A previous Legal Memorandum explored the legal case for a much more limited application of birthright citizenship than is practiced under current U.S. policyREF and ultimately concluded that the Fourteenth Amendment’s Citizenship Clause was intended to afford—and was originally understood as affording—birthright citizenship only to those U.S.-born children whose parents were, like the freed slaves, subject to the complete jurisdiction of the United States. In a modern immigration context, this would mean that the Constitution only mandates birthright citizenship for the U.S.-born children of citizens, nationals, and lawful permanent residents (also known as immigrant aliens or green card holders).

This Legal Memorandum will analyze the political justifications for reconsidering the nation’s long-standing policy of granting birthright citizenship to almost all children born on U.S. soil—regardless of the immigration status of the parents. These political justifications can be boiled down to three main concerns: the electorate, the economy, and national security. It will also explore the legislative history of relevant statutes regarding immigration and nationality in order to ascertain whether Congress adopted statutory definitions of citizenship that are much broader than the constitutional definition.

Finally, this memorandum will sift through the legislative history of the changes in the statutory definition of “citizen” to determine whether there is room for the executive branch to act according to a more restrictive definition. It ultimately concludes that, while the statutory definition of “citizen” is not as clear as it was prior to 1940, the ambiguity enables the President to enforce the law according to a good faith interpretation of what Congress intended.

I. Political Justifications for Reconsidering Current U.S. Policy

There are three main policy-based justifications for a meaningful re-examination of the federal government’s current practice of granting universal birthright citizenship: political expediency, economic reality, and national security. From the viewpoint of political expediency, President Trump repeatedly promised throughout his election campaign and during his presidency to “end birthright citizenship” as part of a broader focus on immigration policy reform. These promises appear to have spurred voter turnout in his favor, and Americans in general tend to have a favorable view of efforts to reduce illegal immigration.

Further, granting citizenship to the U.S.-born children of illegal aliens compounds already significant illegal immigration–related economic burdens on the American taxpayer. Economic considerations also arise in the context of the so-called birth tourism industry, which encourages foreign nationals to give birth to U.S. citizen children through the promise of gaining the financial advantages of citizenship while avoiding corresponding duties. Finally, the birth tourism industry in particular raises serious national security concerns. The United States should be incredibly wary of the prospect of hundreds of thousands—even millions—of “citizens” raised in hostile nations, all of whom will soon be able to vote in U.S. elections, hold U.S. government jobs, and even join the U.S. military.

A. President Trump Repeatedly Pledged to End Universal Birthright Citizenship.

President Trump’s position that the Fourteenth Amendment does not mandate universal birthright citizenship predates his 2016 presidential campaign.REF He affirmed both during and after the Republican primaries that, as President, he would work to end the current U.S. policy of granting citizenship to the U.S.-born children of illegal aliens. This position and pledge of action comprised a key part of then-candidate Trump’s plan for immigration reform, which likely played a substantial role in his ultimate victory.REF

The President’s campaign promises were unambiguous: Universal birthright citizenship is poor public policy that is not constitutionally mandated—and ending it would be a significant part of his overall plan for immigration reform. For example, during the early days of his Republican primary campaign, then-candidate Trump released a 1,900-word document outlining his three core principles for immigration reform, which included ending universal birthright citizenship as a component of “defend[ing] the laws and constitution.”REF

Then-candidate Trump doubled down on this plan after journalists and other presidential candidate hopefuls responded negatively to it or insisted that such a policy would require a constitutional amendment, subsequently reaffirming his position in interviews with CNN’s Chris Cuomo and Fox News’ Bill O’Reilly.REF He continued throughout the primaries—including during campaign rallies,REF media interviews,REF and even during an official televised debate with other GOP candidatesREF—to denounce birthright citizenship for the children of illegal immigrants and promise to seek an end to it as president. Despite these promises, during his two years in office, President Trump has remained largely silent—and completely inactive—on the issue of birthright citizenship, focusing instead on promises to end President Obama’s Deferred Action for Childhood Arrivals program and build additional miles of wall along the southern border.

