As we have discussed over the last couple days, President Donald Trump’s pledge to end birthright citizenship by an executive order has caused a firestorm. Where President Donald Trump is wrong is to claim the ability to end birthright citizenship for undocumented individuals through an executive order. The column below in USA Today explains that Trump would lose under two out of three interpretations of the 14th Amendment. Even if he prevailed on the one possible interpretation, I remain opposed (as I was under President Barack Obama) to unilaterally ordered such major changes through executive orders. Putting aside the means, I have been surprised by the many statements that the meaning of the 14th Amendment as it relates to illegal or undocumented is absolutely unclear and unassailable. In fact, while birthright citizenship is unassailable, the scope of the amendment has long been questioned including both Democratic and Republican members long proposing legislative limits (including former Sen. Harry Reid). An argument can be made for a more limited meaning, even though the plain meaning of the Amendment (and the interpretation that I would tend to favor) would militate toward the broader meaning. Regardless, a clear and final ruling on the 14th Amendment should be welcomed — confirming whether this is a matter for legislative reform or constitutional amendment. Trump should drop the executive order approach so the focus of any judicial review is on the meaning of the 14th amendment and not the means used by the President.
Here is the column:
President Donald Trump’s announced intention to end “birthright citizenship” by executive order has pushed an already heated debate over immigration into a virtual inferno of election year politicking. At base, however, it is one of the longest standing debates in our Constitution: whether the 14th Amendment affords citizenship to anyone born on our soil regardless of their status. While neither side seems willing to admit it, there are good-faith arguments on both sides, and frankly this order could force the federal court to come to a final and clear resolution of the question.
The debate comes down to six poorly chosen words: “and subject to the jurisdictionthereof.” Those words come in the middle of an otherwise clear statement that “all persons born or naturalized in the United States … are citizens of the United States.” The words have long been argued by some to mean that the amendment applies only to citizens and legal residents who are subject fully to the jurisdiction of the United States.
Three ways to interpret those six words
The primary purpose of the amendment was to ensure that freed slaves after the Civil War would have full rights of citizenship in every state. When the amendment was drafted, various senators indicated that they intended the amendment to have the more narrow meaning.
One of the key drafters, Sen. Lyman Trumbull stated during the debates that the language confined citizenship to those “born in the United States who owe allegiance to the United States,” and excluded foreign citizens. Later, in a federal statute, Rep. John Bingham said the law embodied “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen.”
Others have argued that the clause refers to people simply being subject to federal laws, not a matter of allegiance to that authority. “Jurisdiction” refers to falling under the authority of a legal system.
There is a middle position that is also possible: The reference to “jurisdiction” left the decision of the meaning of citizenship up to Congress to decide as a policy question.
The Supreme Court offered only limited light on the subject with its decision inUnited States v. Wong Kim Ark in 1898 when it ruled 6–2 that “the 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory … including all children here born of resident aliens.”
That decision is often cited as establishing birthright citizens for everyone, but those parents were legal residents. Most advocates of the narrower meaning of the 14th Amendment agree that both citizens and legal residents are deemed “subject to the jurisdiction of the United States.”
The United States is actually in the minority of nations that recognize birthright citizenship. The rule of jus soli (or right of the soil) is only recognized in an unrestricted sense in roughly 30 countries.
The politics on this issue have ebbed and flowed in America. An estimated 7.5 percent of all births here (about 300,000 births a year) are to illegal or undocumented immigrants. Democrats joined Republicans in the past in seeking to bar unrestricted birthright citizenship. Indeed, in 1993, former Sen. Harry Reid, D-Nev., introduced legislation to limit birthright citizenship to the children of U.S. citizens and legal residents.
Two of three interpretations leave Trump out
President Trump clearly believes that this is good politics, but the question is whether there is good law to go with it. Based on the text and history of the 14th Amendment, the narrower interpretation has a solid but not definitive case.
The use of an executive order rather than legislation or a constitutional amendment adds another controversial element to the combustive mix. Regardless of the interpretation, the best approach would be to address this through congressional action. This is a matter of tremendous importance for our country that should be addressed by all of the representatives of the people, not a single unilateral act of a president.
Nonetheless, the benefit of the executive order is that it could force the courts to resolve this question with clarity and finality. Under two of the three interpretations, Trump cannot do what he described. If the Constitution adopts the unrestricted approach or leaves the matter to Congress, a unilateral action would not suffice to bar birthright citizenship. It is only if the Supreme Court adopts the narrow interpretation that such an order might succeed.
In other words, the question of means will ultimately depend on the meaning of the amendment. All roads lead to the same six words.
The meaning of those words might be answered by the newly reconstructed court with two Trump appointees — Neil Gorsuch and Brett Kavanaugh. The textual and historical arguments supporting the narrower interpretation are likely to appeal to those justices and could leave Chief Justice John Roberts as the swing vote.
In the end, a final decision on the meaning of these six words should be welcomed. The 14th Amendment was a defining moment for our country when we made the critical turn away from the scourge of slavery. It defines meaning of a citizen — the entry point for full rights and responsibilities under our Constitution.
This year is the 150th anniversary of the ratification of the 14th Amendment. That is 150 years too long to resolve the question of what constitutes a citizen of the United States.
Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter: @JonathanTurley