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10/31/2018

More on Birthright Citizenship
Michael Ramsey

Predictably there has been an outpouring of commentary on birthright citizenship in light of the President's comments.  Without attempting anything comprehensive, here are a few highlights:

At Vokokh Conspiracy, Ilya Somin and Eugene Volokh (both of whom have some policy reservations about birthright citizenship for U.S. born children of illegal immigrants) nonetheless think it is constitutionally required.  Professor Somin adds (and I agree):

Even if the Fourteenth Amendment does not guarantee birthright citizenship to children of undocumented immigrants or temporary visa holders, it does not follow that the president can deny it to them by executive order. The Naturalization Clause of Article I of the Constitution gives Congress, not the president, the power to "establish an uniform Rule of Naturalization." And, when it comes to children of aliens born on US soil, Congress has in fact exercised that power. A federal statute, 8 U.S.C. Section 1401, extends birthright citizenship to any "person born in the United States, and subject to the jurisdiction thereof." For reasons well explained by Michael Dorf, this law must be interpreted as granting birthright citizenship to children of undocumented immigrants, even if the Supreme Court were to rule that the similar language of the Fourteenth Amendment does not.

Professor Volokh writes:

I personally think that categorical birthright citizenship is a bad idea; it would be better if children born in the U.S. to illegal aliens, or to legal alien tourists, didn't get U.S. citizenship as a result (though perhaps the answer might be different as to children of legal permanent residents, or to children who have lived here for long enough, or some such). U.S. citizenship is one of the most valuable things in the world, and we generally don't let people get hugely valuable things because of the criminal acts (even if only mildly criminal) of their parents, or for that matter because their parents were lawfully visiting the U.S. at a particular time. Whatever the basis for deciding who our future fellow citizens -- and thus the future rulers of the nation -- should be, the fact that the child was born on our territory shouldn't be enough.

This having been said, the Constitution seems pretty clear to me, even if I disagree with the rule it sets forth: Being the child of illegal aliens (as opposed to, say, the child of foreign diplomats) doesn't stop you from being "subject to the jurisdiction" of the U.S. Jurisdiction is an entity's power to impose its legal will on someone, and the U.S. unquestionably has the power to do that for children of illegal aliens as much as for children of legal aliens or of citizens. People who commit a crime, including the crime of illegal entry, don't somehow elude the jurisdiction of the U.S. as a result. Likewise, the children of people who commit this crime are subject to our jurisdiction as well.

In the New York Times, the great Reconstruction historian Eric Foner: Donald Trump;s Unconstitutional Dreams: The President Has Birthright Citizenship All Wrong.  (Thanks to Michael Perry for the pointer).

And at NRO, Robert Verbruggen: Birthright Citizenship: A Nutty Policy We’re Probably Stuck With.  It concludes:

The argument against birthright citizenship certainly has a long history, as can be seen in these legal opinions released within decades of the 14th Amendment’s enactment. But as I said at the outset, I don’t quite find it convincing, given the more direct evidence from the text and more immediate historical context — though it must be conceded that we have no idea what the framers of the 14th Amendment would have thought about illegal immigrants in particular, because illegal immigrants simply didn’t exist back then.

To defend an executive order before the Supreme Court, however, the Trump administration would need to convince all five originalist judges that “subject to the jurisdiction” must be read in a way that’s somewhat quirky to modern ears, relies on a highly specific reading of the historical evidence, and overturns more than a century’s worth of standard practice. That’s a longshot.