The Ninth Circuit Court of Appeals has issued its opinion concluding that a nationwide preliminary injunction should restrict the president from enforcing his Executive Order No. 14160.  That E.O. confirms lawful denial of birthright citizenship to various children of non-citizens.  The Ninth Circuit, however, found the E.O. likely to be unconstitutional.

Congress first dealt with the subject of birthright citizenship when the 39th Congress passed the Civil Rights Act (CRA) of 1866 on April 9, 1866.  The CRA granted citizenship to “all persons born in the United States and not subject to any foreign power.”  The effect was to deny birthright citizenship to children of foreigners.  That law was a clear and intentional departure from and rejection of English common law, which generally granted birthright citizenship to all children born on English soil.  The 39th Congress then moved to strengthen the provisions of the CRA by carrying its protections into a new constitutional amendment.  To that end, the final wording of the citizenship clause of the 14th Amendment (Citizenship Clause) was proposed to the Senate only 68 days after passage of the CRA:

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.

A faction of Americans citizens and some courts assert that the Citizenship Clause of the 14th Amendment, in effect, grants automatic U.S. citizenship to any child thereafter born in the United States.  That assertion absurdly assumes that the 39th Congress intended to reverse the provisions of the CRA only 68 days after passing it.  Diligent examination of the facts reveals that assertion to be grossly in error.

First, congressional leadership on the birthright citizenship issue consisted of three legislators of extreme experience and competence, including

Second, immediately after passage of the CRA, on May 8, 1866, Rep. James Garfield (R-Ohio and future president) confirmed:

The civil rights bill is now a part of the law of the land. But every gentleman knows it will cease to be a part of the law whenever the mad moment arrives when that gentleman’s party comes into power. It is precisely for that reason that we propose to lift that great and good law above the reach of political strife, beyond the reach of the plots and machinations of any party.

Third, Sen. Trumbull, concurring with Sen. Howard, declared, as to the 14th Amendment Citizenship Clause,

That means subject to the complete jurisdiction thereof. ... Not owing allegiance to anybody else.  That is what it means. ... It cannot be said of any [person] who owes allegiance, partial allegiance if you please, to some other government that he is “subject to the jurisdiction of the United States.

Fourth, Sen. Jacob Howard, who introduced the language of the jurisdiction clause, confirmed that the language in the Citizenship Clause referring to jurisdiction was “simply declaratory of what was already the law of the land” (i.e., as provided in the CRA).

Fifth, Senator Reverdy Johnson, in debate on the 14th Amendment, confirmed,

Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign power — for that, no doubt, is the meaning of the committee who have brought the matter before us — shall be considered as citizens of the United States. (See Congressional Globe, 39th Cong., 1st Sess. 2893 [1866].)

Sixth, the Ninth Circuit and many prior court rulings improperly dismiss, demean, and misrepresent the CRA and its legislative history as “not persuasive.”  The court finds it significant that the 14th Amendment was ratified two years after passage of the CRA.  Such significance is rendered irrelevant by the facts.

First, Congress considered both laws contemporaneously (not two years apart).  The CRA became law on April 9, 1866.  The 14th Amendment received final congressional approval a mere 70 days (not two years) thereafter on June 18, 1866.  (Further action was in the hands of the states until July 9, 1868, when the required number of states had ratified the amendment.)  There was no congressional delay between laws, no congressional change of mind, and clear evidence (see above) that the two citizenship clauses had and were intended to have the same meaning.

Second, the 41st Congress (with the same leaders: Trumbull, Howard, and Bingham) reaffirmed and re-enacted the entire CRA.  (See Section 18 of the Enforcement Act of 1870.)  Congress thereby confirmed once again the principle that children of non-citizens are not entitled to birthright citizenship, both because they are subject to a foreign power and because they are not subject to full and complete U.S. jurisdiction.

There was and is no credible evidence that legislators were motivated in any way to change or reverse their positions, nor to generate a dispute with President Grant.  Grant had clearly informed Congress that he was strongly opposed to granting citizenship to temporary visitors.  (See December 6, 1869 Journal of the House of Representatives.)  Grant was fully aware of the adverse consequences of granting citizenship to those who come to the United States for the sole purpose of securing citizenship and, after securing same, “return to their native countries and reside there.”  That wisdom clearly anticipated today’s immigration concerns, especially the birth trade.  No honest person would conclude that President Grant would have consented to or signed the Enforcement Act of 1870 if such would mean the conferring of citizenship on temporary visitors and sojourners and their children born in the United States.

Seventh, the Ninth Circuit, in spite of the overwhelming contrary evidence above and in spite of Sen. Howard’s votes for the CRA and the reaffirmation thereof, gives credence to an ambiguous statement reported to have been made during 14th Amendment debate:

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 person.

Those asserting automatic birthright citizenship seize upon that language as evidence that Howard’s position was that there is only one exception to birthright citizenship for those born in the United States — namely, children of diplomats.  That argument is specious because it is contradicted by an immense record of his position and voting record and because such reports in the Congressional Globe were not verbatim and were permeated by inaccuracy.  Those inadequacies, as well as bias, were described in 2005:

Although for the first 41 congresses (85 years) there were no official government publications that recorded congressional debate, newspaper and other commercial publishers did record congressional proceedings to the extent they saw viable according to the limits on column space available, the political leanings of the editors, the limits on existing shorthand methods, and the ability to hear from the galleries or assigned floor areas.

Another source of inadequacy was the inability of the recorder to know the speaker’s intended punctuation and, thus, the speaker’s intended meaning.  Identical words of legislators can yield very different results and meanings if punctuated differently.

Finally, the Ninth Circuit Court argues that “subject to the jurisdiction of” means subject to the provisions of the laws — any laws.  It does not, but assuming that to be true solely for purposes of argument, that would nonetheless lead to the conclusion that a child born to a foreign citizen would not be entitled to birthright citizenship because the child would be subject to the operation of existing birthright citizenship law — namely, the CRA and the Enforcement Act of 1870.  In addition, as babies, newborn children of foreign citizens are not even liable (subject to) territorial civil and criminal laws, as there is no case or controversy.

The above facts and realities (some apparently unknown to the Ninth Circuit and other courts, including the infamous Wong court) stand as steady and continuing confirmation of the original intent of Congress as to birthright citizenship from the enactment of the CRA, through the enactment of the 14th Amendment, and through the enactment of the Enforcement Act of 1870.  Those laws have not been reversed, overruled, repealed, or declared unconstitutional.  For that reason, the President’s Executive Order 14160 is consistent with that intent and is not unconstitutional.

Image: Gage Skidmore via Flickr, CC BY-SA 2.0.