Limiting Birthright Citizenship by Congressional Action
Republicans Must Strike While the Iron is Hot
Donald Trump has committed to getting rid of birthright citizenship for children born to illegal immigrants in the future and has stated that he would do so via an executive order[1. https://www.donaldjtrump.com/agenda47/agenda47-day-one-executive-order-ending-citizenship-for-children-of-illegals-and-outlawing-birth-tourism] (as I was near completion of this article, he reaffirmed this[2. NBC News, Full interview: Donald Trump details his plans for Day 1 and beyond in the White House https://youtu.be/b607aDHUu2I?t=1423]). Given that the GOP is set to have a trifecta (Presidency, Senate, and House), it is advisable to get legislation enacted at the first opportunity, whatever comes of promised executive orders. This article will try and set out an optimal legislative strategy for restricting birthright citizenship, proposing a legislative approach to secure a law that is defensible in court on the one hand, and on the other hand difficult for an unfriendly future administration to take executive action to nullify. I do not propose what I think is ideal[3. https://ibperry.wordpress.com/2020/11/02/a-brief-note-on-reforming-republican-democracies/] but rather what determined, aligned leadership could enact during the upcoming administration.
Many have the mistaken impression that the limitation of birthright citizenship would require a constitutional amendment, and thus many people who would desire such a thing are not making an effort to let their elected representatives know that they support this. However, the Fourteenth Amendment includes a limitation, “subject to the jurisdiction thereof,” which is fairly interpreted to not include illegal immigrants and might also reasonably be taken to permit the exclusion of some categories of those legally present (beyond diplomatic staff, who are already excluded). I believe the best legislative strategy is to pass a law (or laws) that is both prospective and relatively expansive.
There is already Supreme Court precedent against stripping citizenship after it has been granted[4. See e.g. Afroyim v. Rusk, (1967) https://supreme.justia.com/cases/federal/us/387/253/] (with limited exceptions, including some situations in which deception led to the granting of citizenship[5. See e.g. Maslenjak v. United States (2017) https://supreme.justia.com/cases/federal/us/582/16-309/#tab-opinion-3751468 In that case it would found that dishonesty about something which would not have led to disqualification for citizenship for the person concerned was not sufficient grounds for that person’s citizenship being rescinded later; while discussing the situation at bar Court provided some examples of situations where there would be sufficient grounds for rescinding citizenship. Note that, unlike Afroyim v. Rusk which claimed Congress had overstepped its constitutional authority, the court in Maslenjak v. United States overturned a particular application of a statute, though the law was itself understood to be constitutional.]); it is, therefore, better to apply law to births after the enactment of the law. On the other hand, there are a wide variety of contexts in which someone is legally present in America but with limited connection to the country other than present proximity. Since it is doubtful that, as far as distinguishing between different categories of those legally present, there is a clearer and more legally defensible demarcation point than permanent residency, it seems best to attempt to get legislation in place that excludes all categories of visa other than Green Cards from providing a right of birthright citizenship for children.
There is a Supreme Court decision that applies the Fourteenth Amendment to a non-citizen born to parents who were legally present in the United States at the time of his birth. Contrary to the impression some people have, this 1898 case, United States v. Wong Kim Ark[6. (1898) https://supreme.justia.com/cases/federal/us/169/649/#tab-opinion-1918089], does not address the question of people who are illegally present in the United States. It is true that the reasoning in the case is very broad and would include many categories of immigrants. Still, the question of someone illegally present is not considered (beyond discussion of the distinct issue of presence as part of a military occupation, which the majority opinion believed would not give a claim to birthright citizenship[7. At least some of the reasoning was specific to legal rules about an occupying power, which is a distinct issue from the question of the illegal presence of an individual person, which was not discussed.]). The Supreme Court could, without overturning the Wong Kim Ark case or any other case[8. It is true that Footnote 10 of the 1982 case Pyler v. Doe implies that the Fourteenth Amendment’s “Subject To the Jurisdiction Thereof” clause applies to illegal immigrants, (https://supreme.justia.com/cases/federal/us/457/202/#F10) but that was not what was decided in the case, and a decision upholding a ban on birthright citizenship for illegal immigrants would not need to overturn Pyler. Though overturning that case is good and probable achievable—Warren Burger’s dissent was joined by William Rehnquist, Byron White, and Sandra Day O’Connor—conservatives can fight that battle in a separate case focused the issue of public education for illegal immigrants. https://supreme.justia.com/cases/federal/us/457/202/], uphold a law which, from the date of the law’s enactment, denies birthright citizenship to children born of illegal immigrants.