B. Universal Birthright Citizenship Imposes Significant State and Federal Economic Burdens.

The current U.S. policy of granting unquestioned universal birthright citizenship to virtually all children born within its geographical boundaries is economically detrimental in three major ways:

1. The policy incentivizes and rewards illegal immigration, which contributes substantially to the overall economic burden imposed on U.S. taxpayers.
2. The policy has single-handedly created the birth tourism industry, a burgeoning market ripe with opportunities for foreign nationals to exploit public benefits in the United States.
3. Because the U.S.-born children of both illegal and nonimmigrant aliens can later sponsor the immigration of their family members to the United States in a seemingly endless process of “chain migration,” the majority of the nation’s annual immigration flow is family-based and operates entirely independent of economic considerations or labor needs.

Financial Incentives and Rewards of Illegal Immigration. Every year, an estimated 250,000 to 400,000 children are born in the United States with at least one parent who is illegally present in the country.REF While the precise percentage of children born with two illegal alien parents is unknown, similar statistical indices indicate that somewhere between one-half and two-thirds of these children are likely born without either parent having legal—much less citizen or immigrant alien—status.REF

Under current U.S. policy, the federal government recognizes each of these children as U.S. citizens—despite the illegal status of their parents and the fact that the vast majority of them also acquire citizenship in their parents’ native country.REF The economic burden imposed on U.S. taxpayers as a direct result of this universal birthright citizenship policy often begins from the very first moments of life for these U.S.-born children of illegal aliens, with state and the federal governments picking up the tab for the cost of the physical births. Federal law requires almost all hospital emergency departments to treat all patients in active labor regardless of their legal status or ability to pay for services.REF Medicaid’s “pregnancy care” provision covers the public cost of delivery or post-partum care for uninsured or low-income individuals in these instances, meaning that ultimately U.S. taxpayers foot the bill.REF

According to one estimate, births to illegal alien mothers covered by Medicaid likely cost the federal government $1.24 billion in 2017.REF This estimate assumes that the percentage of illegal alien mothers without insurance is roughly the same as the percentage of citizen mothers without insurance, but illegal alien-headed households are significantly more likely than are citizen-headed households to fall below the poverty line and take advantage of public welfare services.REF

The costs of the physical births of the U.S.-born children of illegal aliens are just the beginning of a long set of economic burdens imposed on both the state and federal governments by the nation’s current universal birthright citizenship policy. Although illegal aliens themselves cannot access major welfare benefits, they can—and often do—obtain these benefits on behalf of their citizen children, enabling the benefits to indirectly support the entire family.REF These payments effectively act as welfare for the entire illegal alien–headed household by subsidizing the costs of bearing and raising children.REF

Nationwide, illegal alien–headed households are twice as likely as households headed by native-born citizens to receive at least one type of major federal welfare benefit.REF At least one analysis of federal welfare use estimated that illegal alien–headed households receive a cumulative annual benefit of over $10 billion from major programs like Medicaid and the Supplemental Nutrition Assistance Program (SNAP), with another $3.5 billion lost to Medicaid fraud associated with illegal immigration.REF These estimates are consistent with decades-old analyses by the United States General Accounting Office (since renamed as the U.S. Government Accountability Office), which estimated that $1.1 billion in federal year 1995 were spent on various food and nutrition benefits for the U.S.-born children of illegal immigrants, with a then-estimated illegal alien population of 5 million (compared to today’s estimate of well over 10 million).REF

This is just the cost born by the federal government. State taxpayers pick up the tab for another estimated $5.5 billion in major welfare services to illegal alien–headed households and $2 billion lost to associated Medicaid fraud.REF The states do not bear an equal burden in this regard, but instead a small number of states where the greatest percentages of illegal aliens reside are disproportionately affected. Indeed, the 10 states estimated to have the largest populations of illegal aliens account for nearly three-quarters of the total national population of illegal aliens.REF Compounding this problem, illegal alien–headed households in these 10 states also tend to receive welfare benefits at disproportionately higher rates than in states with smaller illegal alien populations.REF

