Trump’s Executive Order Challenges the Birthright Citizenship Myth

by John C. Eastman

Claremont Institute scholars, including me, Ed Erler, Tom West, John Marini, and Michael Anton, President Trump’s incoming Director of Policy Planning at the State Department, have been contending for years—decades, really—that the 14th Amendment’s Citizenship Clause does not provide automatic citizenship for everyone born on U.S. soil, no matter the circumstances. Other prominent scholars, such as the late University of Texas law Professor Lino Graglia, University of Pennsylvania Professor Rogers Smith, and Yale Law Professor Emeritus Peter Schuck, have come to the same conclusion based on their own extensive scholarly research.

Claremont scholars have made the argument in books, law review articles, congressional testimony, and legal briefs. President Ronald Reagan’s Attorney General, Edwin Meese, even joined one of those briefs, in which we argued against treating enemy combatant Yaser Esam Hamdi as a citizen merely because he had been born in Baton Rouge, Louisiana, while his father was working in the U.S. on a temporary work visa. Perhaps as a result of our brief in that case, the late Justice Antonin Scalia referred to Hamdi as a “presumed citizen” in his dissenting opinion.

Our argument is straightforward. The text of the 14th Amendment contains two requirements for acquiring automatic citizenship by birth: one must be born in the United States and be subject to its jurisdiction. The proper understanding of the Citizenship Clause therefore turns on what the drafters of the amendment, and those who ratified it, meant by “subject to the jurisdiction thereof.” Was it merely a partial, temporary jurisdiction, such as applies to anyone (except for diplomats) who are subject to our laws while they are within our borders? Or does it instead apply only to those who are subject to a more complete jurisdiction, one which manifests itself as owing allegiance to the United States and not to any foreign power?

Think of it this way. Someone from Great Britain visiting the United States is subject to our laws while here, which is to say subject to our partial or territorial jurisdiction. He must drive on the right-hand side of the road rather than the left, for example. But he does not thereby owe allegiance to the United States; he is not subject to being drafted into our army; and he cannot be prosecuted for treason (as opposed to ordinary violations of law) if he takes up arms against the United States, for he has breached no oath of allegiance.

So which understanding of “subject to the jurisdiction” did the drafters of the 14th Amendment have in mind?

Happily, we don’t need to speculate, as they were asked that very question. They unambiguously stated that it meant “complete” jurisdiction, such as existed under the law at the time, the Civil Rights Act of 1866, which excluded from citizenship those born on U.S. soil who were “subject to a foreign power.”

The Supreme Court confirmed that understanding (albeit in dicta) in the first case addressing the 14th Amendment, noting in The Slaughterhouse Cases in 1872 that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” It then confirmed that understanding in the 1884 case of Elk v. Wilkins, holding that the “subject to the jurisdiction” phrase required that one be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” John Elk, the Native American claimant in the case, did not meet that requirement because, as a mem­ber of an Indian tribe at his birth, he “owed imme­diate allegiance to” his tribe and not to the United States.

Thomas Cooley, the leading treatise writer of the era, also confirmed that “subject to the jurisdiction” of the United States “meant full and complete jurisdic­tion to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”  More fundamentally, this understanding of the Citizenship Clause is the only one compatible with the consent of the governed principle articulated in the Declaration of Independence.

All of this matters a great deal because on the first day of his second term in office, President Trump issued an executive order, “Protecting the Meaning and Value of American Citizenship,” which adopted the view of the Citizenship Clause I and other Claremont scholars have espoused. It directs every department and agency of the U.S. government to accept our view henceforth as the correct interpretation of the Constitution’s Citizenship Clause.

This may be the most legally controversial executive order issued by the president on day one. And because of that, it is already being challenged in court, as 22 states have filed a lawsuit trying to block its implementation a little more than 24 hours after it was signed.

In the coming days and weeks, just as with that lawsuit, there will be lots of pundits opining that the president had no authority to issue such an order because the Constitution mandates automatic citizenship for everyone born on U.S. soil, a mandate that cannot be changed with the stroke of a president’s pen. They will contend that the Supreme Court already settled the issue more than a century ago in the 1898 case of United States v. Wong Kim Ark.

But even if Wong Kim Ark was correctly decided (as Ed Erler points out, it was not), honest scholars must acknowledge that Wong Kim Ark involved a child born to parents who were permanently domiciled in the United States, not those who were only here temporarily or illegally. Indeed, honest scholars will be forced to acknowledge that the Supreme Court has never held that the children of illegal immigrants, or even temporary lawful visitors, are constitutionally entitled to automatic citizenship merely by virtue of their birth in the United States. And they will be forced to acknowledge as true the claim in Trump’s executive order that “the Fourteenth Amendment has never been interpreted [in any formal, binding way] to extend citizenship universally to everyone born in the United States.”

Alas, when it comes to anything related to Trump, there are very few honest scholars.

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