Prior to the Wong Kim Ark case, an 1884 case, Elk v. Wilkins[9. 112 U.S. 94 https://supreme.justia.com/cases/federal/us/112/94/], had already addressed the relationship of the Fourteenth Amendment to one category of people legally present within the territory of the United States, members of American Indian tribes, who were not automatically considered citizens because of birth within the United States—rather the status of American Indians was left to legislation. The Court in the Wong Kim Ark case did not overturn the Elk case, rather it cited it in the course of explaining its own reasoning.
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, ‘All persons born in the United States’ by the addition ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State — both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.[10. https://supreme.justia.com/cases/federal/us/169/649/#tab-opinion-1918089]
The majority in Wong Kim Ark presented their argument as consistent with the reasoning in the prior case. Those American Indians who did not have birthright citizenship on situational or tribe-specific grounds were later, in 1924, given birthright citizenship via a comprehensive statute.[11. https://immigrationhistory.org/item/1924-indian-citizenship-act/]
It seems absurd that Congress would have the authority to decide whether to give birthright citizenship to the children of American Indians legally residing inside the United States but not to decide whether or not to grant birthright citizenship to those illegally inside the United States. It also does seem odd that Congress would have that authority for American Indians, but not have discretion to decide to, when granting foreigners admittance, exclude some categories of legal presence from birthright citizenship. In other words, this discretion is logically inherent in the powers historically exercised by Congress and recognized by the Court.
Ultimately, however, this issue does matter. Consider that if birthright citizenship was barred to children of illegal immigrants but applied to all people whose mothers were legally physically present in the United States at the time of their births, it would leave a number of routes open for a future administration to provide color of law to giving citizenship to children of parents who do not have a legal right to be in America. Imagine if a future administration grants “temporary protected status” to people who were attempting to illegally immigrate into America. It would leave the door open to birth tourism (something Trump has also promised to eliminate[12. https://www.donaldjtrump.com/agenda47/agenda47-day-one-executive-order-ending-citizenship-for-children-of-illegals-and-outlawing-birth-tourism]) as part of a broader right of citizenship for the children of foreigners who are unable or unwilling to commit to living in the United States long term. It would keep a really bad part of the status quo—that all visas to the United States are tied to permanent immigration policy via the naturalization of subsequently-born children that is facilitated by any (non-diplomatic) visa given the current application of birthright citizenship. Modern technological conditions, with rapid intercontinental air travel, makes unrestricted naturalization for all births to foreigners on our soil more likely to have significant negative side effects. Someone with little connection to the country can, on a non-immigrant visa, simply get on a plane, stay in country for a few weeks, then leave after giving birth.
To avoid these problems, it is wise to put legislation in place that limits birthright citizenship to Americans and those foreigners within the United States whose visas are actually supposed to give a right to permanent immigration. I expect that trying to include the children of non-immigrant visa holders will likely receive skepticism from some Republican congressmen and likely only be passable with very active and strong support from the White House. The thin 220-215 margin, which will be in place if Republicans win the special elections resulting from appointments, means any three Republican House members can stop a party-line bill, assuming no Democrats cross over. Likewise, any four Republican Senators will be able to block a party-line bill in the incoming Senate. However, given the recent attempt to reclassify illegal immigrants as “legally” present, the risks of “legalized” immigrants gaining a backdoor foothold in the country might be salient enough for a more aggressive closing of loopholes to get support now. Will such a law be enforced by the courts? It is unclear, but the arguments for it are reasonable enough, and the consequences of temporarily-legal-presence birthright citizenship are negative enough that it is better to risk a negative judicial decision than leave things vague. The chances of getting a favorable ruling seem better while Clarence Thomas and Samuel Alito are still on the court, so it is best for us to go ahead and take our chances. Some added risk of defeat in court is worth it in order make a serious attempt to put better guardrails up against the creation of paper citizens who have only a superficial connection to the country.
