The Fourteenth Amendment to the United States Constitution declares that “all persons born … in the United States, and subject to the jurisdiction thereof, are citizens.” Put more simply, the Amendment guarantees American citizenship — with all its rights and privileges — to children born on American soil. The Supreme Court has upheld this principle, and Congress has enshrined it in a federal statute.
Despite this, on Jan. 20, President Donald Trump signed an executive order seeking to eliminate the guarantee of birthright citizenship. On Feb. 3, Utah Attorney General Derek Brown joined an amicus brief supporting the executive order. Trump and Brown have both taken oaths to protect and defend our Constitution. And yet, both would bypass the Fourteenth Amendment and the constitutional principle of separation of powers to end birthright citizenship.
Those who support the executive order argue that the Fourteenth Amendment does not guarantee birthright citizenship to children of undocumented immigrants because they are not “subject to the jurisdiction of the United States.” This argument is legally problematic.
First, the legislators who drafted and passed the Fourteenth Amendment understood the birthright citizenship clause to apply to any person born in the U.S. When the Senate debated the Amendment, at least one person — Sen. Edgar Cowan — objected because he thought the children of people who “settle as trespassers,” “pay no taxes,” “invade (U.S.) borders” and “wander in gangs” were not fit for birthright citizenship. The Senate passed the Amendment anyway. One senator summed it up: “the children of all parentage whatever” were citizens.
Second, although the Supreme Court has identified certain groups that are not “subject to the jurisdiction of the United States,” it has never held that children of undocumented migrants fall within that category. In fact, in Schooner Exchange v. McFaddon (1812), Chief Justice John Marshall indicated that “aliens” implicitly assent to U.S. jurisdiction the moment they “come within the territory,” “purchase property within the country, or send property into the territory.” Later dealing with property inheritance in McCreery’s Lessee v. Somerville (1824), the court confidently treated as citizens children born in the United States to “alien” parents.
Third, the Supreme Court has already confronted — and rejected — a position much like the one Trump and Brown offer. In United States v. Wong Kim Ark (1898), the court recognized the birthright citizenship of a man born in the U.S. to Chinese parents. When Wong was born, U.S. law allowed Chinese workers to enter the U.S., but it did not allow them to naturalize (become citizens). In 1882, Congress passed the Chinese Exclusion Act. That law made it impossible for Wong’s parents to reenter the U.S. after they departed. Still, the Supreme Court held that Wong was a U.S. citizen; his parents’ status did not affect his acquisition of birthright citizenship.
In reaching its conclusion in Wong Kim Ark, the court recognized four groups that are not eligible for birthright citizenship: children of diplomats, babies born on foreign ships, enemies present during a hostile occupation and Native Americans born on tribal lands. (Congress later enacted a birthright citizenship provision for Native Americans.) The court said nothing of children of parents living in the country illegally. Indeed, two justices dissented from the court’s opinion precisely because they could not accept the court’s conclusion that “a child born in this country of parents who were not citizens of the United States, and … could not become such … is, from the moment of his birth, a citizen.”
In short, the birthright citizenship executive order flies in the face of clear and long-standing legal precedent, original understandings of the Fourteenth Amendment and the constitutional separation of powers. As law professors, we urge our elected officials to act in ways that reflect Utah’s commitment to legal precedent, rule of law and the principles of the Constitution they have committed to defend.