Unfortunately, it is often the case that, even in the 10 states most heavily affected by illegal immigration, the economic burdens fall disproportionately on a small number of individual counties. Take Los Angeles County, for example. In 2014, County Supervisor Michael D. Antonovich issued a press release regarding the data collected by the Department of Public Social Services, which indicated that during the 2013 fiscal year the county issued $639 million in welfare and food stamp benefits to illegal aliens on behalf of their citizen children.REF This included $112 million under the state’s CalWORKS welfare program and $200 million in state-issued CalFRESH food stamps.REF The County spent roughly 20 percent of its public welfare funds on illegal immigrants, presenting a constant drain on its financial resources.REF Further, these data did not include the hundreds of millions of dollars the county spent on public education and health care for illegal alien–headed households.

It is undeniable that many illegal aliens came to the United States in order to better their lives and the lives of their children and would desire to ultimately become American citizens. It is evident, however, that illegal immigration places a tremendous economic burden on U.S. taxpayers, and that the benefits of having U.S. citizen children incentivize and encourage this economically burdensome phenomenon.

Birth Tourism. The United States’ current birthright citizenship policy has directly led to the creation of a burgeoning birth tourism industry that encourages—and even directly assists—foreign nationals in taking financial advantage of U.S. taxpayers. Birth tourism refers to the phenomenon of pregnant foreign women coming to the United States for the sole purpose of giving birth on U.S. soil, thereby making their children U.S. citizens under current U.S. policy.REF These birth tourists often use one of the hundreds of companies that cater to upper-middle-class women from China, Nigeria, Russia, and Turkey, and that tout the substantial economic and social benefits that come from having a U.S. passport holder in the family.REF While the exact number of birth tourists who secure U.S. citizenship for their children every year is unknown, estimates generally range from 30,000 to nearly 80,000.REF This number appears to be growing at a significant rate, and some reports indicate that in 2016, as many as 60,000 birth tourists came to the U.S. from China alone.REF

Although many of these maternity hotels are legitimate businesses that operate within the confines of U.S. law, the industry is rife with opportunities for fraud. One 2015 federal investigation into a birth tourism company catering to Chinese women uncovered a scheme in which the company funneled hundreds of women to public hospitals and coached them in how to obtain reduced rates for indigent mothers.REF The women (who often had substantial financial assets on hand) typically paid only a fraction of their bills, which averaged around $25,000 per woman.REF This led to large financial losses for the hospitals, including one hospital in particular that provided services for over 400 births linked to the scheme over only a two-year period.REF

As with other financial costs associated with illegal immigration, birth tourism fraud disproportionately impacts a small number of states such as Florida, which since 2000 has experienced a 200 percent increase in births by foreign nationals who live outside the United States.REF The Jackson Health System of Miami—where almost one in 10 patients who gave birth in 2017 were birth tourists—recently reported that only 72 percent of international maternity patients pay for their services with insurance or through a pre-arranged package.REF It is possible that the other 28 percent of international maternity patients pay the entire cost up-front or in later installments, but it is very likely that at least part of this remaining percentage is attributable to fraud schemes.

One of the major motivating forces behind birth tourism is the draw of foreign parents to significantly reduced costs of an American education for their child.REF Even though the vast majority of birth tourists return to their native country with their U.S.-born children, these children are considered U.S. citizens with equal access to public schools, in-state college tuition, low-interest student loans, and tax-exempt student loan payments. While it is unknown just how many U.S.-born, foreign-raised children take advantage of free public schools and reduced-rate college tuition every year, the number is not “zero” and appears destined to rise in tandem with the increasing numbers of foreign women giving birth to citizen children for precisely these purposes.REF

The financial consequences of this are not insubstantial, either. In Florida and California—two states at the center of the birth tourism industry—taxpayers shell out roughly $9,000 and $10,500, respectively, per public school student, per year.REF If even 1 percent of the estimated 60,000 U.S.-born children of birth tourists took advantage of a four-year high school education in the United States, taxpayers would be on the hook for approximately $24 million—without any recuperation in costs by parents or relatives paying taxes into the system.