It is true that there is reasoning in the Kim Wang Ark case, which is so broad it might apply the constitutional right of birthright citizenship to everyone within the United States except American Indians, children of an occupying power, and children of ambassadors and their staff. The dissent cited several sources indicating that birthright citizenship did not at common law necessarily apply to children of people born while their parents were merely passing through a country[13. https://supreme.justia.com/cases/federal/us/169/649/#tab-opinion-1918089], the majority opinion has reasoning so broad it could apply even to such cases. It is also true that the Kim Wong Ark case says,
Congress having no power to abridge the rights conferred by the Constitution upon those who have become naturalized citizens by virtue of acts of Congress, a fortiori no act or omission of Congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the Constitution itself, without any aid of legislation. The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.[14. https://supreme.justia.com/cases/federal/us/169/649/#tab-opinion-1918089]
Yet, this reasoning is preparatory to a judgment based on a case in which (as the court described it) the parents of the person in question had been domiciled in America. Some categories of visas (along with non-visa-non-permanent-resident categories of legal presence, to which similar reasoning applies) could be excluded without overturning the judgment of the case, even if it would mean rejecting some of the reasoning or restricting its application. The majority opinion concluded with,
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.[15. https://supreme.justia.com/cases/federal/us/169/649/#tab-opinion-1918089]
By stating by statute that this now applies to those who have an immigrant visa, we can provide courts a way to apply the Fourteenth Amendment, which accepts that the amendment had application to (some) immigrants, without forcing us to accept the current system of permanent immigration via physical presence of parents at the time of birth.
The modern peacetime visa system is a continuation[16. https://www.archives.gov/research/immigration/visa-records] from World War I[17. https://history.state.gov/departmenthistory/timeline/1910-1919]. Nowadays, it is explicitly the case that some visas do give a right of permanent residence in the United States, and some do not. When Wong Kim Ark was decided, there was no such visa system[19. https://www.archives.gov/research/immigration/visa-records] and thus that court did not specifically decide the issue of whether a temporary visa necessarily included a right of birthright citizenship. Rather than wait for a constitutional amendment, it would be better to pass a law that defines foreign-parentage jus soli birthright citizenship as applying only to children of holders of immigrant visas. Because the Kim Wong Ark case dealt with a situation that it described as one of “permanent domicile” a lawyer defending the law might argue that this case’s decision, in the context of our modern peacetime visa system, applies to those visas that grant permanent residence, and not as a matter of constitutional right to non-immigrant visas. Of course, lawyers might ask for an overturning of this case but given that it took place prior to the existence of the modern visa system and claimed to address a case of “permanent domicile”, I do not think we should assume this is necessary to win in front of the Supreme Court.
As Ben Crenshaw has noted in a previous article on birthright citizenship, the majority opinion in the 1873 Slaughterhouse Cases indicated that subjects of foreign nations were not included in the Fourteenth Amendment’s promise of birthright citizenship. The majority opinion there writing of the Fourteenth Amendment stated,
It overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.[19. https://supreme.justia.com/cases/federal/us/83/36/]
There are statements within Supreme Court jurisprudence both supporting and opposing a more expansive reading of the Fourteenth Amendment on the question of the scope of the phrase “subject to the jurisdiction thereof”, but no judgment directly on the issue of the authority of Congress to limit the birthright citizenship for those whose parents are illegal immigrants or in the United States on non-resident visas.
Relevant to both how the Court should rule and how some of the current justices are likely to rule on a law defining the scope of birthright citizenship is what the original public meaning of the Fourteenth Amendment was when it was ratified. The records of the debates of the Senate over the text of the Fourteenth Amendment furnish statements which could be reasonably used by both sides of such a case. A Senator from Delaware said, “the object of this first section is simply to declare that negroes shall be citizens of the United States. There can be no other object in it, I presume, than a further extension of the legislative kindness and beneficence of Congress toward that class of people.”[20. The Congressional Globe, Page 2897, https://stafnelaw.com/wp-content/uploads/2017/08/Congressional-Debates-of-the-14th-Amendment.pdf] But a number of the senators involved in debating the current wording of the Fourteenth Amendment realized that the amendment would make major changes to the existing constitutional system. Some of the senators who were present when the text of the Fourteenth Amendment was under discussion interpreted the scope of Section 1’s wording in expansive terms. One senator from Pennsylvania expressed concern that the amendment would apply to children of Gypsies and Chinese[21. The Congressional Globe, Pages 2890-2891], and at least one other senator (representing California and himself an immigrant from Ireland) both affirmed that it would and (he appeared to imply that the number of children born to Chinese, and Gypsy, parents in the US would be very small) did not think that would be a problem[22. The Congressional Globe, Pages 2891-2892]. When discussing the effect of the amendment on American Indians, an Illinois Senator said, “What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else.”[23. The Congressional Globe, Page 2893] A senator from Indiana, concerned about the effect of the amendment’s wording on this point, said “If the Indian is bound to obey the law he is subject to the jurisdiction of the country”[24. The Congressional Globe, Page 2894]. A Michigan Senator, with ambiguous syntax, said,
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.[25. The Congressional Globe, Page 2890]
In summary, there are statements in the Senate debates about the amendment which, taken by themselves, might lead to different conclusions about its original public meaning with regard to who counts as subject to U.S. jurisdiction for birthright citizenship purposes.
