On the menu today: On a marathon first half-day in office, President Donald Trump signed an executive order declaring that the U.S. Constitution’s 14th Amendment does not apply to the children of illegal immigrants born on American soil, and that those children are not U.S. citizens. As you’d expect, this order had a legal challenge before the ink was dry, and it will face tough scrutiny from the judicial branch of our government.

Trump vs. the 14th Amendment

The Supreme Court — and the federal court system in general — is going to be busy in the next couple of months.

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

An executive order from Donald Trump, on his first day in office:

. . . The Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.” Consistent with this understanding, the Congress has further specified through legislation that “a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text.

Actually, the question of who qualifies for citizenship under the 14th Amendment did come up at the Supreme Court, back in 1898 in United States v. Wong Kim Ark:

Wong Kim Ark was born in San Francisco to parents who were both Chinese citizens. At age 21, he took a trip to China to visit his parents. When he returned to the United States, he was denied entry on the ground that he was not a U.S. citizen. In a 6-to-2 decision, the Court ruled in favor of Wong Kim Ark. Because he was born in the United States and his parents were not “employed in any diplomatic or official capacity under the Emperor of China,” the Citizenship Clause of the Fourteenth Amendment automatically made him a U.S. citizen. This case highlighted a disagreement between the Justices over the precise meaning of one key phrase in the Citizenship Clause: “subject to the jurisdiction thereof.”

Justice Horace Gray, writing for the majority:

. . . 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. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. 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.

Trump administration lawyers are likely to argue that the Wong Kim Ark decision and precedent applied to resident aliens, meaning lawful permanent residents, not illegal immigrants. But there’s another Supreme Court case from 1982, Plyer vs. Doe, where the Court ruled, 5-4, “Whatever his status under the immigration laws, an alien is a ‘person’ in any ordinary sense of that term,” and, therefore, were afforded 14th Amendment protections.

Justice William Brennan, writing for the majority:

This Court’s prior cases recognizing that illegal aliens are “persons” protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase “within its jurisdiction,” cannot be distinguished on the asserted ground that persons who have entered the country illegally are not “within the jurisdiction” of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase “within its jurisdiction” confirms the understanding that the Fourteenth Amendment’s protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory.

It is conceivable that today’s Supreme Court might see the matter differently. It is also possible that the Court might determine that while the definition of citizenship can be legislatively changed to exclude the children of illegal immigrants, it cannot be unilaterally redefined by the executive branch.

Our Andy McCarthy, writing back in 2018 on whether Trump could end birthright citizenship through an executive order:

First, the legal landscape is not limited to the 14th Amendment. Congress has enacted a statute, Section 1401 of the immigration and naturalization laws (Title 8, U.S. Code). In pertinent part, it appears merely to codify in statutory law what the 14th Amendment says: included among U.S. citizens is any “person born in the United States, and subject to the jurisdiction thereof.” But that means the issue is not just what jurisdiction was understood to mean in 1868 when the 14th Amendment was adopted, but what it meant in 1952, when the statute defining U.S. citizenship was enacted (it has been amended several times since then).

Secondly, even assuming the meaning was the same, Congress’s codification of the 14th Amendment — which it did not need to do — is a strong expression of Congress’s intent to exercise its constitutional authority to set the terms of citizenship. . . .

To my mind, however, the president may not unilaterally change an understanding of the law that has been in effect for decades under a duly enacted federal law. Presumably, if Congress did not believe conferring birthright citizenship was consistent with Section 1401, it would have amended the statute.

Yuval Levin pointed to two constitutional scholars who agreed:

In the summer issue of National Affairs, two distinguished scholars of the Constitution (one of whom, Rogers Smith, is also the president of the American Political Science Association this year) took up the matter, and came to the same conclusion Andy does: The Constitution does not decisively resolve the question, and actually leaves it open to Congress, but not to the president acting on his own. “Birthright citizenship,” they write, “is a legitimate political and policy question, and a hard one.” But that does not make it a question open to resolution by executive action.

Late last night, the American Civil Liberties Union (ACLU) and other groups sued the new administration, said the order flouts “the Constitution’s dictates, congressional intent, and longstanding Supreme Court precedent.” The ACLU suit contends:

In the over 125 years since the Supreme Court emphatically rejected the last effort to undercut birthright citizenship in Wong Kim Ark, this principle has remained undisturbed constitutional bedrock. Even through countless subsequent immigration debates, and periods of intense anti-immigrant sentiment, this core constitutional guarantee has protected generations of Americans and prevented the emergence of a hereditary underclass excluded from full participation in American life.

Add it all up, and this executive order looks like it has a steep uphill climb in the federal court system. The Court might well uphold a passed law that denied citizenship to the children of illegal immigrants, but based on legal precedents, it is likely that the courts, including the U.S. Supreme Court, will look skeptically upon the argument that the president can redefine who is and who is not a U.S. citizen through executive order.

Ramesh noted during the campaign, “People who want to end that policy generally oppose it not because it makes legal immigrants’ children citizens, but because it makes illegal immigrants’ children citizens too.”

A January Associated Press-NORC survey asked respondents if they supported or opposed, “Changing the Constitution so children born in the U.S. are not automatically granted citizenship if their parents are here illegally,” and found 28 percent favored it, 20 percent did not support or oppose it, and 51 percent opposed it. In the most recent New York Times survey of U.S. adults, 41 percent of respondents supported “ending birthright citizenship for children born to immigrants who are here illegally,” while 55 percent opposed that idea.

ADDENDUM: Over in that other Washington publication I write for, I make an observation that right after publicly taking an oath to preserve, protect, and defend the Constitution, Trump asserted that he was not required to enforce a law passed by large bipartisan majorities in the House and Senate, signed into law by his predecessor, and upheld by the Supreme Court with no dissents. A less-than-ideal start for a man who pledged, “as commander in chief, I have no higher responsibility than to defend our country from threats,” and “under my leadership, we will restore fair, equal, and impartial justice under the constitutional rule of law.”