OPINION:
On Monday, Jan. 20, President Trump signed an executive order that denied “birthright citizenship” under the U.S. Constitution’s 14th Amendment to individuals born in the United States to alien parents whose U.S. presence is illegal or temporary (e.g., alien tourists).
Three days later, U.S. District Judge John Coughenour denounced the order as “blatantly unconstitutional” and issued a two-week restraining order. However, for the reasons outlined in Yale Law School professor Peter H. Schuck’s 1985 treatise “Citizenship Without Consent,” the opposite is true, i.e., the president’s order is “blatantly constitutional.”
The 14th Amendment 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.”
Thus, whether a child “born” in the United States is a 14th Amendment citizen depends on whether the child is “subject to the jurisdiction” of the United States at birth. In 1884, the Supreme Court interpreted “subject to the jurisdiction” of the United States to mean that no other nation had a stronger claim to the child’s allegiance, holding in the case of Elk v. Wilkins that 14th Amendment citizenship did not extend to American-born members of Indian tribes, whose allegiance at birth to their parents’ tribes was recognized under U.S. law.
Accordingly, as for the U.S.-born children of aliens who are temporarily or unlawfully resident in the United States, the issue is whether the alien’s own country has a claim to the child’s allegiance that impairs the “completeness” of the child’s U.S. allegiance.
The United States, like almost every other nation on earth, treats as a citizen of our country any child born to a U.S. citizen parent, even if the parent is residing outside the United States when the child is born. However, the United States recognizes the foreign citizenship of a child born in the United States to alien parents.
The Fourteenth Amendment empowers Congress to enforce its provisions by enactment of legislation.
The power to enforce a law is accompanied by the authority to interpret that law. Therefore, if an act of Congress denies 14th Amendment citizenship to the American-born offspring of foreign citizens who are temporarily or illegally in the United States because the parents’ country has a claim to the offspring’s allegiance that impairs the completeness of their allegiance to the United States, the Supreme Court is unlikely to substitute its own judgment for that of Congress.
Although the Supreme Court held in 1898 U.S. v. Wong Kim Ark that American-born children of aliens who “have a permanent domicile and residence” in the United States are 14th Amendment citizens, the court has never extended this ruling to the American-born offspring of aliens whose U.S. presence is temporary or illegal.
Advocates of automatic citizenship for the American-born offspring of aliens who are not lawful permanent residents ask whether it is fair to deny the benefits of citizenship to a child who is not responsible for where he or she is born. However, if the offspring are entitled to citizenship in their parents’ country, their status is not better or worse than that of their foreign-born siblings. Moreover, when the U.S. determines that a person is a citizen, it imposes obligations and confers benefits. Consider, for example, a boy who was born in the United States while his mother was attending college here but who soon returned with his mother to her native country.
If the 14th Amendment conferred citizenship on the young man, he could later be drafted by the U.S. government to fight in a war against his mother’s country. Would anyone consider that to be a fair consequence?
• William Waddington Chip, Esq., served as senior counselor to the U.S. secretary of homeland security under the Trump administration from 2020-2021.
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