Considering the disastrous unintended consequences flowing from a broad interpretation of birthright citizenship, it is prudent to go ahead and pass a law and litigate it. Make the courts rule on it—it is better to get them to rule on it faster so the act can be re-worded if the Supreme Court differentiates between different categories of non-resident visas. Legal permanent residence seems like the cleanest line to distinguish between different classes of people who are legally in the country, but perhaps the courts might employ some test that stops short of that (say, having a long-term physical residence) which would allow exclusion of some foreigners legally within the United States but not others from creating claim of birthright citizenship for their children. It is better to get such a decision quickly so that as many loopholes as possible can be closed while there is still a Republican trifecta (or, if the current Republican caucus lacks enough willing members on this issue, time to primary the opponents while the incoming executive is still in office).
Someone might object to the justice of this from an opposite direction—that the value of United States citizenship has been much diluted by mass migration, much of it illegal, and that such a fait accompli should not be allowed to stand. It is true, for example, that the 1986 amnesty was made with a promise of increased enforcement[26. Reflected in e.g. President Reagan’s Remarks at Ceremony for Immigration Reform and Control Act. November 6, 1986 https://www.youtube.com/watch?v=FvZ0QHpxmRs] which was not kept. Thus, almost three million people gained citizenship directly from the amnesty,[27. https://www.heritage.org/immigration/commentary/amnesty-any-other-name] and this is not including either the children born into the US to these people prior to or after the pardon, nor is it including people that these pardoned-criminal-citizens were subsequently able to bring over via family visas.
Given the significant breaking of public trust involved in letting all these people into the country and then, after 1986, not enforcing the law as promised, it would not be inherently unjust to apply denial of birthright citizenship retroactively to include everyone born here to those who illegally immigrated after the period to which the 1986 amnesty applied. As a matter of practical politics, it is doubtful the votes are there. Even some Republican politicians are likely to infer that part of their base includes such people. Were it passed, more people would support lawsuits to dispute it; there would be more people who would have standing than there would be for a merely prospective law. And there is already the aforenoted precedent against stripping citizenship once granted unless there was material deception on the part of the person naturalized—we can expect the courts would use some of the same reasoning to oppose retroactive reversal of birthright citizenship. If at some future point, we get a Congress in place that is willing to address the watering down of U.S. citizenship via past government laxness and misconduct; a partial remedy could be accomplished through means less likely to be struck down—such as a law funding payments for voluntary denaturalization (I am not saying that a congressional majority for that exists now, but it would probably be no more difficult to achieve in the future than a congressional majority for involuntary retroactive denial of birthright citizenship, and such an incentivized but voluntary system would be more likely to be upheld in the courts). All that is by way of suggesting an alternative for the future given the fait accompli my proposed birthright citizenship reform leaves unaddressed.
So, my recommendation is to apply denial of birthright citizenship prospectively starting from the date of enactment of the bill. Another possibility would be to first declare it via executive order and then make a subsequently-enacted bill’s date of application the date of the executive order, but any reliance on executive order weakens a key argument in favor of a federal definition limiting birthright citizenship, the Fourteenth Amendment’s closing provision for congressional enforcement.[28. https://constitution.congress.gov/constitution/amendment-14/]
Making these moves only prospective rather than retroactive may make them easier to pass—but it does add an urgency to passing them. Republicans need to get a bill passed quickly so that there is time for it to be litigated while they still have a trifecta—this likely makes victory both somewhat more likely and gives them time to pass a modified bill if the first one is struck down (though of course hopefully the courts would uphold an illegal immigrant-related provision even if non-immigrant visa limitations were struck down, it is possible the latter might be struck down on grounds which would leave room for finding a way to exclude some types of non-immigrant visas with a different bill). What follows is suggested text to accomplish these ends:
An Act to Define the Proper Subjects of Natural Born Citizenship and the Proper Enforcement of the Fourteenth Amendment
Whereas Congress has power Under Article 1 Section 8 of the Constitution “To establish an uniform Rule of Naturalization,”
Whereas Section 5 of the Fourteenth Amendment states, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Be it enacted,
1. Neither citizenship nor right of residency is gained by being born within the United States to a non-citizen parent who is illegally present within the United States.
