Karon Law Blog

Can a President Eliminate Birthright Citizenship By Executive Order?

Posted November 02, 2018

By Jonathan A. Karon

No.

It’s not a tough legal question. Neither a Presidential Order nor an Act of Congress can override the U.S. Constitution. The Fourteenth Amendment of the Constitution provides:

“All persons born or naturalized in the United States and subject to the jurisdiction therof, are citizens of the United States, and of the State wherein they reside.”

The Fourteenth Amendment to the Constitution was adopted after the Civil War to ensure that freed slaves were considered citizens. It is well settled Constitutional law that its provisions and protections apply to everyone and are not just limited to freed slaves and their descendants.

The language clearly states that anyone born in the United States is a citizen. But, lest there be any doubt, the Supreme Court decided the issue in 1898.

In the case of U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) the Supreme Court had to decide whether a child born in the U.S., of non-U.S. citizen Chinese parents, was a United States citizen.
The plaintiff was born in San Francisco, grew up in the U.S. and was denied re-entry to the U.S. following a brief visit to China.

In a detailed opinion, reviewing the concept of citizenship under the common law and the history of the adoption of the Fourteenth Amendment, the Court concluded that:

“Whatever considerations, in the absence of a controlling provision of the constitution, might influence the legislative or the executive branch of the government to decline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the fourteenth amendment, which declares and ordains that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’”

169 U.S. at 694.

In other words, it doesn’t matter what the President or Congress says, the Constitution says who qualifies as a U.S. citizen.

Apparently, one argument made by a very small number of self-described “legal scholars” is that the phrase “subject to the jurisdiction thereof [of the United States]” excludes the children of illegal immigrants because their parents are here illegally. The Court’s opinion makes it clear that this interpretation is just plain wrong. Although Won Kim Ark’s parents were in the U.S. legally, the Supreme Court explained that “subject to the jurisdiction of the laws of the United States” means anyone required to obey U.S. law. The only exceptions were the children of diplomats (who have diplomatic immunity), children of a hostile enemy occupying power, children born on foreign ships and (at that time) children of members of Indian tribes owing direct allegiance to the tribes (don’t ask me to explain this). Apart from that, “every citizen or subject of another country is within the allegiance and protection, and consequently subject to the jurisdiction of the United States.” Accordingly, all other “children born within the territory of the United States…of whatever race or color” are United States citizens. 169 U.S. at 474.

Much like today, at the time U.S. v. Wong Kim Ark was decided, tension over immigration was high. This led to the passage of the “Chinese Exclusion Act” designed to restrict immigration from China. Today, different ethnic groups are being targeted. So, it remains important to remember what the Supreme Court reminded us back in 1898:

“To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treated as citizens of the United States.”

169 U.S. at 474.

I’ve got nothing more to add.