Yesterday, Republican presidential candidate Donald Trump announced that he, if elected President, would end birthright citizenship. Birthright citizenship is the principle that a child, even if born to illegal immigrants, automatically is bestowed with U.S. citizenship if that child was born while on U.S. soil (including overseas military bases, territories, and the like). So the question arises: Can Congress through statute or the President through executive action end birthright citizenship?
A quick look at the history of birthright citizenship is necessary to provide context to the eventual answer to this question. Originally, there were two schools of thought on birthright citizenship in pre-America Europe. Roman law, in an effort to perpetuate the feudal system, stated that citizenship followed the status of the parent. Thus, the child through descent and blood gained his/her citizenship and nationality just like any other physical trait. This served to ensure that the king and his vassals had a dedicated and loyal feudal base upon which to build long-standing kingdoms.
England, on the other hand, diverted from this practice. In 1700, the British statute of 11 & 12 Wm. III enacted that "all and every person or persons, being the king's natural-born subject or subjects, within any of the king's realms or dominions,' might and should thereafter lawfully inherit and make their titles by descent to any lands 'from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom' title should be made or derived, had been or should be 'born out of the king's allegiance, and out of his majesty's realms and dominions,' as fully and effectually, as if such parents or ancestors 'had been naturalized or natural-born subject or subjects within the king's dominions.'" 7 Statutes of the Realm, 590. In short, the statute established birthright citizenship. France soon codified a similar statute and by the time of the adoption of the 14th Amendment to the U.S. Constitution, "civilized" countries were split on the issue.
Article I, Section 8 of the U.S. Constitution gives Congress plenary power to enact laws related to immigration. Congress has acted to establish a very detailed and comprehensive immigration scheme, so why couldn't Congress simply eliminate birthright citizenship?
Favoring a policy of birthright citizenship (probably due to exploding immigration and an increased need in low-skilled labor), the 39th Congress passed the Civil Rights Act of 1866. The law stated, "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States...." 14 Stat. 27-30. The same Congress later enacted a joint resolution to amend the Constitution with the same birthright citizenship provisions (probably fearing the repercussions if a later Congress were to repeal the Civil Rights Act of 1866). That language was formally ratified by the states and added to the U.S. Constitution as the 14th Amendment in 1868.
The Citizenship Clause of 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." If the plain language of the Amendment was not enough evidence that birthright citizenship is protected by the U.S. Constitution, the Supreme Court put to rest any lingering doubts in United States v. Wong Kim Ark, 169 U.S. 649 (1898). The question considered by the court was whether a child born on U.S. soil to parents who were in the U.S. illegally becomes a U.S. citizen by birthright citizenship under the 14th Amendment. Id. at 653.
After analysis that mirrors the above paragraphs in this post, the court held in the affirmative that birthright citizenship was protected by the 14th Amendment. Id. at 705.
Back to the initial question: Can Congress through statute or the President through executive action end birthright citizenship? The plain language of the Citizenship Clause of the 14th Amendment, the historical context of English common law (from which many U.S. legal principles derive their beginnings), and the Congressional intent of the 14th Amendment as indicated by the Civil Rights Act of 1866 are all clear—there is a Constitutional civil right of birthright citizenship for all people born on U.S. soil regardless of the immigration status of the parents.
Under the Supremacy Clause of the U.S. Constitution, Congress cannot subvert a constitutional right via statute and the President cannot subvert a constitutional right via executive action. Therefore, for Mr. Trump's goal to be achieved, either the States through conventions or Congress through joint resolution must amend the U.S. Constitution as prescribed therein.
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