2. Birth within the territory of the United States to a parent legally present with no visa or legally present on a non-immigrant visa is not sufficient to make one a natural born citizen and does not of itself provide a right of citizenship or of naturalization. Unless other laws, regulations, or judicial decisions extend or terminate a visa in a given case, children born in the United States to a holder of a non-immigrant visa shall be awarded a non-immigrant visa allowing them to stay in the United States for so long as at least one parent continues to hold a non-immigrant visa until the child’s eighteenth birthday. Unless other laws, regulations, or judicial decisions extend or terminate legal status in a given case, children born in the United States to a parent who has non-visa legal presence in the United States shall be awarded the same status as that parent until either that parent’s status changes or the child’s eighteenth birthday.
3. Children born within the United States who have at least one parent who is either a citizen or immigrant visa holder shall be counted as natural born citizens regardless of the legal, visa, or citizenship status of the other parent.
4. Nothing in this legislation shall be considered to alter the legal rights of those born abroad with one or two American citizen parents.
5. If any provision in this bill is found unconstitutional the remaining portions of the bill shall remain in effect.
If the courts were to strike down all or part of such a bill, this would provide an additional reason to drastically limit non-immigrant visas.
We need wins that future administrations cannot easily reverse. Now, we hope there will never again be an administration as left-wing as the recent Democrat presidencies; however, taking care to achieve wins that cannot be easily reversed is not at odds with winning future presidential elections. It may even make future presidential elections easier to win insofar as Democrats will be less confident in giving their full attention to retaking the presidency if they know that will not be enough to undo Republican actions. Establishing policy victories that cannot be undone by a future Democrat president may make such a president less likely not only due to the energizing effect this has on the Republican base but also due to the pressure it puts on Democrats to distribute their efforts between the Presidency, House, and Senate (which may also demoralize some of them).
Let’s use the rare Republican trifecta to get victories that cannot easily be undone. I am happy that Trump wants to deal with this issue and would rather he try an executive order than nothing at all, but I am worried that an executive order might be ruled against by the courts and such a ruling might then be referenced as precedent for striking down future legislation; I think it is a better strategy to confront the courts with an actual law (which could appeal to the closing provision of the Fourteenth Amendment for its authority) from the start.
Now, perhaps it would be better to split these provisions apart and get the illegal immigrant part passed immediately as a stand-alone law (any Republican who does not support it should be primaried), with the provisions distinguishing between different categories of those legally present tied to some other issue if necessary to get them passed.
While moderate immigration could, in some contexts, help keep communities from getting stagnant while allowing local cultural memory to continue as some new people are integrated into it, mass immigration is weakening cultural memory[29. Though I might differ with him some on ideal policy, I share many of the concerns articulated by Stephen Wolfe in his article here, The Virtue of Hospitality: Welcoming Strangers with Wisdom, https://americanreformer.org/2023/06/the-virtue-of-hospitality/]. People have been moving to the USA faster than they can learn American culture—particularly when we consider American culture at a deeper level than pop-culture references[30. I share some of the concerns articled in this discussion by Lafayette Lee & Darryl Cooper, The American Nation: Ethnogenesis, https://im1776.com/2024/01/18/the-american-nation-ethnogenesis/ “They were solid Americans, but they weren’t really Minnesotans. They were able to assimilate into the mass culture – that is, the liberal culture of New York City and Hollywood – but even the most Americanized among them had not assimilated into any local culture. Mass culture, however, cannot sustain a personal or a community identity, so they did what anyone would do, and continued to identify primarily with their ethnic group. The combination of American liberalism and ethnic identification manufactures the kind of people we see disrupting college campuses, chanting Hamas slogans, and defacing statues of American heroes.”]. In many places, immigrants are swamping local identity more than they are being woven into it. The current way birthright citizenship is practiced has helped lead to this situation as massive changes to the composition of the body politic are made without a vote. I do not think immigration restrictionism is always the answer, and different countries have different political systems which result in immigration having different effects (I recently had the opportunity to live in the United Arab Emirates where economic immigration is much more partitioned from naturalization than it is in the United States of America). Limiting birthright citizenship would put the United States on a better footing to deliberatively choose what sort of immigration policy to pursue rather than for deep-rooted Americans to be presented with fait accompli after fait accompli.
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