The Citizenship Clause of the Fourteenth Amendment states 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.” In 1995, Walter Dellinger, then the Assistant Attorney General for the Office of Legal Counsel (OLC), testified before Congress that legislative proposals to deny birthright citizenship to children born to undocumented parents would “unquestionably” violate this constitutional guarantee. Indeed, Dellinger pointedly declared that although OLC “grapples with many difficult and close issues of constitutional law,” this is “not among them.”
That has been the consensus understanding among courts, scholars and executive branch agencies for well over a century … until four weeks ago, when President Trump issued Executive Order 14160. Section 1 of that Order 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 born … in the United States” whose fathers are not citizens or lawful permanent residents: (i) those whose mothers were “unlawfully present in the United States” on their date of birth; and (ii) those whose mothers were lawfully present in the country at the time of birth but only on a “temporary” basis (such as a mother present in the U.S. on a student, work or tourist visa).
This past Saturday, the New York Times published an Op-Ed by professors Randy Barnett and Ilan Wurman that attempts to defend the E.O.’s radical departure from generations of legal and scholarly consensus. According to Barnett and Wurman, Trump’s Order is “not necessarily” inconsistent with the plain language of the Citizenship Clause. They argue, in particular, that the Clause might not guarantee citizenship to someone born in the U.S. if both of their parents were not U.S. citizens and entered the U.S. unlawfully.
As we’ll explain below, Barnett and Wurman’s apologia for the Trump Executive Order is fundamentally flawed and irresponsible in several critical respects—most importantly, in its contention that a child born in the United States is denied citizenship because his or her parents once violated the law. The wide-ranging criticism the Op-Ed has generated in just four days should not be understood to reflect a serious scholarly debate among reasonable, competing perspectives; rather, it is a sign of how simultaneously wrong and dangerous the Barnett/Wurman attempt to defend the Trump Executive Order truly is. [Yesterday, in reaction to initial criticisms, Professors Barnett and Wurman published a blogpost elaborating upon and defending their Op-Ed. That post does not eliminate the central errors in their argument. We address some of the points Barnett and Wurman raised in yesterday’s post in footnotes here.]
Before we address the major flaws in the Barnett and Wurman argument, it’s worth noting that their fixation on whether a child’s parents entered the country unlawfully should have led them to condemn one part of the Trump E.O. as unconstitutional: namely, Section 2(a)(2), which purports to deny birthright citizenship to U.S.-born persons (e.g., Kamala Harris) whose mothers were present in the U.S. lawfully but temporarily, such as pursuant to student, work, or tourist visas. Rather than addressing this part of the Trump E.O., Barnett and Wurman attempt to avoid it by claiming, at the end of their Op-Ed, that the E.O.’s “exclusion of children born to mothers who are ‘lawful but temporary’ residents is a more complicated question not addressed here.” Not so. On their own theory of the Citizenship Clause, the question isn’t complicated in the slightest: Section 2(a)(2) of the Trump Executive Order is unconstitutional, full stop.
Barnett and Wurman’s theory of the Citizenship Clause also undermines the argument the Department of Justice is advancing in support of the Trump E.O. Because DOJ is trying to defend all of the Executive Order, it resorts to arguing that the Citizenship Clause doesn’t apply to any persons born in the United States if both of their noncitizen parents had allegiance to another nation at the time of their birth, without regard to whether those parents entered the U.S. lawfully. Barnett and Wurman don’t even mention this DOJ argument, let alone defend it—and it can’t be reconciled with their argument that the question turns on the lawfulness of the parents’ entry. (The DOJ argument is also flatly inconsistent with the Supreme Court’s binding holding in U.S. v. Wong Kim Ark (1898), which recognized birthright citizenship of a person born in the United States even though both he and his parents were subjects of the Emperor of China.)