Meanwhile, the difference in the cost of a college education for a student who qualifies as “in-state” as opposed to the cost for a strictly foreign-based student is staggering. A recent Forbes article, for example, points out that the difference in tuition at Arizona State University for the 2016–2017 academic year was over $18,000.REF Again, if even 1 percent of U.S.-born children of birth tourists take advantage of these lower rates at public universities without having ever paid into the tax system—the whole justification for lower “in-state” tuition—the cost to U.S. taxpayers will be in the tens of millions of dollars. That cost also comes without the promise that the student will remain in the United States after receiving such dramatically reduced education costs.REF

Chain Migration. Chain migration—the phenomenon of immigrants residing in the U.S. sponsoring the immigration of family members, who can then sponsor the immigration of other family members in an essentially perpetual “chain” of sponsorship—is the biggest source of legal immigration in the United States.REF

This means that our national policy of who may and may not permanently enter the United States is based largely on the desires of a select group of naturalized citizens, without taking into account the needs or desires of the country writ large. Chain migration also contributes to the aging of the immigration stream, as 24 percent more “family migrants” today are over the age of 50, compared to family migrants in the early 1980s.REF Research into the precise fiscal impacts of chain migration is scarce, but at least one recent report concluded: “[A]t a minimum it is fair to say that…new realities…demand a review of whether a growing inflow of older immigrants is either sustainable or helpful to our country.”REF

Universal birthright citizenship compounds this problem by creating hundreds of thousands of new citizens with significant ties to other countries, who can later sponsor hundreds of thousands of relatives for lawful permanent residence—including, in some circumstances, the illegal immigrant parents themselves.REF Under this framework, those who successfully manage to break U.S. laws and cheat the immigration system stand to benefit substantially from their illegal actions.

C. Universal Birthright Citizenship Raises Serious National Security Concerns.

The United States must seriously consider how its current birthright citizenship policy risks exploitation by hostile nations. This is particularly true in light of the rapidly increasing number of foreign nationals giving birth on U.S. soil without any intention or legal ability to remain domiciled in the country or otherwise have their presumptively U.S.-citizen children retain meaningful ties with the American people.

There is little dispute that countries like China and Russia routinely attempt to undermine U.S. elections, influence public opinion, and engage in acts of political or economic espionage against the United States.REF China, in particular, targets and uses Chinese-born naturalized U.S. citizens who gained access to sensitive—and sometimes highly classified—information.REF This is even more concerning in light of evidence uncovered in recent indictments regarding birthright citizenship that indicates that birth tourism companies cater to mid-level Chinese government officials and advertise “priority access to U.S. government jobs” as a major benefit of U.S. citizenship for their children.REF Moreover, the growing number of Chinese-raised U.S. citizens who will soon enjoy unfettered access to the U.S. university system could present serious national security problems given recent Chinese attempts to use naturalized U.S. citizen college students of Chinese descent to conduct acts of espionage.REF

As the United States has sought to increase restrictions on the 350,000 or so Chinese nationals admitted to U.S. universities every year, it is hardly surprising that China would seek to exploit the nation’s birthright citizenship policies to accomplish the same espionage goals.REF Certainly, this scheme is even riper for abuse when we treat as citizens individuals who have no meaningful connection to the United States and who are raised in China as Chinese nationals, allowing them to freely return to the United States at any point to vote, enlist in the military, or work for the United States government.

Bestowing citizenship on large numbers of individuals so strongly susceptible to divided loyalties—or even complete disloyalty—is dangerous. Even at current rates of birth tourism growth, within two decades there will likely be over 1 million Chinese-raised U.S. citizens with the right to vote in U.S. elections, serve in the U.S. military, hold public office, and work for the government. Certainly, many of the birth tourist children who return to live in the United States may ultimately do so in good faith and for the same reasons millions of immigrants continue to flock to the world’s beacon of liberty: to fully invest in and become part of a free, prosperous, and democratic society. But if Russia quite successfully created fictitious U.S. citizens and mimicked Americans on social media, how much damage could the Kremlin do with even a few hundred “bona fide” American citizens who spent their formative years being instilled with Russian patriotism and forming intense relationships with the Russian people?REF Similarly, if China has seen success in recruiting and using naturalized U.S. citizens or Chinese nationals, how much more dangerous would its operations be with access to hundreds of thousands of individuals who, for all intents and purposes, view themselves as loyal Chinese citizens?

