they are not subject to the complete jurisdiction of the United States as contemplated by the Civil Rights Act or the 14th Amendment citizenship clause.

In Elk v. Wilkins, the Supreme Court stated:

Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.

Republican Rep. Carlos Curbelo recently criticized President Trump over his intention to sign an executive order to stopbirthright citizenship. According to Curbelo, “Birthright citizenship is protected by the Constitution, so no @realDonaldTrump you can’t end it by executive order.” His conclusion appears to hinge on how the relevant language of the 14th Amendment is defined and interpreted.

Time will tell whether Curbelo is correct. The president’s authority to issue executive orders must come from the Constitution or federal law. In this case, Trump might be able to rely on Article II of the Constitution. According to Heritage Foundation scholar Todd Gaziano, “He has not only the power, but also the responsibility to see that the Constitution and laws are interpreted correctly.” Should Trump in fact sign an executive order of this nature, our highest court might be summoned to decide the issue and end the debate.