In addition to not acknowledging the necessary implications of their argument, Barnett and Wurman’s Op-Ed fails even to mention that Congress enacted a citizenship statute in 1940—re-enacted in 1952 and codified today as 8 U.S.C. 1401(a)—that tracks the language of the Citizenship Clause. The 1940 and 1952 Congresses were fully aware that the government had long treated U.S.-born children as citizens even if their parents had entered the nation unlawfully—for example, by issuing passports to those children. Congress did not call that practice into question. Congress therefore afforded such children a form of statutory citizenship. Regardless of whether Barnett and Wurman’s (or Trump’s) understanding of the Fourteenth Amendment is correct, the Trump E.O. directs federal officials to disregard that federal statute—something the President may not do. In their Op-Ed, Barnett and Wurman simply ignore the statute, presumably because it undermines their effort to bolster their defense of the Trump Executive Order.
At the very end of their follow-up post, Barnett and Wurman concede that Section 1401(a) “seem[s] to treat aliens who came here unlawfully as falling within the birthright citizenship rule” (emphasis added) and that, “[t]o the extent such laws have been enacted, an executive order that violates them would be improper.” Well, Congress has enacted such a law, and therefore—for that reason alone—the Trump Executive Order is improper. In other words, even if the Trump E.O. reflected an accurate understanding of the Fourteenth Amendment’s Citizenship Clause—and it doesn’t—nothing in Barnett and Wurman’s defense of the E.O. even attempts to save it from the patent illegality that flows from its inconsistency with federal statutes, whose meaning has been settled for decades. It’s disappointing that Barnett and Wurman only grudgingly and equivocally acknowledge that decisive point—and only then in a supplemental online post—given that the theme (and conclusion) of their Op-Ed is that “the justices will find that the case for Mr. Trump’s order is stronger than his critics realize.”
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Barnett and Wurman’s constitutional argument begins by acknowledging that the requirement in the Citizenship Clause that a person born in the United States be “subject to the jurisdiction thereof” in order to become a citizen at birth was intended to incorporate what the Court in Wong Kim Ark later referred to as “the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country.” 169 U.S. at 693. Barnett and Wurman badly misunderstand, however, when and how “allegiance” and “protection” apply, and that misunderstanding leads them to make several critical mistakes with respect to the Citizenship Clause.
The thrust of Barnett and Wurman’s argument is, first, that the Citizenship Clause doesn’t confer citizenship upon someone born in the U.S. unless that person’s parents were “within the allegiance and under the protection of” the United States on the date of birth, and, second, that parents who entered the country unlawfully are not “within the allegiance” of the nation. Nothing in their Op-Ed, however, offers support for either of these misguided propositions.
Note, for starters, that Barnett and Wurman’s argument is unmoored from the actual text of the Fourteenth Amendment (including its original public meaning). There’s not much doubt that children born in the United States become “subject to” its jurisdiction, in both a colloquial and technical sense, at the moment of their birth. Moreover, the Citizenship Clause doesn’t refer to “allegiance” or “protection;” nor does it say anything about whether someone who enters the nation unlawfully lacks “allegiance” thereto. And, most importantly, the Fourteenth Amendment doesn’t refer to the parents of persons born in the U.S. at all.
Barnett and Wurman therefore have little choice but to rely instead upon what they insist is the “original purpose” of the Citizenship Clause (an unusual move for scholars nominally faithful to the public meaning of the text).[1] Yet their purpose-based account rests upon several indefensible assumptions about the role of allegiance and protection under the Fourteenth Amendment and about the relationship between a parent’s allegiance and the citizenship of his or her child born in the United States.
To say—as the Court did in Wong Kim Ark—that a person is “within the Allegiance” and “within the protection” of the United States, is simply to explain that the person in question must comply with the nation’s laws and that the nation itself has an obligation to confer upon that person the protection of its laws. That is certainly true with respect to U.S. citizens, but those reciprocal obligations are not unique to citizens. Visitors, too, are bound to obey U.S. law while they are here and protected by U.S. law—for example, laws against violent crime in the national parks or federal consumer protection statutes. (To be sure, there are some rights—for example, the right to vote—that are reserved for citizens; and citizens’ obligations of allegiance, unlike noncitizens’, extend beyond our boundaries. But that does not undermine the general point.)
