President Trump made news this past week by declaring that his Administration would break from the longstanding interpretation (or rather, indifference) of previous administrations with respect to the requirements of the 14th Amendment’s birthright citizenship clause, arguing that the Constitution does not confer citizenship on children born on American soil to parents without permanent legal status.
This reading of the law, and executive action in support of same, is remarkably unremarkable. At least, it should be.
The reflexive among us responded predictably, shrieking that it is an obvious example of executive overreach, and an affront to the Constitution, and that any policy changes should come from Congress. Suddenly, everybody on social media is a constitutional scholar.
But none of these arguments withstand any scrutiny.
The relevant portion of the 14th Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Without even reaching the merits of the various legal interpretations of this language, it cannot be debated that the President is required for himself to interpret the law in order to implement it. How else is he supposed to execute it? When Congress passes a law that compels the executive branch to do something — in this case confer citizenship on a defined class of people — it necessarily requires the executive branch to determine what those words mean.
Liberals have taken to reminding us (as though we required it) that conservatives complained most vociferously when President Obama substituted executive for legislative action, and certainly we do not want the Constitution rewritten by the President’s pen. But while certain constitutional amendments prohibit the government from doing things – such as the 1st and 2nd Amendments, for example — other amendments, like the 14th, require the government to do something — i.e., execute a policy — which necessarily requires the executive branch to interpret the meaning of the law (what does “and subject to the jurisdiction” mean?) and how to do it (in this case, confer citizenship in certain circumstances), and that is done by executive policy.
Of course, interested groups can challenge that interpretation in the courts and receive contrary guidance, but in the absence of court intervention, it is self-evidently the responsibility of the executive to interpret laws in order to execute them.
The granting of citizenship in particular, is, by its very nature, an executive, which falls under the province of the U.S. Citizenship and Immigration Services (formerly INS), which is part of the Department of Homeland Security, which is an executive branch agency, answerable directly to the President. As such, its activities are subject to, controlled by, and established by executive dictate.
Further, the argument that Trump should seek congressional approval of this policy shift is self-defeating. Congress already acted in passing the Civil Rights Act of 1866, from which the birthright citizenship language was culled, and the 14th Amendment, which made it a constitutional imperative. Once they did that, it became the President’s responsibility to interpret it, in order to execute it.
And, incidentally, this President’s interpretation happens to be correct, consistent as it is with the historical understanding of the law, its legislative history, and precedent in the courts.
Indeed, there is perhaps no argument more fatuous than that which essentially says the 14th Amendment was passed to enable birthright tourism, and provide an incentive to come here illegally and flaunt immigration laws. The 14th Amendment, and the preceding Civil Rights Act of 1866, were authored in the immediate wake of the Civil War, with the birthright clauses specifically included to ensure that slaves and their children were given full citizenship. It seems quite clear that the language “and subject to the jurisdiction thereof” was not written just to sound good, but was inserted precisely to prevent citizenship from being conferred on the children of those without permanent legal status, whether they be aliens, or just transients.
This is confirmed by several sources. For example, when Sen. Jacob Howard commenced debate on a resolution that would eventually become the Citizenship Clause of the 14th Amendment, he clarified:
“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”
Just a few years later, in 1873, the Attorney General (an executive branch officer, by the way) issued an opinion arguing that “The word ‘jurisdiction’ must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.”
This interpretation was confirmed by the United States Supreme Court the same year, in the famous “Slaughter House Cases,” when it held that “The phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
This is common sense. Someone who is a citizen of, say, Mexico, is a Mexican subject. They do not cease being a Mexican subject when they come into a different country illegally (or legally but temporarily), just like one does not cease being an American subject when they travel to a different country to visit. Obviously, every country has the right to police activities within its boundaries, but that does not mean everybody within its boundaries is a subject of that country. Put another way, the constitutional requirement of being subject to this jurisdiction is the same as being a subject of this jurisdiction. Any other interpretation of that language simply does not make sense.
So the charge that Trump is trying to “eliminate” the 14th Amendment (which is actually a very large amendment that contains a lot of language that has nothing to do with immigration), or amend it by executive fiat, is nonsense. Trump is doing what the law requires him to do, and he is interpreting it correctly.
If anyone is amending or offending or otherwise threatening the Constitution, it’s the people who choose to ignore the “subject to” language, as though it serves only to take up space on the paper.