“Why are you ignoring the intent of the 14th Amendment, which was to give citizenship to freed slaves and their progeny? Jurisdiction means allegiance to a country, which illegal aliens do not have.”
— Brian Jones
Hi Brian,
It’s true that the 14th Amendment repudiated the infamous Dred Scott ruling, which had denied citizenship to people of African descent. But it doesn’t follow from that premise to say that U.S.-born babies today aren’t citizens because their parents were here unlawfully. To the contrary, the amendment has long been understood to grant citizenship based on the geographical fact of being born here, not based on any extra allegiance factor or parentage.
Basing birthright citizenship on allegiance would have weird implications for the very thing you highlight: addressing the sin of slavery. For what allegiance did people owe the country that forced them into bondage — the country that didn’t even treat them as people? Taking another example from the era that sparked the 14th Amendment, what about the Confederates who rebelled against the United States — did they demonstrate allegiance?
It’s not only historical examples but modern ones, too, that make the untenable allegiance theory even less workable. What about dual citizens? What about lawful permanent residents? These and other problems would abound under an allegiance regime.
Such issues will only come to pass if the Supreme Court ultimately decides to go against the weight of history. As a brief from constitutional and immigration scholars put it in the pending high court appeal, the 14th Amendment’s backers at the time embraced the long-standing principle that “birth created allegiance,” regardless of parental status. If you’re born here, you’re a citizen.
Yet, it’s important to understand the argument behind your statement — “Jurisdiction means allegiance to a country which illegal aliens do not have” — because that’s basically what the administration and its supporters argue in defense of President Donald Trump’s executive order. (I should note that Trump’s order also seeks to exclude babies whose mothers are lawfully but only temporarily present, like on a visa, which further weakens, or at least further complicates, the allegiance argument.)
We’re still awaiting the Supreme Court’s ruling following the May 15 hearing, at which the government focused not on the argument you raise but on a procedural complaint: that the judges who blocked Trump’s order shouldn’t have been allowed to do so on a nationwide basis. The government didn’t ask the justices to say that those judges were incorrect in rejecting Trump’s order. This piecemeal strategy suggests the administration thinks the justices would reject its underlying argument on the merits of the order. But it’s still important to understand the merits argument, so let’s get into it.
As a refresher, 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.” It’s that “subject to the jurisdiction thereof” language through which Trump seeks to smuggle an allegiance requirement. But that language only serves to make limited exceptions to birthright citizenship — today, it basically serves as an exception for children of foreign diplomats, so not much of an exception for practical purposes. Being “subject” to U.S. jurisdiction means being subject to U.S. law. The clause doesn’t mention allegiance.
That didn’t stop the administration from trying to upend the settled view. “The original meaning of the Citizenship Clause extended citizenship to the children of former slaves, not to people who are unlawfully or temporarily present in the United States,” is how Solicitor General John Sauer began his rebuttal at the end of the hearing, putting in a last-ditch fighting word for the order that several justices had effectively deemed legally unserious. “If I were in your shoes, there is no way I’d approach the Supreme Court with this case,” Justice Elena Kagan, a former solicitor general herself, had told Sauer earlier.
That’s probably because the Supreme Court seemingly settled the matter more than a century ago. In its 1898 ruling in Wong Kim Ark, the court rejected the notion that a person born here could be denied citizenship because his parents owed allegiance to China. In doing so, the court noted that the 14th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory[.]” There are other ways that the Trump administration tries to distinguish the Wong Kim Ark precedent, but the bottom line is that the court has reaffirmed this understanding of birthright citizenship over the years. That’s how lower court judges around the country quickly and easily rejected Trump’s order, and that’s likely why his administration didn’t directly challenge the substance of those judges’ rulings at the high court. By focusing on the nationwide injunction issue in the pending appeal, the administration stands a chance at winning a procedural battle, without requiring the court to answer the underlying merits of the citizenship question; that litigation strategy carries the added benefit of potentially curbing all sorts of injunctions against the government in Trump’s second term, which has been dominated by executive actions that judges have speedily smacked down. We’re still waiting for the justices to rule in the appeal, and they might not address the merits of the underlying order at all and might only answer the procedural injunction question (which, to be sure, carries important consequences in all manner of cases going forward, if the justices make it harder for people to challenge illegal executive actions). The government admits that its new view on the merits of the issue goes against the executive branch’s previously established understanding. “During the 20th century,” it said in its Supreme Court application ahead of the hearing, “the Executive Branch adopted the incorrect position that the Citizenship Clause extended birthright citizenship to almost everyone born in the United States — even children of illegal aliens or temporarily present aliens.” The policy of “near-universal birthright citizenship,” it went on, “has created strong incentives for illegal immigration,” leading to “birth tourism” in which “expecting mothers travel to the United States to give birth and secure U.S. citizenship for their children.” That’s an understandable political explanation for why the Trump administration wants to end birthright citizenship. But that policy preference doesn’t double as a legal argument, nor does it strengthen the actual legal argument put forth by the administration. The legal issue is the meaning of the 14th Amendment as written, and the century-plus precedent reaffirming broad birthright citizenship, not some imagined version of the amendment concocted to match the administration’s policy view. Of course, we know this court is willing to reverse precedent. But on top of the serious problems with Trump’s merits argument, I again note that if the government were confident in that argument, it might have been eager to make it to the justices as soon as possible. Instead, it appears to be attempting to delay a final decision on the issue. The administration has been aggressive in making its arguments across a series of other cases — and yet, for some reason, it’s not eager to hear what the high court thinks about birthright citizenship. 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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