This is where Barnett and Wurman’s constitutional argument begins to go off the rails. Their first major mistake is to assert that if a foreign national in the United States has not consented to allegiance to the United States—in Barnett and Wurman’s terms, if he or she has not “entered into the social compact,” “pledged obedience to the laws” or “given” their allegiance—then that person is not “within the allegiance and protection” of the nation.
That’s not so. “Allegiance” to the laws of the United States, as that concept was described by the Court in Wong Kim Ark, does not depend upon any affirmative pledge or agreement. Indeed, even if a visitor to the U.S. insists that she doesn’t have any obligation to comply with U.S. law—and is willing in return not to be protected by it—it remains the case that she is in fact obliged to comply with it (she has a duty of “allegiance” to it), and she is protected by it, while she is present here. As the Court wrote in Wong Kim Ark: “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, … although but local and temporary, continuing only so long as he remains within our territory.” (Emphasis added.) Allegiance is, in short, a duty, not a choice. Barnett and Wurman simply disregard this long-established and uncontested understanding of allegiance and obligation.[2]
Even if Barnett and Wurman’s assertion about the need for “consent” to allegiance were correct, they then proceed to make an even more fundamental error: They insist that persons who entered the United States unlawfully have not agreed to allegiance to the United States because, like an invading army, “they did not come in amity,” i.e., in friendship.
What can Barnett and Wurman possibly mean by that? This is the key sentence on which their argument depends: “[O]ne cannot give allegiance and promise to be bound by the laws through an act of defiance of those laws.”
That assertion is even more indefensible than their claim about the necessity of a “pledge” of allegiance. The fact that an individual has violated a U.S. law, even at the moment of entry, hardly means that the person has come to the United States with hostile intent or has disclaimed any allegiance to (and protection of) U.S. law. Indeed, the noncitizens covered by the Trump E.O., even if they had to skirt U.S. law to enter the country, are more law-abiding than many of their U.S.-born counterparts once they’re here. A recent multi-year study, for example, found that undocumented immigrants are roughly half as likely to be arrested for violent crimes as the U.S.-born. (What’s more, many of the parents described in the Trump E.O.—those who entered with visas—did come “in amity” even under Barnett and Wurman’s cramped understanding; at most they simply overstayed their welcome by not leaving at the end of their visa period. And the visa-holders covered by Section 2(a)(2) of the Executive Order haven’t even done that—both their entry and their presence at the time of birth were lawful.) Virtually all of the parents at issue gladly would, and their children regularly do, pledge allegiance to the flag, and to the republic for which it stands. Therefore, if their consent to “allegiance” were necessary—and it’s not—there’s no basis for Barnett and Wurman to insist that these persons have refused to confer such consent.[3]
Barnett and Wurman acknowledge that if this essential predicate of their argument were correct, it would also mean that such unlawful entrants are not entitled to the reciprocal protection of the Equal Protection Clause—which appears in the same section of the Fourteenth Amendment as the Citizenship Clause—because the Equal Protection Clause also “was based on the same allegiance-for-protection theory.” Yet the Supreme Court rejected that notion in 1886, explaining in Yick Wo v. Hopkins that the Equal Protection Clause is “universal in [its] application, to all persons within the territorial jurisdiction.” 118 U.S. at 369. And in 1982, all nine Justices of an otherwise fractured Court in Plyler v. Doe held likewise, specifically with respect to persons who entered the nation unlawfully. See 457 U.S. at 210-16; see also id. at 243 (Burger, C.J., dissenting) (“I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically ‘within the jurisdiction’ of a state.”). Once again, Barnett and Wurman simply disregard this binding precedent.
