The Citizenship Clause, which is the first sentence of Section 1 of the Fourteenth Amendment to the Constitution, famously provides that “[a]ll 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.”
On Jan. 20, President Donald Trump issued Executive Order 14160, Section 1 of which declares that neither the Fourteenth Amendment nor the federal statute incorporating similar language (8 U.S.C. 1401(a)) confers U.S. citizenship upon two categories of persons who were “born … in the United States”:
(i) any person born to a mother who was unlawfully present in the United States on the date of birth if the father was not a United States citizen or lawful permanent resident on that date of birth; and
(ii) any person born to a mother whose presence in the United States on the date of birth was lawful but temporary (such as a mother legally in the U.S. on a student, work or tourist visa) if the father was not a U.S. citizen or lawful permanent resident on the date of birth.
Section 2 directs Executive Branch personnel not to issue or accept citizenship documents for persons in those two categories if they are born after Feb. 19, 2025. (The Executive Order is suspiciously silent about how Executive agencies are expected to treat persons who are deemed by Section 1 not to be citizens but who were born before Feb. 19.)
Trump’s interpretation of the Citizenship Clause breaks with well over a century of consensus understandings throughout the U.S. government. And it’s mistaken.
The persons described in Section 1 of the Executive Order were born in the United States and they were, at the moment of their birth, subject to U.S. jurisdiction, in the sense that they were bound to comply with U.S. law and are “in the allegiance and under the protection of the country,” U.S. v. Wong Kim Ark, 169 U.S. 649, 693 (1898), by virtue of their presence in the United States. Therefore, they fall within the plain terms of the Fourteenth Amendment. Moreover, Congress had that same understanding of the Citizenship Clause in 1940, when it enacted what is now 8 U.S.C. 1401(a), and when it re-enacted that provision in 1952. Therefore such “birthright” citizenship is established as a matter of statute, regardless of how a President today might read the Fourteenth Amendment—and Executive Branch officials may not act in contravention of that statute.
Several lawsuits have already been filed challenging the legality of E.O. 14160. On Friday, the Department of Justice Civil Division filed at least four briefs opposing motions for preliminary injunctions in those suits:
- New Hampshire Indonesian Community Support v. Trump (D.N.H.)
- Casa, Inc. v. Trump (D. Md.)
- State of Washington v. Trump (W.D. Wash.) and Aleman v. Trump (W.D. Wash.) (consolidated)
- O. Doe v. Trump (D. Mass.) and New Jersey v. Trump(D. Mass.) (consolidated)
DOJ’s briefs raise a host of questions, most of which the plaintiffs presumably will address in the reply briefs they’ll file this week.[1] (Here’s the first of those reply briefs, filed yesterday by Georgetown’s Institute for Constitutional Advocacy and Protection (ICAP) in the Casa case in Maryland.) The function of this article, however, is merely to draw attention to two remarkable things about DOJ’s argument on the meaning of the Fourteenth Amendment, both of which demonstrate how seriously the Department’s professional standards have already been compromised in the first two weeks of the administration.
DOJ’s Failure to Square Its Reading With Binding Supreme Court Precedent
First, DOJ’s argument depends crucially on its jarring insistence that the term “jurisdiction” in the Citizenship Clause phrase “subject to the jurisdiction thereof” does not refer to the national government’s regulatory power over such persons. (See, for example, p. 8 of the DOJ brief in the New Hampshire case brought by the ACLU.) According to DOJ (see p. 10), a person born in the U.S. is “subject to the jurisdiction” of the United States within the meaning of the Clause only if he or she is both bound to comply with U.S. law and also not subject to the jurisdiction of any foreign power. See also p. 11 (arguing that the person’s allegiance to the United States must be “unqualified by ‘allegiance to any alien power’”).
