Every discussion of Donald Trump’s purported plan to end birthright citizenship via executive order should begin with one simple fact: He can’t. There is no plausible argument that the president can strip American citizenship from children born to unauthorized immigrants on U.S. soil—unilaterally, or with the help of Congress. As the Supreme Court has repeatedly held, the 14th Amendment confers citizenship to these children, a constitutional guarantee that no executive order or federal statute may revoke. Trump’s claims to the contrary amount to nothing more than xenophobic base-stoking, a desperate effort to galvanize Republican voters one week before the midterm elections.
Because the argument for rescinding birthright citizenship is so pathetic, so obviously rooted in a willful misreading of the Constitution, it is tempting to ignore Trump’s remarks altogether. But we cannot, because a cadre of racists on the academic right continues to peddle the nonsensical claim that it is possible to create a permanent underclass of noncitizens via presidential decree or legislative action. This campaign will fail in the courts. It is, however, worth debunking its central premise, if only to reveal how mendacious and intellectually bankrupt the case against birthright citizenship really is.
Start with the text of the 14th Amendment, whose first sentence declares: “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.” This clause, like much of the amendment, was designed to overrule the Supreme Court’s odious 1857 decision in Dred Scott, which found that black people could not be American citizens. Dred Scott marked a sea change in constitutional law: For decades, the Supreme Court had recognized birthright citizenship, also known as jus soli, calling it a “settled” matter. The Dred Scott court departed from this rule in starkly racist terms, dismissing blacks as an “inferior order” with “no rights which the white man was bound to respect.”
As Chief Justice John Roberts has written, Dred Scott was overturned “on the battlefields of the Civil War and by constitutional amendment after Appomattox.” The Framers of the 14th Amendment intended to elevate birthright citizenship to a constitutional command so that no future Congress, court, or president could abolish it. Their chief aim, to be sure, was to ensure that all newly freed slaves could claim citizenship. But in 1898, the Supreme Court ruled that the amendment also extended citizenship to individuals born in the United States to noncitizen parents. Although the case, United States v. Wong Kim Ark, dealt with the child of authorized immigrants, the court’s sweeping language encompassed virtually all children born here, regardless of their parents’ immigration status. (More on the limited exceptions in a moment.) The Supreme Court confirmed in 1982 and 1985 that the children of unauthorized immigrants receive birthright citizenship.
Because the text and history of the Constitution is so unambiguous, opponents of birthright citizenship base their claim on a lie. They assert that a single phrase, “subject to the jurisdiction thereof,” excludes the children of noncitizens from jus soli. To do so, they warp the plain meaning of these five words and manipulate the historical record.
First, the words themselves. As Judge James Ho of the 5th U.S. Circuit Court of Appeals—a Trump appointee—has explained, there is no secret significance to this phrase. To be “subject to the jurisdiction” of the United States is merely to be subject to the authority of the U.S. government. Almost all aliens, whether they reside here legally or not, are subject to America’s laws. An immigrant may not ignore America’s laws on account of unauthorized residency, and the federal government has every right to enforce its laws against nearly anyone in the United States.
If this phrase does not exclude children of immigrants, what is its purpose? The answer is provided by the congressional debate over the 14th Amendment. Michigan Sen. Jacob Howard, a sponsor of the 1868 amendment, noted that his proposal would exclude two groups: Native Americans who lived under tribal governments or on the frontier, and the children of diplomats. Congress carved out these groups because they are not wholly “subject to the jurisdiction” of the United States; the federal government has limited ability to enforce its laws against them. Under long-standing principles of international law, diplomats and their offspring hold immunity in their host countries. Moreover, Indian tribes were recognized as “separate sovereigns” governed by treaties. The children of diplomats and tribal Indians are thus omitted from jus soli, while all other individuals born in the U.S. are “subject to [its] jurisdiction” and therefore automatic citizens.
To avoid this conclusion, anti-immigrant advocates have attempted to rewrite this history. They insist, falsely, that the Framers of the 14th Amendment spoke broadly of excluding all children of immigrants, deploying grammatical sleights of hands to bolster their readings. These lies are easy to debunk with a quick reference to the transcript of the Senate floor debate. It seems extremely unlikely that even today’s highly conservative Supreme Court would pretend to believe them.
Why, then, does this bad-faith argument keep resurfacing? Because some very dishonest conservatives promote it relentlessly, providing the intellectual scaffolding that Trump needs to float his executive order. The key culprits here are Peter H. Schuck, John Eastman, Ed Meese, and Michael Anton. Schuck and Eastman are law professors; Meese served as attorney general under Ronald Reagan; and Anton briefly served on Trump’s National Security Council.
In the 1980s, Schuck helped to popularize the anti–jus soli theory among conservative academics. Eastman and Meese authored an extraordinarily misleading 2004 amicus brief urging the Supreme Court to end birthright citizenship. Anton, meanwhile, was the author of the notorious 2016 election essay “The Flight 93 Election,” in which he warned that the “ceaseless importation of Third World foreigners” has made the electorate “less Republican, less republican, and less traditionally American with every cycle.”
Together, these men have pushed misleading op-eds designed to shift the Overton window. They seek to downgrade birthright citizenship from a constitutional requirement to an optional public policy, thereby making its abolition an acceptable GOP position. The Washington Post, the New York Times, and National Review have all been complicit in this process. So have the Federalist Society and the Heritage Foundation, which have welcomed Meese onto their boards and helped to mainstream his noxious ideas. But the main force fighting birthright citizenship today is the Claremont Institute, a nativist think tank where Eastman and Anton are senior fellows. (Justice Samuel Alito spoke at a quasi-fundraiser at Claremont in 2017.)
Republican senators like Mitch McConnell and Lindsey Graham feel comfortable attacking birthright citizenship, at least rhetorically, because of these groups’ relentless lobbying. It’s unclear whether GOP leaders actually have the will to use this topic as anything beyond propaganda. The electorate probably wouldn’t tolerate a mass effort to strip citizenship—as well as the rights and privileges it confers—from Americans because of their parents’ immigration status. Implementation would be horrific: Millions of suddenly stateless Americans would be subject to deportation, and hospitals would descend into chaos as parents fight for their newborns’ citizenship. Besides, any concrete steps in that direction would require an ugly legislative fight and a hopeless court battle at great political expense.
And yet, in 2018, the issue is on the table. Trump’s half-baked assault on jus soli may be a deluded and doomed idea, but it will nonetheless carry a potent message of white nationalism to the president’s base. Legislators and advocates have spent years laying the groundwork for this moment. With a stroke of a pen, Trump could purport to strip 18 million Americans of their citizenship, most of them racial minorities. If he does, every think tank, every media outlet, and every pundit who helped legitimize this unconstitutional scheme will deserve a share of the blame.
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