Finally, even if Barnett and Wurman were correct—and they aren’t—that persons who enter the United States unlawfully aren’t themselves “within the allegiance and protection” of the nation because they’ve refused to “give their allegiance” to it, there is no basis to insist, as Barnett and Wurman do, that such a disability would be imposed upon their children born in the United States. Those children, after all, have not violated any law at all by being born here, nor have they done anything else to disclaim allegiance. As Garrett Epps has written, “[t]o punish babies, much less to proscribe and entirely outlaw them, because of the perceived sins of their parents is alien to our moral and ethical tradition.” Indeed, if there’s one thing our Constitution unequivocally rejects, it’s hereditary guilt, even where a parent has levied war against the nation. See Article III, section 3 (“no Attainder of Treason shall work Corruption of Blood”).
As Judge Leo Sorokin wrote last Thursday in his excellent opinion in Doe v. Trump (D. Mass.), the Citizenship Clause itself “speaks only of the child,” not of her parents. “A child born in the United States necessarily acquires at birth the sort of allegiance that justified birthright citizenship at the common law. That is, they are born ‘locally within the dominions of’ the
United States and immediately ‘derive protection from’ the United States. [Wong Kim Ark, 169 U.S.] at 659. A child born here is both entitled to the government’s protection and bound to adhere to its laws. This is true regardless of the characteristics of the child’s parents, subject only to the narrow exceptions identified in Wong Kim Ark. Allegiance, in this context, means nothing more than that. See id. at 662 (‘Birth and allegiance go together.’).”
In his testimony on behalf of the Department of Justice in 1995, Walter Dellinger explained that although other nations “may seek more consensual and perhaps more changeable forms of citizenship,” in this nation “the simple, objective, bright-line fact of birth on American soil is fundamental.” Therefore, each person born in the United States “is born equal, with no curse of infirmity, and with no exalted status, arising from the circumstance of his or her parentage. All who have the fortune to be born in this land inherit the right, save by their own renunciation of it, to its freedoms and protections.” In their apparent effort to give credence to the Trump Executive Order, Professors Barnett and Wurman indefensibly ignore these core, constitutive principles.
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[1] In their follow-up post, Barnett and Wurman explain that because the word “jurisdiction” is protean (“a word of many meanings”), there’s little choice but to assess the framers’ intent, and that because (as the Supreme Court has held) the framers intended the Citizenship Clause to “encapsulat[e]” the common law jus solis rule, it’s necessary to “extrapolate[e]” the “principle and operation” of that common law rule to the situations described in the Trump Executive Order—situations that were never specifically considered by those who developed the common law rule. Whatever the merits of this methodological move (and we are skeptical), the result cannot be squared with the constitutional traditions and understandings that we actually have in this country.
[2] In their supplemental post, Barnett and Wurman concede that no affirmative, or “explicit,” consent is necessary—after all, that would lead to the absurd result that the Fourteenth Amendment did not confer citizenship upon former slaves (who never expressly consented to U.S. allegiance) and, on Barnett and Wurman’s view, on the children of such slaves, either. Accordingly, Barnett and Wurman must rely upon the notion that undocumented foreign nationals engaged in conduct that necessarily entailed their denial of consent to allegiance. For the reasons we explain in the text, that’s simply wrong as a descriptive matter.
[3] Barnett and Wurman’s follow-up post includes this opaque paragraph:
To say that children born to persons who illegally enter in violation of the nation’s sovereignty must be citizens because the nation is exercising the powers of sovereignty over them is a fatal contradiction and absurdity. Of course, the nation is exercising a kind of sovereignty in the sense it can subject them or their parents to some degree of domestic law. But the nation is not exercising sovereignty in any meaningful sense because one of the core rights of sovereignty—to control who enters the territory—is by definition being violated.
The key, boldface sentence is a non-sequitur. Even if someone violates a rule implementing the nation’s exercise of the “core” sovereign right to control who enters the territory, it would hardly mean that the nation “is not exercising sovereignty in any meaningful sense” over that person once she’s present in the territory. More importantly, this paragraph is focused upon the wrong actor—the parent. A child born in the United States “enters the territory” in just that way, i.e., by being born here. And that birth in no way implicates, much less violates, any of the nation’s “core rights of sovereignty.”
(Editor’s note: This article is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions.)