This argument is extremely broad, as it would deny Fourteenth Amendment citizenship even to persons born to parents who are lawfully in the United States, simply because those parents remain citizens of their home nations. (That explains the second category of the excluded persons in Section 1 of the Executive Order, quoted above, which would deny citizenship to, e.g., persons born to foreign nationals lawfully present in the U.S. on a work or student visa.) It is also a decidedly atextual argument. There’s no language in the Citizenship Clause providing (or so much as suggesting) that persons subject to the laws of a foreign state (or having some “allegiance to an alien power”) cannot be U.S. citizens. And there’s certainly nothing in the text or common understanding of the Clause that supports the notion that a person born in the United States is not subject to U.S. jurisdiction simply because she’s also subject to another State’s jurisdiction. Such a reading would have profound implications for countless persons who have, since 1898, been born to parents who were nationals of another State. (Among other things, it would appear to preclude dual citizenship unless Congress authorized it.)
As extraordinary as those aspects of DOJ’s interpretation of the Citizenship Clause might be, what’s most remarkable about the DOJ briefs is that they do not even acknowledge that a governing precedent of the Supreme Court has already rejected that very reading. In U.S. v. Wong Kim Ark, the Court held that a person born in the U.S. to Chinese nationals who were not U.S. citizens was a citizen by virtue of the Citizenship Clause, even though he and his parents were “subjects of the Emperor of China.” 169 U.S. at 652; accord id. at 654, 695, 699, 705. (In his dissenting opinion, Justice Fuller explained that Wong Kim Ark and his parents had not, and could not, “renounce[] their allegiance to their native country” of China, and that they therefore could not be “completely subject to the jurisdiction of [the United States].” Id. at 725; see also id. (“Generally speaking, I understand the subjects of the Emperor of China—that ancient Empire, with its history of thousands of years and its unbroken continuity in belief, traditions and government, in spite of revolutions and changes of dynasty—to be bound to him by every conception of duty and by every principle of their religion, of which filial piety
is the first and greatest commandment; and formerly, perhaps still, their penal laws denounced the severest penalties on those who renounced their country and allegiance, and their abettors; and, in effect, held the relatives at home of Chinese in foreign lands as hostages for their loyalty.”). The majority did not question that understanding.)
Wong Kim Ark’s parents themselves, explained the Court, “must be held to be subject to the jurisdiction of the United States, within the meaning of the first sentence of [Section 1 of the Fourteenth Amendment],” even though they were “subjects of the Emperor of China” with a bond of allegiance to that nation; and it therefore followed a fortiori that Wong Kim Ark himself “cannot be less ‘subject to the jurisdiction thereof.’” Id. at 696.
DOJ’s briefs acknowledge (p. 11) that Wong Kim Ark’s parents were subjects of the Chinese emperor. Yet DOJ does not argue that Wong Kim Ark was thus wrongly decided and ought to be overruled. Nor does DOJ make any effort at all to reconcile the Court’s decision in Wong Kim Ark with DOJ’s new argument that a person cannot be “subject to” U.S. jurisdiction if she is also a subject of—and owes allegiance to—a foreign State.
Such a conspicuous and inexplicable omission is, to say the least, not the sort of thing that has traditionally characterized DOJ briefs.
The Civil Division does attempt to distinguish Wong Kim Ark on another ground, based upon Wong Kim Ark’s parents’ lawful “domicile” in San Francisco. Such domicile wasn’t, however, the basis of the Court’s holding, and—as I explain in a footnote—it wouldn’t in any event be a ground for distinguishing Wong Kim Ark from many situations covered by the Trump E.O.[2] More importantly, such domicile is irrelevant to DOJ’s new account of what it means to be “subject to the jurisdiction” of the United States. And—perhaps most important of all—the U.S.-born children who are the subjects of the Executive Order have not acted unlawfully at all. They did not unlawfully enter (or remain in) the United States; and their domicile certainly is not unlawful. Therefore, even if the Court’s decision in Wong Kim Ark had turned upon whether or not the domicile of Wong Kim Ark or his parents was “lawful”—and it didn’t—that wouldn’t lend any support to the Executive Order.
