The Easy Way to Uphold Birthright Citizenship

I recently wrote that the Supreme Court likes to decide seemingly consequential constitutional cases by finding problems with the court in which they were brought, the kind of claim they represent, the kind of order the plaintiffs are seeking, or some other mechanism for ducking the constitutional issue. It’s a defensible ploy, as some who study the court argue. The power of judicial review is so potentially divisive that it should be used only when necessary.  

In that connection, consider the Court’s April 17 order setting the Citizenship Clause cases for oral argument. The argument the Court asked for is not about the constitutionality of President Donald Trump’s January 20 executive order, “Protecting the Meaning and Value of American Citizenship.” (That order claims to end birthright citizenship for the children of undocumented—and some perfectly lawful—immigrants to this country) Instead, the Court has asked for argument about whether lower courts should have granted “nationwide injunctions” blocking any application of the order until its constitutionality is settled.  

But the arguments about nationwide injunctions will wander into the constitutional questions, because the formula the Court uses to decide whether lower-court orders should be “stayed” requires the Court to assess which side is “likely” to win the case. Thus, of the government’s 43-page application to the Court, ostensibly because “universal injunctions” are bad, no fewer than eight pages are devoted to constitutional argumentation.  

What form will the “success on the merits” argument take? It would be easy to expect a lofty debate on the “original public meaning” of the Fourteenth Amendment’s proclamation that “all persons born or naturalized in the United States and subject to their jurisdiction are citizens of the United States and of the state wherein they reside”—a debate, that is, on the very heart of American citizenship and the national commitment to equality made in the wake of the Civil War.  

But a recent amicus brief filed by 208 members of Congress suggests that this case is not about the Fourteenth Amendment at all—and provides a convenient and entirely legitimate off-ramp for a Court otherwise headed for a head-on collision with the conservative legal movement. What if this case were a run-of-the-mill dispute over properly interpreting a federal statute? The Court decides such cases all the time, and they are easier and less consequential than face-offs over the very meaning of the nation’s fundamental document.  

The brief was filed in the Ninth Circuit, which, in the ordinary course of things, would be the next court to hear the challenge brought by the State of Washington and several individual plaintiffs against Trump’s birthright citizenship order. In that order, he announced that U.S. courts had misread the Citizenship Clause since at least 1898, and the correct “original public meaning” of the Clause gives the Executive Branch the authority to terminate citizenship for children born to parents who lack citizenship or permanent resident status.  

There are lots of things that can be said about this order. It is dangerous and disruptive. Worse than that, it is dead wrong—wrong about what this key provision of the Constitution means, wrong about what its drafters intended, and wrong about a president’s supposed power to change it with the stroke of a pen.  

But something else can be said: Suppose, for one moment, that Trump is right about the “original meaning” of the Clause. 

So what? 

So what, that is, because this case doesn’t call the meaning of the Fourteenth Amendment into question. That’s explained in the Members of Congress brief: Even if the government somehow convinced the Court that it is right about the “original public meaning” of the Clause in the Fourteenth Amendment, it would make no difference, because the source of law here is not the Clause but U.S. Code, Title 8 Section 1401(a),.which says, “The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof . . . ” 

Wait a minute—that’s the same language as the Constitution, right? So if the administration is right about the “original public meaning” of the Fourteenth Amendment, they win, right, and the babies lose, right?  

As Donald Trump once remarked, “Wrong!”  

That the two documents use the exact words doesn’t mean they have the same legal effect. A constitutional provision is an exercise in finding meaning out of the air; constitutional debate consists of academic concepts like “representation reinforcement,” “contemporary ratification,” and “original public meaning,” Before they are over, someone usually drags in philosophers like Charles Louis de Secondat, Baron de La Brède et de Montesquieu. This scholarship often has a kind of ectoplasmic quality, like a reality TV show in which “paranormal investigators” detect electrical currents and proclaim that the ghost of the Weeping Woman is among us. Scholars and judges in this area tend to reach back to the Founding and before (Justice Samuel Alito, in his opinion reversing Roe v. Wade, reached back to the 13th century to show that the male creators of the common law didn’t like abortion). 

But interpreting statutes is a very different enterprise. It has its own stuffy rules, some in Latin. They are called “canons” and are different from the rules of constitutional interpretation. Statutory interpretation owes little to John Locke or Thomas Hobbes. Compared to constitutional interpretation, it is concrete, a search for what specific thing or things a specific Congress wanted to accomplish. This inquiry centers around a particular moment in time—the moment the statute was adopted. And how courts have previously applied such a statute carries more, not less, weight than constitutional precedents in terms of stare decisis.  

With immigration and citizenship, the first question is always constitutional but statutory. Congress, you see, has the power granted in Article I, Section 8, cl.4 of the Constitution, “to establish an uniform rule of naturalization”—a power that, since long before the Fourteenth Amendment was dreamt of, Congress has used to grant citizenship at birth to categories of people it selected.  