This is not to suggest that all dual nationals, naturalized citizens, or U.S. citizens who spent significant parts of their childhood living abroad are ipso facto of suspect or divided loyalty. It is certainly not to suggest that the United States repeat the egregious and unconstitutional errors of World War II and categorically view with suspicion U.S. citizens of a particular ethnic background or whose families immigrated to the United States from a particular country.REF It is simply to point out that the nation’s current policy of universally granting birthright citizenship to individuals who lack any meaningful ties to the United States provides substantial opportunities for abuse by motivated enemies.REF

Again, the problem is not just that these U.S. citizen children retain dual nationality or have parents who are citizens of a particular nation. The problem is that they are largely raised subject to the complete jurisdiction and control of another sovereign power and are completely integrated as part of the people of a foreign nation without any significant ties to the United States. It is very difficult to understand how these individuals, having failed to spend any amount of their lives becoming part of the American community, could view themselves as “American” in any meaningful way. After all, we would not expect a child raised in the United States as a United States citizen to view himself or herself as fundamentally anything but an American, and the same reasoning would appear applicable to any child raised in any other foreign country as a citizen of that country. Despite this reality, the United States government currently recognizes these individuals as citizens and imbues them with the full array of corresponding rights and privileges.

Whereas naturalized citizens are required to embed themselves in American society via permanent domicile in the United States and swear an oath of allegiance renouncing all “fidelity to any foreign…state or sovereignty,” these children of birth tourists are permitted to spend years—sometimes decades—under an allegiance to foreign powers before ever again setting foot on U.S. soil.REF

Moreover, the Supreme Court over the past 60 years has made it almost impossible in practice for a person to be stripped of his or her U.S. citizenship through even the most overt acts of allegiance to a foreign sovereign.REF The individual in question must not only commit “an expatriating act,” but must also be proved to have intended to relinquish U.S. citizenship by committing that act. Because the practical ability to strip citizenship from those who willingly subject themselves to the complete jurisdiction of foreign powers is now almost nonexistent, it is vital that U.S. birthright citizenship policy not encourage the creation of such situations in the first place.

A final consideration for national security concerns related to universal birthright citizenship is the growth of international terrorist organizations and the ways in which such organizations may similarly exploit the policy for purposes of long-term terrorism plans. Consider the case of Yaser Esam Hamdi, who was born in Baton Rouge, Louisiana, to Saudi Arabian nationals living temporarily in the United States as the result of a work visa issued to Hamdi’s father.REF The family returned to Saudi Arabia when Hamdi was a toddler, and Hamdi did not return to the United States for the next 20 years. As the child of Saudi Arabian citizens, Hamdi was himself a Saudi Arabian citizen. He maintained no ties with the United States. As an adult, Hamdi traveled to Afghanistan, joined the Taliban, and took up arms against the Kurdish Northern Alliance—ultimately fighting against U.S. forces after the 2001 invasion.

In late 2001, Hamdi—armed with an AK-47—surrendered to Northern Alliance forces during a battle near Konduz.REF He was transferred to a military prison and interrogated by a U.S. counter-terrorism team, which determined Hamdi was an enemy combatant. He was then transferred to the U.S. Naval base in Guantanamo Bay, Cuba. However, U.S. officials learned that Hamdi was born in Louisiana and raised the issue that this made him a U.S. citizen, so he was transferred to a military detention center in Norfolk, Virginia. Hamdi had no tie to the U.S. except the accident of his birth and, according to his attorney, “always thought of himself as a Saudi citizen.”REF Yet despite having taken up arms with Taliban forces against the United States and its allies, Hamdi was treated in court as a United States citizen, entitled to all of the due-process protections of the Constitution. This, certainly, was not the intention of the Framers and ratifiers of the Fourteenth Amendment, writing on the heels of a bloody Civil War to save the Union. More importantly, the Hamdi case underscores the possibility of disastrous consequences that can develop as the result of an unnecessarily broad birthright citizenship policy.

