“On birthright citizenship, you mentioned that the Constitutional right does not include children born to diplomats. Is that exception the purpose of the proviso ‘subject to the jurisdiction thereof,’ since accredited diplomats would have immunity and thus not be subject to the jurisdiction of the US government?”
— Erik S.
Hi Erik,
Yes, the 14th Amendment’s “subject to the jurisdiction thereof” language makes limited exceptions to automatic birthright citizenship. One of those exceptions is for children of foreign diplomats.
The question raised by President Donald Trump’s executive order is whether that language also excludes the children of noncitizens targeted by his order. Judges around the country have had an easy time finding it doesn’t — “blatantly unconstitutional” is what one of the judges who ruled against Trump’s order called it.
A notable aspect of Trump’s pending Supreme Court appeal is that his administration didn’t ask the justices to approve the legality of his order. Instead, its argument was that the judges who blocked it shouldn’t have been allowed to grant nationwide injunctions, as opposed to limiting relief to the parties who brought the lawsuits against the order. The government didn’t ask the justices to declare that those judges’ legal conclusions against the order were wrong, only that they applied their findings too broadly.
That litigation strategy suggests a lack of confidence from the government about its prospects on the underlying merits of the order. That’s seemingly why it took a piecemeal approach at the high court, to try to score a procedural win, because a win on the merits would require the court to upend the long-settled precedent and practice of birthright citizenship in this country.
When we start talking about settled legal expectations, that understandably leads people to think of the court’s 2022 Dobbs decision that overturned Roe v. Wade, the landmark decision from 1973. It’s true that we can never be sure what the justices will do. Yet, birthright citizenship is more directly established and longer-standing than the now-defunct federal right to abortion. The problem with Dobbs wasn’t so much that the high court majority ignored a specific constitutional provision that explicitly declared a right to abortion; the problem was that, whatever the wisdom of Roe and its 1992 reaffirmation in Planned Parenthood v. Casey, people had arranged their lives around it. They relied on it for decades. The court majority in Dobbs didn’t care enough to keep it.
When it comes to birthright citizenship, let’s step back and look at the Constitution. The 14th Amendment’s citizenship clause says: “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.” As you noted, it’s that “subject to the jurisdiction thereof” language that makes exceptions to the general rule of automatic citizenship. That raises the question: What are the precise exceptions?
An amicus brief from constitutional and immigration scholars, filed to the justices in the pending birthright citizenship appeal, says this about the history of that right:
The jurisdictional requirement therefore exempted a narrow category of persons who, despite being born on U.S. soil, were not required to fully obey U.S. law. These included the children of foreign diplomats and hostile occupying forces, as well as the members of Indian tribes, who were viewed as members of distinct political communities. . . . All other noncitizens were subject to the jurisdiction of the United States while they were in the country. (Congress in 1924 provided for birthright citizenship for Native Americans, so that’s no longer an issue.) If and when the Supreme Court gets to the merits of Trump’s order, the administration will argue that the people targeted by it aren’t subject to U.S. jurisdiction such that they’re entitled to automatic citizenship. In its application to the justices in the pending appeal focused on nationwide injunctions, the Trump administration also addressed the merits of the order somewhat. “A substantial body of historical evidence shows that the children of temporarily present aliens or of illegal aliens similarly are not subject to the political jurisdiction of the United States,” it argued. And yet, the administration chose not to press that historical claim to a court that’s been solicitous of historical arguments that happen to align with modern right-wing politics. Instead, it focused on the nationwide injunction issue, something that a majority of the court could latch onto without having to address the underlying merits of Trump’s order in this appeal. Again, it’s difficult to read that reluctance as anything other than a lack of confidence in the administration’s merits argument. Of course, we won’t know for sure until the justices finally rule — and we still don’t know when that’ll happen — but the fact that the government isn’t clamoring for that ruling on the heart of the matter is telling. Have any questions or comments for me? Please submit them on this form for a chance to be featured in the Deadline: Legal Blog and newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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