On Birthright Citizenship
Perhaps the highest profile Executive Order that Donald Trump issued on 20 January is that titled Protecting The Meaning And Value Of Citizenship, which purports to exclude two classes of individuals from a grant of birthright citizenship: those born to undocumented immigrants, and those born to lawful, but temporary, residents (such as those here on a student or temporary work visa). Based on 127 years of Supreme Court precedent, this Order is blatantly, brazenly, and flagrantly unconstitutional.
Birthright citizenship in the US is rooted in the Citizenship Clause of Section 1 of the 14th Amendment (14A), which reads:
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.
14A excludes from birthright citizenship those individuals born on US soil, but who are:
Children of foreign diplomats
Children of members of an enemy occupying force (such as the British were in the War Of 1812)
Children of members of Native American tribes whose sovereignty was recognized by treaty with the US (such children were subsequently granted US citizenship via the Indian Citizenship Act of 1924)
Further, as Professor Steve Vladeck of Georgetown Law Center explains, birthright citizenship is also guaranteed by statute, part of the Civil Rights Act of 1866 (CRA 1866), re-enacted in 1870 following ratification of 14A, and codified as 8 U.S. Code § 1401.
Both 14A and CRA 1866 establish the legal principle of jus soli, or "right of soil," the right of anyone born on US soil to citizenship. This principle has governed the grant of citizenship in the US since at least 1898. That year, the Supreme Court (SCOTUS) decided the case United States v. Wong Kim Ark. Born in San Francisco in 1873 to Chinese immigrant parents who were not US citizens Wong Kim Ark had traveled to China in 1894. On his return to San Francisco the following year, the Collector Of Customs denied Wong re-entry to the US on the assertion that he was not a US citizen. Wong sued the US to vindicate his claim to citizenship by virtue of being born on US soil. SCOTUS, in a 6-2 decision (one Justice recused), held that Wong was, indeed, a US citizen based on jus soli. SCOTUS reaffirmed this principle in Plyler v. Doe (1982), explicitly stating that birthright citizenship applies specifically to illegal immigrants: “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” Three years later, in the case INS v. Rios-Pineda, the court held that illegal immigrants "had given birth to a child, who, born in the United States, was a citizen of the country."
The Executive Order attempts to evade these unambiguous precedents via a novel (and edge, if not fringe, in the legal academy) interpretation of who is "subject to the jurisdiction" of the US, one with precisely zero support in SCOTUS caselaw. The argument is that a foreign country has jurisdiction over the children of illegal immigrants and lawful temporary alien residents, as with children of diplomats or foreign occupying powers, in that such parents owe allegiance to their country of origin rather than the US. Such individuals, therefore, are claimed not to obtain birthright citizenship. While there is a modest body of literature in legal scholarship advocating such a reinterpretation, it represents a decidedly minority position, with no support in SCOTUS jurisprudence.
The Order states "But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States." True, but a strawman. No one posits that it has. Children of foreign diplomats and of occupying foreign powers were from the beginning consensus exclusions.
The legal battle over the Order has already begun. On 23 January 2025, Senior U.S. District Judge John Coughenour in Seattle issued temporary stay of the Executive Order, while he considers an injunction. Said Judge Coughenour, "I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is. This is a blatantly unconstitutional order,” Coughenour, an appointee of Ronald Reagan, said from the bench. “There are other times in world history where we look back and people of goodwill can say where were the judges, where were the lawyers?” The following day, Judge Coughenour issued a nationwide injunction against the Order.
This case will certainly proceed, ultimately, to SCOTUS. How long this takes will hinge, in large measure, on whether the appellants (in this case, the Department of Justice) petition SCOTUS for an interlocutory appeal, which would skip the appellate court (here, the Court of Appeals for the 9th Circuit) if granted. Once before the justices, the question becomes whether as many as five might sign on to a wholesale, and radical, reinterpretation of 14A. My educated guess is that no more than three might do so: Justices Alito and Thomas (who have proved reliable in acceding to Trump administration requests), and, possibly, Justice Gorsuch. The three Democratic appointees certainly will not, and I suspect neither will Justice Barrett nor Chief Justice Roberts. Where Justice Kavanaugh, the least consistent jurist of Trump's three appointees, might fall is a tougher question. Were I to wager on the outcome, I'd predict that the case would end in a 6-3 defeat for the Trump administration.
One possibility for resolution by SCOTUS would be to avoid the constitutional question altogether. CRA 1866 contains the same language as 14A regarding citizenship, and, so, the court could conceivably settle the case via statutory interpretation. The Chief Justice is often a proponent of constitutional avoidance where possible. That said, I doubt whether he could find four others to join him. Whether now or shortly, the constitutional question must, and will, be settled. In any case, it is not far-fetched that one or more justices might essentially invite congress to enact a more restrictive model of citizenship via legislation, repealing CRA 1866. Such a statute would face the same constitutional difficulties as the Executive Order.
Outside the Order and the legal case, many on the political right, including members of this Trump administration, have made much of the notion that illegal immigrants constitute an "invasion force", potentially excluding their children from citizenship by referencing the language in the Wong Kim Ark opinion respecting the exclusion from citizenship of children born to "enemies within and during a hostile occupation of part of our territory." This has been a lurking, though still fringe, line of argument for decades, intensifying in recent years. Two problems face such a proposition. One, as Jamelle Bouie notes in a recent New York Times column, "It strains credulity to describe illegal border crossings — by overwhelmingly peaceful migrants — as anything hostile or aggressive." Second, it would be an even greater strain to characterize these migrants as representing an "occupation of part of our territory." They hold no US territory in the way the British army did in the War of 1812. This line of attack on birthright citizenship would face gale force headwinds in the federal courts.
This is the first test of this administration's direct attacks on settled law, and, thus far, the proverbial guardrails are holding. While something truly unprecedented could occur in this legal battle, the force of 157 years of American law weigh heavily against it.