Citizen status can also be used to bypass the Student and Exchange Visitor Information System, which helps ensure that “those who seek to harm our nation are excluded from entering” on student visas, and “provides a mechanism for student and exchange visitor status violators to be identified so that appropriate enforcement action is taken.”REF This is particularly concerning given recent incidents of foreign nationals arriving in the United States on student visas, only to use their United States residency as a cover for terrorist plots.REF

II. What the Chief Executive Can—and Cannot—Do Regarding Birthright Citizenship Policy

Article I of the U.S. Constitution vests significant powers in Congress regarding immigration and foreign affairs, including the power to establish a uniform rule of naturalization, to regulate foreign commerce, to prohibit the migration and importation of persons, and to make all laws necessary and proper for carrying out those powers. The Constitution does not expressly vest the President with powers regarding immigration—but the Supreme Court has long held that Congress may delegate policymaking powers to the executive branch through statutes that provide an intelligible principle to sufficiently guide the exercise of discretion.REF Congressional delegation of policymaking power gives the executive branch significant authority in the realm of immigration, particularly because of the Supreme Court’s adoption of the so-called plenary power doctrine.

Under this doctrine, the federal courts will generally decline to review immigration policies even when they facially classify individuals based on nationality, race, gender, or other protected statuses.REF It is not at all clear, however, that the Court would apply the plenary doctrine to questions regarding congressional or executive branch interpretations of the Citizenship Clause, as citizenship by birth is not a matter of immigration or naturalization policy, but of constitutional right. Given that the plenary power doctrine was developed and strengthened during the same period in which the Court nevertheless delved deeply into the parameters of birthright citizenship in United States v. Wong Kim Ark, it should be presumed that the modern Court—which has worked to limit and even erode the doctrine—will likely address the question on the merits should an appropriate case come before it.REF

Irrespective of the Court’s hypothetical answer to whether either branch of government can adopt a narrower interpretation of the Fourteenth Amendment, there exists a separate legal and policy-based question of how much discretion the President has in interpreting the statutes he must enforce. This question is even more complicated when the interpretation of a statute, as here, requires an interpretation of the Constitution. The executive branch clearly plays a role in constitutional and statutory interpretation, insofar as that interpretation is necessary to carrying out the executive function: Agencies can only execute the laws or develop authorized policies if they first determine what the law actually is and what policies they are authorized to develop.REF

Certainly, this interpretive function should be done in a good faith effort to execute laws in a manner consistent with Congressional intent. Where it is clear that particular statutes have a particular meaning that applies in a given context, the executive branch should not seek to undermine Congress by enforcing laws in an intentionally contrary manner. However, the fact that various secretaries of state have, even after the ratification of the Fourteenth Amendment, held a number of differing opinions about the confines of birthright citizenship and have directed executive branch officials to act accordingly shows that this has traditionally been within the prerogative of the executive branch.REF

It was, indeed, the executive branch under President Franklin D. Roosevelt that spearheaded efforts to make the statutory definition of citizenship more ambiguous. The statutory definition of “citizen” found in the Civil Rights Act of 1866 co-existed for over 70 years with the constitutional definition of “citizen” found in the Fourteenth Amendment.REF The earliest understandings of the federal courts and constitutional law scholars were that these two definitions either worked together as two explanations of the same principle—or were at the very least presumptively compatible with each other.REF Even post–Wong Kim Ark, legal scholars justified narrow interpretations of the Supreme Court’s holding on the basis that the statutory definition of citizen still existed and informed their understanding of the limits to which the Court could have adopted principles of jus soli.REF

This changed with the passage of the Nationality Act of 1940, which explicitly repealed the language of the Civil Rights Act as codified in Section 1992 of the Revised Statutes of the United States and replaced it with a definition mirroring that found in the Fourteenth Amendment.REF The Nationality Act was the result of years of work by numerous executive branch officials and agencies to reform and clarify the myriad U.S. immigration and nationality laws. It culminated in the release of a “Draft Nationality Code” and explanatory report, with the Draft Code largely forming the body of the Nationality Act as introduced in Congress.REF

