Trump Cannot Restrict Birthright Citizenship by Presidential Edict
For 126 years, U.S. courts have recognized children born in this country as American citizens. President-elect Donald Trump plans to overturn that understanding by issuing an executive order on his first day in office.
That order, Trump claims, will “end automatic citizenship for children of illegal aliens.” But the president cannot do that on his own, and any such order is bound to provoke a constitutional argument that Trump cannot win.
The 14th Amendment says “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are “citizens of the United States.” But “under the correct interpretation of the law,” Trump argues, birthright citizenship does not apply to the children of unauthorized U.S. residents because they are not “subject to the jurisdiction” of the United States.
Trump’s interpretation of that phrase contradicts the definition that the U.S. Supreme Court embraced in 1898. That case involved a Chinese cook, Wong Kim Ark, who was born and raised in San Francisco but was denied reentry when he returned to the United States after visiting China on the grounds that he was not a U.S. citizen.
Ruling in Wong’s favor, the Supreme Court held that people are “subject to the jurisdiction” of the United States when they are bound to obey its laws. The majority reached that conclusion after considering British common law, colonial legislation, judicial rulings in England and America, and the debate preceding the 1868 ratification of the 14th Amendment.
Based on that history, the Court said, “children of diplomatic representatives” and “children of alien enemies in hostile occupation” are not U.S. citizens. It made an additional exception, which no longer applies, for children born to “members of the Indian tribes owing direct allegiance to their several tribes.”
Otherwise, the Court said, people born in the United States automatically qualify as U.S. citizens. That principle, the justices emphasized, predat
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