When it comes to the 14th Amendment, my good friend and fellow Justice Department veteran Andy McCarthy agrees that it does not require birthright citizenship. And we’re not alone: Other experts, such as noted constitutional law scholar John Eastman, law professor and former dean of the Fowler School of Law at Chapman University and a senior fellow at the Claremont Institute, take the same position on the citizenship clause (“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”).
But Andy and I differ on one very important point: whether the misinterpretation of the Amendment can be changed by executive order. He doesn’t think so; I say that it can.
Simply put, the president does have the ability through executive action to direct federal agencies to act in accordance with the original meaning and intent of the citizenship clause, and to direct those agencies to issue passports, Social Security numbers, etc., only to those individuals whose status as citizens meet the requirements of the law. This is especially true here where, contrary to Andy’s speculation, Congress actually did not clarify that its later statutory provision was somehow inconsistent with the original understanding of the Amendment.
Congress codified the citizenship clause in Section 301 of the Immigration and Nationality Act of 1952. Section 301 of the INA (8 U.S.C. §1401(a)) simply repeats a portion of the language of the 14th Amendment, stating that an individual shall be a citizen of the U.S. if he is “born in the United States, and subject to the jurisdiction thereof.” As Andy correctly says, the term “subject to the jurisdiction” of the U.S. was understood at the time this Reconstruction era amendment was adopted “to mean not owing allegiance to any other sovereign.”
It seems rather obvious that children born to aliens who are in this country either legally or illegally are citizens of the native countries of their parents. Those children owe political allegiance to their parents’ native countries and thus are not within the political jurisdiction of the U.S. As Andy points out, if a “child is born in France to a married couple who are both American citizens, the child is an American citizen” and thus “subject to the jurisdiction” of the United States.
The fact that any alien in the U.S. is subject to our territorial jurisdiction, and can therefore be prosecuted for breaking our laws, does not make them subject to the complete, political jurisdiction of the U.S. They owe no allegiance to the U.S. government and can’t be drafted into the military (if we re-imposed a draft); can’t be forced to serve on a jury; don’t have all of the same obligations, responsibilities, and rights that citizens do.
But Andy doubts that the president can change this through an executive order. The “issue is not just what jurisdiction was understood to mean in 1868 when the 14th Amendment was adopted, but what it meant in 1952, when the statute defining U.S. citizenship was enacted,” he writes. That is a cogent observation.
But, in fact, the legislative history of the INA does not reflect that Congress had a different understanding of “jurisdiction” in 1952. There is almost no discussion of this provision in the congressional record. One of the only lengthy discussions (but not about the jurisdiction requirement) is by Joseph Rider Farrington, who was the Territory of Hawaii’s delegate in the U.S. House of Representatives. He complained about the restrictive immigration measures at the time that didn’t allow permanent, resident aliens from Asian countries who were the parents of American citizens born in Hawaii to apply for citizenship.
This discussion by Farrington does not add any more to this debate than the 1898 holding in U.S. v. Wong Kim Ark, which stands only for the very narrow proposition that the U.S.-born children of lawful permanent resident aliens are U.S. citizens. It says nothing about the U.S.-born children of illegal aliens or aliens who are here temporarily like tourists.
There is nothing in the congressional record of the passage of what became 8 U.S.C. §1401(a) that indicates that members of Congress had any different understanding or intent with regard to the citizenship requirement of being “subject to the jurisdiction” of the U.S.
In fact, at one point in the debate in the House of Representatives on April 23, 1952, Representative Thomas A. Jenkins (R., Ohio) asked Representative Louis E. Graham (R., Penn.) whether the bill changes any of the “legal definitions that have from practice become practically a part of the law” on immigration and naturalization. Graham’s answer? The Immigration and Nationality Act “restates the former definitions in accordance with existing law and the most recent decision of the Supreme Court of the United States.” So no change in the definition of “jurisdiction.”
Andy correctly says that a president cannot “unilaterally change an understanding of the law that has been in effect for decades under a duly enacted federal law.” But that assumes the “understanding” is the correct one. If that understanding actually violates the plain text and intent of the law, the president as the chief law-enforcement officer can, and indeed has an obligation, to direct the federal government to begin applying and enforcing it correctly.
That is the key issue here — Section 301 of the INA and the citizenship clause of the 14th Amendment have been incorrectly enforced in violation of their terms.
There is no question that if President Trump issues an executive order directing federal agencies to apply federal law according to what Andy, I, and others believe is the correct interpretation, that the government will be sued. This issue, whether the U.S.-born children of aliens who are only here temporarily as tourists or students or who are in this country illegally are citizens, has never been directly addressed by the U.S. Supreme Court.
Perhaps it is time this question was answered.
This piece originally appeared in the National Review