Both the commentary in the report and the congressional testimony of executive branch officials indicate that the Roosevelt Administration held a broad interpretation of the Supreme Court’s holding in Wong Kim Ark. While they considered the citizenship of U.S.-born children of non-resident aliens to be a serious national security problem, they believed that Wong Kim Ark essentially forced the U.S. government to recognize them as citizens.REF It is hardly surprising that the Draft Nationality Code reflected this view, as its principal author—Richard W. Flournoy—authored a Yale Law Review article in 1923 expressing profound disagreement with preeminent international law scholars who held a more limited view of Wong Kim Ark as applied to the U.S.-born children of non-domiciled aliens.REF

It is not at all clear, however, that this executive branch view of the statutory definition was adopted by the Congress that actually passed the Nationality Act.REF Nor is it clear that subsequent Congresses continued to utilize this language for the express purpose of adopting the Roosevelt Administration’s specific view of birthright citizenship.REF On its face, the language of the Nationality Act simply mirrors the Fourteenth Amendment, suggesting that Congress merely intended for the statutory definition of birthright citizenship to mirror whatever is mandated by the Fourteenth Amendment—nothing more restrictive, certainly, but nothing broader, either. While the executive branch’s Draft Code contained explanatory comments outlining its view that Wong Kim Ark extended mandatory birthright citizenship to all children born in the United States, Congress—the only branch constitutionally authorized to make law—did not adopt these explanatory comments into the statutory language and otherwise remained officially silent on its reasons for the change in language.

Perhaps most importantly, the meaning of the Fourteenth Amendment’s language cannot be separated from its historical relationship to the Civil Rights Act.REF Even where the language of the Civil Rights Act is repealed, it must necessarily continue to inform the meaning of the language of the Fourteenth Amendment. Absent explicit Congressional intent or instruction to the contrary, then, a statute using the language of the Fourteenth Amendment to define birthright citizenship must logically continue to be consistent with the Civil Rights Act.REF

Additionally, there is no clear alternative understanding of the statutory definition of citizenship. Where the legislative history of the Civil Rights Act and Fourteenth Amendment evidences a concerted effort by Congress to define citizenship in a very specific way for the express purpose of excluding certain individuals from birthright citizenship, the legislative history of the Nationality Act with respect to birthright citizenship is convoluted, at best. This was almost certain to be the case because the Nationality Act was a comprehensive effort to make the myriad immigration and nationality laws more cohesive and accessible, and therefore did not have the singular focus of the Fourteenth Amendment’s Citizenship Clause.REF

Indeed, the major concern of the legislation was modifying the laws governing the acquisition of nationality at birth only for those born in the unincorporated territories and in foreign countries.REF This was because of a general agreement that the “citizenship of persons born in the United States and incorporated territories is determined by the Fourteenth Amendment.”REF This again strongly suggests that the only official consensus on the statutory definition of birthright citizenship for birth on U.S. soil was that it should reflect the limits and breadth of the Fourteenth Amendment in a general sense. In a sense, Congress was not concerned with solidifying an interpretation of Wong Kim Ark and instead simply “punted” by inserting a definition that mirrored the Fourteenth Amendment.REF In so many words, Congress said, “Whatever the Fourteenth Amendment says, that’s what we say, too.”

Not only did Congress appear to have punted, but it gave every indication that it, too, viewed the U.S.-born children of non-resident aliens as being of suspect citizenship based on a suspect allegiance to the United States.REF None other than Representative Samuel Dickstein (D–NY), Chairman of the committee that spent almost a year analyzing and redrafting the language, expressed that one of the primary reasons underlying the recodification of U.S. nationality laws was that:

There are [people] who, through the accident of birth and circumstances have been born in the United States of alien parents, yet can claim citizenship and return at any time, regardless of character or political affiliations or beliefs, that are un-American and a danger to the country.