DOJ’s Failure to Contend with the Department’s Own Longstanding, Authoritative View
Second, DOJ’s briefs casually dismiss the Department’s own longstanding, authoritative understanding of the Citizenship Clause—and more than a century of practice in the political branches.
In the 30 years between ratification of the Fourteenth Amendment and Wong Kim Ark, the Executive Branch’s views on the question presented by Executive Order 14160 varied. (See Mike Ramsey’s article at pp. 420-21, 457.) Ever since Wong Kim Ark, however, the Department of Justice (and the Executive Branch more broadly, in its implementation of many laws that turn on citizenship) has embraced the Court’s understanding … until this past Inauguration Day.
Consider, for example, U.S. ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957). In that case, a husband and wife who were Greek nationals lawfully entered the United States as crew members of ships docked in a U.S. port. They both unlawfully failed to leave the county when their limited, authorized stay expired, after which the woman gave birth to a child in the United States. They then requested suspension of deportation because their citizen child would suffer economic hardship if his parents were deported. The Board of Immigration denied that request, and the Supreme Court held that the Board did not abuse its discretion.
For present purposes, what’s significant about Hintopoulos is that the Solicitor General conceded that the child was a U.S. citizen, despite the fact that his parents were subjects of a foreign nation and were unlawfully in the United States, see 1957 WL 87025, at *7, *11, and the Court agreed that “the child is, of course, an American citizen by birth.” 353 U.S. at 73. The SG and the Court agreed about such child citizenship in later, similar, cases, too—such as in INS v. Errico, 385 U.S. 214, 215 (1966) (see SG brief, 1966 WL 100686 at *5), and in INS v. Rios-Pineda, 471 U.S. 444, 446 (1985) (see SG brief, 1985 WL 669850, at *24).
Most importantly, in 1995 the Assistant Attorney General (AAG) for the Office of Legal Counsel (OLC), Walter Dellinger, testified before Congress that legislative proposals to deny birthright citizenship to children born to undocumented parents would be “unquestionably unconstitutional.” Indeed, Dellinger emphasized that although OLC “grapples with many difficult and close issues of constitutional law,” this is “not among them.”
Two years later, Acting OLC AAG Dawn Johnsen likewise testified that such legislation “would be flatly unconstitutional.” Citizenship Reform Act of 1997; and Voter Eligibility Verification Act: Hearing Before the Subcommittee on Immigration and Claims of the House Committee on the Judiciary, at 19 (June 25, 1997); see also id. at 27 (noting that in 1930, the State Department “found that a child born on Ellis Island to a woman who had not yet been admitted to the United States under the immigration laws was nonetheless a citizen of the United States” (citing Memorandum of the Office of the Solicitor for the Department of State on Ona Laszas (Feb. 6, 1930), in 3 Green Haywood Hackworth, Digest of International Law, § 221, at 10 (1942)).
That has long been the official, authoritative view of the Department of Justice, binding on the Executive Branch as a whole. It has governed extensive Executive practice, in every administration, for well over a century. Persons born in the United States to parents owing allegiance to another nation—including parents who entered or remained in the United States unlawfully—have been drafted, enlisted, voted, obtained passports, etc., by virtue of the fact that the government has (rightly) deemed them to be U.S. citizens. And Congress has (at a minimum) acquiesced in this uniform understanding and practice.
In the ordinary course, a Civil Division brief would have to be consistent with the authoritative DOJ views expressed by OLC and OSG—and with longstanding Executive Branch practice. So what explains the briefs that DOJ filed on Friday?
In those briefs, the Civil Division does not even bother to cite DOJ’s previous binding views. Nor do the briefs address the fact that their reading of the Citizenship Clause would call into question the legality of decades of Executive Branch practices. The briefs’ entire response to such precedent and practice is—I kid you not—the bald statement that “the scope of the Citizenship Clause turns on what it meant in 1868, not on what the Executive Branch assumed it meant during parts of the 20th century.”
