Why Trump can't order an end to birthright citizenship
On Oct. 30, Donald Trump announced that he would end the "ridiculous" birthright citizenship for children born of noncitizens on U.S. soil. To achieve that end, Trump stated that he would issue an Executive Order, effectively overriding the Fourteenth Amendment by Presidential fiat.
While surely a hollow political stunt ahead of the midterm elections, Trump's boast has given many pause. Surely, a president cannot unilaterally modify the Constitution via pen stroke, can he?
The clear answer is no and here is why.
When interpreting the Constitution, scholars analyze text, history and judicial precedent. A brief look at each confirms that the Citizenship Clause applies to U.S. born children of aliens, including undocumented aliens.
The Fourteenth Amendment reads (in its relevant portion):
"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States …"
The text is neither murky nor ambiguous, stating that "ALL PERSONS born … in the U.S. … are … citizens." No exceptions mentioned, none implied. Next and most relevant to this debate, is the clause "subject to the jurisdiction thereof …" The meaning here is also clear. "Jurisdiction" is simply "to be subject to the sovereign authority of the U.S. government" (i.e. laws and regulations). Thus, all persons born on U.S. soil and subject to U.S. sovereign authority are citizens of this nation.
Furthermore, history confirms that birthright citizenship applies to anyone U.S. born. The Fourteenth Amendment was a legislative response to the infamous 1857 Dred Scott case where the Supreme Court denied birthright citizenship to the descendants of slaves. When interpreting the Constitution, one deciphers the original intent of the drafters. Here, congressional intent is clear. At the ratification debates, Senator Howard's introduction to the Amendment stated that it, " … will not … include [aliens] who belong to the families of ambassadors or foreign ministers … but will include every other class of persons." The plain language spells out to whom birthright citizenship would not apply (children of foreign ambassadors) as well as to whom it would apply (every other class of persons), thus confirming the drafters' broad intent.
Third, interpretation of the Citizenship Clause is bolstered by judicial precedent. In the 1898 case United States v. Wong Kim Ark, the High Court held that children born to Chinese laborers on U.S. soil were indeed U.S. citizens.
According to Fifth Circuit Court of Appeals Judge James Ho, a Trump nominee, the proposed Executive Order "reaches all aliens regardless of immigration status." While Wong Kim Ark did not specifically address the question of illegal aliens, the 1982 case of Plyler v. Doe puts to rest any question concerning the scope of the Citizenship Clause.
In Plyler, the court held that Texas could not withhold funds for public education of undocumented alien children. In that case, all nine justices agreed that the Fourteenth Amendment protects legal and illegal aliens alike … precisely because illegal aliens are 'subject to the jurisdiction' of the U.S., no less than legal aliens and U.S. citizens," according to Ho.
Taken in tandem, the two cases establish judicial precedent interpreting birthright citizenship to pertain to any person born on U.S. soil, regardless of immigration status.
The text, history and judicial precedent all confirm that children of undocumented aliens enjoy the rights and privileges of citizenship. Any change to the Constitution requires a new amendment passed by a two-thirds majority in Congress and ratification by three-quarters of the States -- an incredibly unlikely scenario.
The United States is a constitutional republic consisting of three, co-equal branches of government. No branch may simply amend the constitution at will. This union was formed to cast off the rule of kings. At the close of the Constitutional Convention of 1787, Benjamin Franklin was asked, "Well, Doctor, what have we got -- a Republic or a Monarchy?" Franklin replied, "A Republic, if you can keep it."
We propose we keep it.
Joseph C. Alfe, who works at the Vrdolyak Law Group in Chicago, and Grant D. Talabay are attorneys and members of the board of directors of the Chicago Lawyer Chapter of the American Constitution Society.