Donald Trump is trying to end birthright citizenship by executive order.

Donald Trump is trying to end birthright citizenship by executive order, specifically by limiting it to children born to citizens or to lawful permanent residents (i.e., green-card holders). The legal problem this encounters is twofold. First, the 14th Amendment explicitly states, “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.” (Emphasis added.) The language is broad and explicit, subject to the very narrow exception that the person born here must be “subject to the jurisdiction” of the United States (more on that in a second). Second, the Supreme Court held in United States v. Wong Kim Ark (1898) that birthright citizenship extends to the children of non-citizens; in Plyler v. Doe (1982), the Court ruled that illegal aliens are “persons” protected by the due process and equal protection clauses.

The Trump order relies on legal arguments of John Eastman, Edward Erler, and others for challenging this reading of the citizenship clause and launching a frontal assault on Wong Kim Ark:

The Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.  The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”  Consistent with this understanding, the Congress has further specified through legislation that “a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text.

Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States:  (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

One potential obstacle to overturning prior precedents is that the Court’s stare decisis test considers reliance interests — that is, if people relied on the old rule, it would be disruptive and unfair to overturn it. The Trump order tries, prudently, to sidestep this problem by applying only prospectively to children born 30 days after the order goes into effect.

I’ll doubtless revisit the legal arguments at greater length in the weeks to come, but the last time this issue was in the news in 2018, I explained at some length why Michael Anton (relying on the work of Eastman and Erler) was wrong and James Ho (now a Fifth Circuit judge) was right: In the original understanding of the citizenship clause, birthright citizenship is broad and the “subject to the jurisdiction” exception has a very narrow and specific meaning. That meaning was debated and understood at the time Congress drafted the amendment in 1866 (and I have faulted Anton and others for misquoting those debates), in which critics questioned the wisdom of extending citizenship to the children of Chinese laborers in California or Gypsies in Pennsylvania. Its meaning drew on the interpretations of prominent thinkers such as James Madison and Joseph Story in their interpretations of the natural-born citizen clause in the original Constitution, and in a legal opinion issued by Abraham Lincoln’s attorney general, Edward Bates, in 1862. To summarize:

“Subject to the jurisdiction” excluded only those who were excluded from the reach of American law — like the children of foreign diplomats and the children of sovereign Indian tribes — and does not exclude foreigners and aliens generally. . . . The reference to Indian tribes as having a distinct character is, of course, one that recurs in the text of the Constitution and much of American law on things like sovereign immunity and taxation; it is original and fundamental that Native American tribes have a different status than other populations in the United States who did not have pre-existing sovereign status on American soil. . . . Birthright citizenship was the default rule, and embodied in the Constitution’s definition of “natural born citizen” in Article II, even before the Fourteenth Amendment. . . . Laws have always assumed that anyone found in the land should be subject to the authority of the sovereign, regardless of how they got there. That rule applied unless there was some good reason — diplomatic immunity, being a lawful foreign combatant, being a member of a separately sovereign internal group like Native American tribes — to be outside the ordinary reach of the law.

Thus, Madison wrote:

It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other. [Emphasis added.]

Bates added:

I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship. [Emphasis added.]

I’ll return another day to untangle other angles on the legal debate, such as the doctrinal debates between jus soli and jus sanguinis (law of the soil versus law of the blood) as theoretical bases of citizenship and the textual distinction (which the Supreme Court has mostly trampled) between the 14th Amendment’s treatment of the rights of citizens and the (lesser, but protected) rights of all persons. And the policy debate over when we should grant birthright citizenship is a whole separate question. But the text and its history in narrowly defining the exceptions to birthright citizenship are sufficient to understand the basic and fundamental reason why Trump’s order is at odds with the Constitution.