The First Congress passed a law providing that children “born [to American citizens] beyond Sea, or out of the limits of the United States,” were “natural-born citizens.” In 1795, Congress changed the language to “shall be considered as citizens of the United States.” No one questioned Congress’s power to make citizens of these children; over time, the doctrine of the “plenary power” of Congress over immigration and citizenship developed. And Congress continued to exercise this power, changing “citizenship at birth” in the years before the Civil War. 

In 1866, Congress adopted the Fourteenth Amendment (it was ratified in 1868), with the Citizenship Clause as its first provision. In the 1898 case of United States v. Wong Kim Ark , the Supreme Court set forth its interpretation of the Clause, which is, until reversed (or changed by constitutional amendment), the current binding interpretation: 

The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. 

That established a constitutional limit on how tightly Congress could constrict citizenship, but it was not a limit on how far Congress could extend it to groups it chose. Plenary power, remember? Since Wong Kim Ark, Congress has used this power to make citizens of various groups not covered by the Amendment—people born in Puerto Rico (1917); citizens of Native American nations (1924); people born in the U.S. Virgin Islands (1927); in the former Panama Canal Zone (1934); in Guam (1950), among others. Again, the power to create these new citizens did not arise from the Fourteenth Amendment—it came from Congress’s plenary power over immigration and citizenship.  

This brings us to the Nationality Act of 1940, the first real immigration code in American history, and the forerunner of the INA mentioned above. Section 201(a) of the Act provided that “[t]he following shall be nationals and citizens of the United States at birth: …(a) a person born in the United States and subject to the jurisdiction thereof.”  

The Members of Congress amicus brief explains the history of this 1940 Act, enacted by the 76th Congress:  

[t]he [legislative hearings] make clear the Members’ understanding that while Congress could vary its rules granting citizenship to children born abroad, the U.S. citizenship of children born here was a given. . . . In a meeting of the full Immigration and Naturalization Committee, Congressman Curtis posed the following hypothetical: “Just one more question. We will suppose a Frenchman and his wife [came] over here from France on a visitor’s visa and 2 weeks after they arrive in this country there is to them born a child. What is the nationality of that child?” Both the witness and a second Congressman responded that the child would be an American citizen. 

In 1952, the 82nd Congress recodified immigration and citizenship law yet again. The result was the Immigration and Nationality Act of 1952, which, though frequently amended, remains the law today. As noted above, section 1401(a) uses the same exact words as the 1940 act: “The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof; …” 

Again, the amicus brief explains what Congress understood this language to mean in 1952:  

[T]he 1950 Senate Judiciary Committee report on The Immigration and Naturalization Systems of the United States explained that under existing law, “all native-born persons, except those born of parents who are in the diplomatic service of foreign states, are citizens at birth.” . . . The Congressional hearings preceding enactment of the 1952 bill reflected the same understanding. As one witness put it, if a child is born to a noncitizen held in detention on U.S. soil after seeking admission at the border, “[t]his child is, of course, a citizen of the United States. There can be no question about that.” Another witness stated that, if a noncitizen arrives in the United States as a temporary visitor, overstays, applies for suspension of deportation, and fathers children while waiting for the application to be adjudicated, those children “are, of course, American citizens.”  

The administration’s response to this language is contained in its stay application: 

the Citizenship Clause does not extend citizenship universally to everyone born in the United States. Rather, the Clause expressly excludes from birthright citizenship persons who are born in the United States but who are not “subject to the jurisdiction thereof.” The original public meaning of the term “jurisdiction” refers [sic] “political jurisdiction” (which turns on whether a person owes allegiance to, and is entitled to protection from, the United States), not regulatory jurisdiction (which turns on whether a person must follow U.S. law). 

In other words, everybody has been reading the Constitution wrong, and the 47th president will set us straight. But, in statutory terms, even if Trump were proven right about the clause, it doesn’t matter. The Congress that wrote the 1952 Act thought—rightly or wrongly, doesn’t matter—that the rule was Wong Kim Ark. And if that’s so, the statute still embodies that rule, no matter what spirits from the deep Federalist wizards have conjured up as the “original meaning” of the constitutional provision.  

A Supreme Court that wanted to address the citizenship aspect of the MAGA creed could say the following: The Government asserts that the proper scope of the Citizenship Clause is more limited than that set out in Wong Kim Ark. The President is quite free to request that Congress, using its plenary power, change the INA to conform to this view. That will be the right time for this Court to assess the alternative reading of the Clause. But until Congress passes such a statutory change, the law remains the statute Congress passed in 1952, which no president can alter unilaterally. 

In adopting this argument, the Court would be following a path laid out in a famous 1936 opinion by Justice Louis Brandeis: “If a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.” For faint-hearted justices, this would be a much better exit than any dodge about the proper court or relief.  

And it has, as Henry Kissinger, a non-lawyer, used to say, “the added advantage of being true.” 

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