Not only these alien Americans, but others who now are able to claim citizenship, will be definitely expatriated, for example [sic] deserters from military or naval forces who have been convicted by court martial, those who serve in foreign armies, those voting in the political elections of foreign countries, and others. Children of alien parents or naturalized parents whose parents return to their native land and become naturalized or repatriated. In short, this bill would put an end to dual citizenship and relieve this country of the responsibility of those who reside in foreign lands and only claim citizenship when it serves their purpose.REF

The view of these “alien Americans” was such that Congress undertook to strip citizenship from those who already relied upon it because they relied upon it only as a means of taking advantage of the benefits without any of the connected duties—much like the children of birth tourists today. The Immigration and Nationality Act of 1952 further broadened the bases for which such individuals could be stripped of any claims of citizenship.REF

The Supreme Court has since struck down most of these provisions, making it almost impossible for the United States to strip a person of U.S. citizenship absent an affirmative act of allegiance to another sovereign that a person committed with the express purpose of relieving himself of American citizenship.REF The fact remains, however, that Congress essentially viewed these individuals as de facto owing meaningful allegiance to a foreign power (and therefore only a qualified allegiance to the United States). Further, Congress’s underlying rationale for enforcement of immigration laws was to treat such individuals as either never qualifying for or almost immediately losing their U.S. citizenship.

Ultimately, Congress can and should clarify what is meant by the statutory definition of citizenship—and whether it was intended to broaden the parameters of birthright citizenship presented by the Fourteenth Amendment and explained in Wong Kim Ark. It would be wise for Congress to re-adopt the language of the Civil Rights Act of 1866 and further clarify that the U.S.-born children of illegal and nonimmigrant aliens are still subject to foreign powers, disqualifying them from birthright citizenship because they are not “subject to the jurisdiction” of the United States for purposes of the Fourteenth Amendment.

In the meantime, because there is no one clear answer to the question of what Congress intended by revising the statutory language to reflect the language of the Fourteenth Amendment, the President may arguably enforce the statutory definition in accordance with a good faith interpretation that it is consistent with the original meaning of the Fourteenth Amendment. In other words, he could instruct relevant federal agencies to no longer issue passports or social security numbers to individuals who claim to be United States citizens but were born in the United States to illegal or nonimmigrant aliens.

In such a situation, it may be wise to also instruct these agencies to refrain from applying this definition in a retroactive manner—where individuals have previously relied on United States policy to be treated as citizens, and the United States has, in fact, treated them as citizens, they should still be entitled to the security of that presumptive citizenship. For new claims of citizenship, however, this interpretation of the statutory definition could and should be applied.

Some considerations to account for in the application of this statutory definition would be to avoid rendering individuals stateless, as well as to ensure that the application does not create generations-long classes of permanent resident non-citizens.REF Both of these scenarios could be avoided through the application of U.S. national status to those born in the United States who are not subject to its complete jurisdiction but do not otherwise obtain a foreign nationality at the time of birth.

In the case of illegal aliens, the second generation of U.S.-born illegal aliens could be considered U.S. nationals, and the third generation could be considered citizens. This would be in keeping with the premise that those who are permanently domiciled in the United States—in this case, for multiple generations—presumptively intend to stay and maintain ties equivalent to citizenship. The original “sin” of illegal immigration need not be held against subsequent generations that are both unlikely to obtain birthright citizenship in another country or to maintain meaningful allegiance to a foreign power.

Conclusion

The Citizenship Clause, as originally and properly understood, does not mandate the citizenship of individuals born in the United States to parents who owe the country only a qualified allegiance, such as by being illegally or temporarily present in the country. While Congress can certainly expand the parameters of birthright citizenship beyond those specified in the Constitution—as it has for individuals born abroad of citizen parents—it has not explicitly done so here. The current law merely repeats the language of the Fourteenth Amendment, and presumably means the same thing.

The President may, as chief executive, reasonably interpret what the law is before determining how to oversee its execution. This is particularly the case when, as here, interpreting the applicable statute involves interpreting the corresponding constitutional provision. Rendering the national citizenship policy consistent with both the original understanding of the Constitution and the plain text of the statute would significantly benefit the United States from both an economic and national security standpoint. It would also fulfill President Trump’s repeated promises to his constituents regarding his immigration policies.

Amy Swearer is Senior Legal Policy Analyst in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation.