the law

No, President Trump Can’t Strike Birthright Citizenship Out of the Constitution

A little girl holds the U.S. flag during a naturalization ceremony on July 3, 2018, in New York. Photo: BRYAN R. SMITH/AFP/Getty Images

With the Pittsburgh tragedy and the attempted assassination of Democratic figures in his rearview mirror, President Trump remains committed to changing the subject and resuming his campaign of white resentment and fear-mongering ahead of the midterm elections. Monday’s distraction was his wasteful deployment of 5,200 active troops to the U.S.-Mexico border to confront a migrant caravan that is nowhere close to it. Tuesday’s nonsense was the revelation, by way of an Axios exclusive, that he’s planning to wipe out the constitutional guarantee of birthright citizenship by executive fiat.

The contours of the executive order are unknown — and the White House may well be floating a trial balloon to gauge the level of outrage, threats of litigation, and reaction from the press and the public. By day’s end, not even Paul Ryan was onboard.

But one thing is certain: Calling for the elimination of birthright citizenship from our founding charter isn’t the expression of a fringe position within the Trump administration, or even within the broader Republican Party. The president has made his feelings about the issue clear since he was on the campaign trail, and others in the GOP field — even more moderate voices — soon fell in line. The reality remains: This has been a conservative pipe dream since at least the 1990s. That Mike Pence and Lindsey Graham quickly rose to Trump’s defense on Tuesday, the latter promising to back the president up with legislation, tells you how mainstream their position is.

Despite that history, the credulousness of the report that got the ball rolling is still striking. Though the likelihood of an actual executive order is still very much up in the air, Axios noted uncritically that litigation over the question of birthright citizenship “would force the courts to decide on a constitutional debate over the 14th Amendment.” Except that there really is no debate about the meaning of the opening clause of what I consider to be our greatest amendment — which, as constitutional history would have it, turned 150 this year, and does so much more than just granting the right of citizenship to anyone born within our borders.

The impetus behind the Reconstruction Amendments, of which the 14th is one, was that there was a subclass of citizens — namely, enslaved African-Americans born in American soil — who weren’t considered citizens under the original Constitution and had none of the privileges and immunities enjoyed by white Americans. When the Supreme Court decided Dred Scott v. Sandford, Chief Justice Roger Taney made it plain that this subhuman underclass “had no rights which the white man was bound to respect” — racist and dehumanizing language that, to this day, remains a nadir in American jurisprudence.

Dred Scott may not have caused the Civil War, but it certainly was a linchpin in a bloody campaign for equal citizenship rights that tore the nation in two and made it anew by way of an improved, more perfect Constitution. The framers of the slavery-ending, post-Civil War amendments may have made grand pronouncements about “due process” and “equal protection of the laws” in the text of the 14th Amendment, which courts have interpreted expansively. But they left no ambiguities when they wrote the amendment’s citizenship clause: “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.”

Confronted with this language and with the case of a U.S.-born child of Chinese parents, the Supreme Court explained in the seminal 1898 United States v. Wong Kim Ark decision that interpreting the 14th Amendment as denying the children of non-citizens the right of American citizenship “would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.” In other words, those children of foreigners the original Constitution treated as citizens were no different from the children to whom the reformed Constitution granted the same treatment as a birthright.

What the Trump administration has been trying to stir up since at least this past summer is a question about the meaning of “subject to the jurisdiction thereof.” Since Wong Kim Ark, the phrase has been uncontroversial, but in July, Michael Anton, a former national security adviser to the president, raised doubts about its meaning in the pages of the Washington Post, charging that those words make clear that someone must first legally reside in the United States before the amendment can grant citizenship to his or her children. Examining the historical evidence (which Anton mangled, later prompting the appending of an editor’s note atop his piece), Garrett Epps, a legal scholar at the University of Maryland, has debunked that contention, calling it “the constitutional equivalent of flat-earthism.”

And so have many others over the years, across the spectrum of political and legal thought. James Ho, who is one of the most reactionary judges Trump has appointed to the federal courts, has nonetheless written thoughtfully about the citizenship clause of the 14th Amendment, which in the past lawmakers have tried to legislate around. Surveying founding-era sources, Supreme Court precedent, and the text of the Constitution itself, Ho concluded that children of undocumented immigrants were as American as those who first settled here from distant shores. “That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers,” he wrote.

Boiled down to its basics, all “subject to the jurisdiction thereof” means is “subject to the laws of the United States.” The same rationale the Trump administration uses to bring the full weight of the law down on undocumented immigrants — who no one really doubts are subject to our draconian immigration code — covers the children who are born to them. If immigrants are to follow the law, as the government insists they should, it follows that the United States has jurisdiction over them, and their children born here are ipso facto American citizens. If the small cadre of anti-birthright truthers want a different reading, only a constitutional amendment will do. Since 1995, that’s also been the Justice Department’s official position. Will Attorney General Jeff Sessions, who is both one of Trump’s biggest anti-immigrant boosters and an avowed antagonist of lawless executive overreach, join this crusade?

In his defense of Trump’s pre-proposal (and that’s all it is, at this point) on birthright citizenship, Vice President Mike Pence said that the Supreme Court has never definitively settled whether the contested language in the 14th Amendment applies to those who entered the country illegally. But that misses the forest for the trees: There are a number of constitutional ambiguities that Americans never thought needed to be resolved until an anomaly like Trump was elected. By the same token, we don’t need the Supreme Court to tell us that the president can’t pardon himself or take bribes from foreign governments, to name two absurdities Trump has forced us to consider; we don’t need to wait for an unconstitutional stroke of his pen to know it’s beyond the pale — constitutionally, morally, or otherwise.

Debating the merits of this aberration is debating the merits of dog-whistle politics itself. It amounts to considering whether there’s room for white ethnocentrism in a constitutional regime that sought to end it for good in 1868.

Trump Can’t Cut Birthright Citizenship From the Constitution