Even putting aside the fact that the Supreme Court long ago rejected the brief’s argument about what the Citizenship Clause “meant in 1868,” this failure to address precedent and practice is an unconscionable and unprecedented deviation from DOJ norms.
Of course, an OLC opinion can be overruled by OLC itself, by the Attorney General, or by the President. And, in the absence of an OLC or Attorney General opinion, the Solicitor General may occasionally change the litigation position of the United States on a constitutional question. Such overruling or change, however, is very rare, and ordinarily occurs only after a very careful and elaborate process of debate and discussion, involving at a minimum OLC and OSG, about whether to disregard well-established DOJ precedent. Moreover, when a decision is made to overrule such precedent, the specific reasons for such change are typically explained to the public and the courts in some detail. (For example, if (hypothetically) Acting Attorney General James McHenry decided to overrule the longstanding OLC/OSG view, a Civil Division brief of this sort would ordinarily say so, and would explain the AG’s reasoning for doing so, addressing the merits of the arguments formerly adopted by DOJ.)
There’s no indication that any of that happened in this case. (And as Jack Goldsmith and Bob Bauer explain, this is hardly the only situation in which established procedural norms, including the role of OLC, have been disregarded in the past three weeks.) From all that appears, the Civil Division simply took it upon itself to disregard the longstanding DOJ views with a dismissive wave of its hand.
[1] Perhaps most notably, DOJ is right to note that if the term “subject to the jurisdiction [of the United States]” means being bound to comply with U.S. law and being “in the allegiance and under the protection of the country,” Wong Kim Ark, 169 U.S. at 693, it is difficult to square that reading with some of the “exceptions or qualifications (as old as the rule itself)” to the “ancient and fundamental rule of citizenship by birth within the territory” that the Fourteenth Amendment “affirms,” id,—particularly for persons born in the U.S. to Native American parents on Indian territory and persons born in the U.S. to foreign ministers. There’s no dispute that the framers of the Citizenship Clause intended that such persons would not be citizens by virtue of their place of birth—perhaps because the federal government has consented to some limits on its authority to enforce federal law against them. Even so, DOJ is right that such persons are subject to federal law in some respects—in the sense that they have a legal obligation to comply with it and that they’re protected by certain aspects of it—and therefore it’s a challenge to explain just why the plain terms of the Clause were thought to be sufficient to establish such exceptions.
That said, the historical exceptions do not extend to the categories of persons described in Section 1 of the Trump Executive Order. What’s more, and in contrast to persons covered by those exceptions, the federal government may and does enforce all of its laws against the persons described in the Executive Order, just as it does with respect to other citizens.
[2] DOJ emphasizes the fact that the Court described Wong Kim Ark’s parents as having had “a permanent domicile and residence in the United States,” 169 U.S. at 653, when Wong Kim Ark was born in 1873. (That characterization was taken from stipulated facts offered by the parties. As the Court knew, however, see id. at 652, Wong Kim Ark’s parents did not reside in the U.S. “permanently”—they returned to China in 1890. Thus, the Court’s use of the word “permanent” presumably meant indefinite.) That will also be true, however, of many of the parents of persons described in the Trump Executive Order: They will have had children after living in the United States for an extended period—in many cases even longer than Wong Kim Ark’s parents (who are unlikely to have entered the United States many years before the birth in 1873)—with no plans to leave.
DOJ asserts (p. 11) that the term “domicile” was understood in 1898 “to have two components—presence that is both permanent and lawful.” DOJ cites no authority at all for that assertion—let alone to support the notion that the Court’s holding in Wong Kim Ark depended upon residence that was either “permanent” or “lawful.” In any event, as noted above, Wong Kim Ark’s parents’ residence was no more “permanent” than that of many parents described in the Trump Executive Order. Moreover, the “domicile” of the parents covered by E.O. 14160 is not unlawful. Although some of those parents might have entered the United States unlawfully (8 U.S.C. 1325(a) makes it a misdemeanor for an alien to enter the United States “at any time or place other than as designated by immigration officers”), they violate no law by living in a particular place.