Debunking 4 Big Errors Made in Lawsuit to Stop Trump’s Birthright Citizenship Order

One of the most controversial of the executive orders signed by President Donald Trump in the hours after being sworn in was his order on birthright citizenship. That order directed federal agencies to stop issuing citizenship documents for children born in the United States unless at least one parent was a citizen or lawful permanent resident at the time of the child’s birth.

As my colleagues and I have long argued, such a move is not only perfectly consistent with the original public meaning of the 14th Amendment’s Citizenship Clause, but is an important and necessary course-correction in federal immigration policy.

Within a day, however, a number of Democrat-controlled states filed a lawsuit in federal court seeking to stop Trump’s order from going into effect—just one of several similar lawsuits filed by various groups since then. The arguments offered by these Democratic-controlled states were, as anticipated, largely terrible.

Here are four of the most erroneous things they assert in their lawsuit.

Error #1: The Citizenship Clause merely adopted the pre-Dred Scott common law rule that everyone born in the United States is automatically a citizen.

In 1856, the Supreme Court held in the infamous case of Dred Scott v. Sandford that the U.S.-born descendants of African slaves were not and could never become citizens, even though under the traditional common law rule, a person automatically became a citizen of the nation on whose soil he or she was born. The plaintiffs contend that the 14th Amendment’s Citizenship Clause was intended to restore this earlier common law rule of universal birthright citizenship.

They support this claim with a single, highly edited quotation from Sen. Jacob Howard, a Republican from Michigan, who was instrumental in drafting the Citizenship Clause: “This amendment … is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is … a citizen of the United States.”

While it’s true that Congress sought to override Dred Scott, this doesn’t mean it sought to adopt the pre-Dred Scott common law rule.

It’s clear from the unedited context and a comprehensive reading of the legislative history that when Howard referred to the “law of the land already,” he wasn’t referring to the pre-Dred Scott common law rule of universal birthright citizenship. That common law rule, after all, had been largely abrogated by the Dred Scott decision.

Instead, Howard was referring to the Civil Rights Act of 1866, which was valid federal law. That act was Congress’s first attempt to override Dred Scott, and statutorily defined birthright citizenship for the first time in American history: “[A]ll 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.”

Far from being an adoption of common law universal birthright citizenship, the Civil Rights Act intended to bestow birthright citizenship only on the children of those who, like the newly freed slaves, owed complete allegiance to the United States and were subject to the fullest extent of its political jurisdiction.

As Sen. Lyman Trumbull, a Republican from Illinois—the primary drafter of the Act’s Citizenship Clause—explained, one of Congress’ main difficulties was finding language adequate for that task. He recounted how they at first considered the qualifier: “That all persons born in the United States and owing allegiance thereto are hereby declared to be citizens.” But Congress rejected this phrasing because “upon investigation it was found that a sort of allegiance was due to the country from persons temporarily resident in it whom we would have no right to make citizens, and that that form would not answer.”

Congress then settled on the final language of the Civil Rights Act, which, unlike the common law rule, clearly distinguished who was entitled to birthright citizenship based on the strength of their allegiance.

The drafters and ratifiers of the 14th Amendment sought to cement this conception of birthright citizenship, not the broader common law. Key members of Congress acknowledged this reality throughout legislative history, as did subsequent generations of renowned constitutional law scholars.

Indeed, the most damning indictment of the plaintiff’s contention comes from the very quotation they use to support it—at least when that quotation isn’t disingenuously edited. The very next line of the quote, which the plaintiffs in this lawsuit conveniently cut, reads: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors [sic] or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

This clearly demonstrates that Howard believed they weren’t constitutionalizing the common law rule, but rather a rule that—consistent with the Civil Rights Act’s focus on allegiance to foreign powers—was much more selective in its bestowal of birthright citizenship. While this new rule wouldn’t create barriers based on race, it would absolutely create them based on the strength of the person’s relationship to the nation.

Moreover, the statutory definition of birthright citizenship remained valid federal law after the 14th Amendment was ratified, and existed side-by-side with the new constitutional definition for another 70 years. During that time, both courts and scholars understood that these definitions were consistent and complementary, which couldn’t possibly be the case if the 14th Amendment merely adopted the old common law rule.

Error #2: This is an unprecedented action—the Executive Branch has long recognized that it can’t deny citizenship to children based on the immigration or citizenship status of their parents.

This assertion is only true if history begins in the first half of the 20th century. Unfortunately for the plaintiffs, it doesn’t. In the decades following the ratification of the 14th Amendment, the federal government regularly articulated a view of the Citizenship Clause that’s remarkably similar to that espoused in Trump’s order, and the executive branch issued citizenship documents accordingly.

For example, in 1885, Secretary of State Thomas Bayard instructed federal officials not to consider a U.S.-born man to be a U.S. citizen because his German parents were never permanent U.S. residents and returned with the child to Germany when he was  2-years old. He was, therefore, at the time of his birth, “subject to a foreign power” and not “subject to the jurisdiction of the United States.”

Earlier that year, then-Secretary Frederick Frelinghuysen similarly instructed officials to deny a man a U.S. passport despite his birth on U.S. soil, because his German father brought him back to Germany as an infant and raised him there. He wrote that “the fact of birth [in the United States], under circumstances implying alien subjection, establishes of itself no right of citizenship.”

And in 1890, the secretary of the Treasury issued an opinion denying citizenship for the child of a would-be immigrant who was being held on a ship in New York Harbor while awaiting immigration approval. The mother had been allowed to give birth and receive treatment at a New York hospital. Nonetheless, they were both deported as non-citizens, and the opinion distinguished this case from that of an immigrant mother who’d “resided in this country a considerable time before her child was born.”

Error #3: The Supreme Court confirmed in Wong Kim Ark that the Citizenship Clause automatically bestows citizenship on the U.S.-born children of noncitizen parents.

Contrary to popular assertions, this is not what the Supreme Court held in the 1898 case of Wong Kim Ark v. United States. The question decided by the court in that case was far narrower: whether a child born in the U.S. to lawfully present and permanently domiciled immigrant parents was a U.S. citizen. And the court concluded that, indeed, the U.S.-born child of this narrow and specific subset of noncitizen parents is a citizen.

Importantly, at the time, the Chinese Exclusion Acts effectively prohibited Chinese immigration and prevented those Chinese immigrants already lawfully residing in the U.S. (like Wong Kim Ark’s parents) from becoming naturalized citizens. The court was assessing a situation where federal law created a permanent race-based barrier to citizenship, that resulted in a class of lawful permanent residents being relegated to perpetual alienage throughout subsequent generations. This was an almost identical scenario to the situation of the U.S.-born descendants of African slaves after Dred Scott, which Congress was specifically trying to rectify with the Civil Rights Act and 14th Amendment.

But Wong Kim Ark does not stand for the premise that all U.S.-born children of all immigrants under all circumstances are automatically citizens. Nor does it mean that the Supreme Court definitively held that the 14th Amendment adopted the full scope of the common law’s universal birthright citizenship. In fact, the court repeatedly emphasized the lawful and permanent domicile of Wong Kim Ark’s parents, factors that are utterly irrelevant under the common law. A true common law opinion would have said, “He was born on U.S. soil, his parents aren’t diplomats or part of some invading army, so therefore he is a citizen.”

This is also why, for decades after Wong Kim Ark, leading constitutional law scholars continued to articulate a distinction between American birthright citizenship—“where the alien must be permanently domiciled”—and birthright citizenship under English common law, which applied even to temporary sojourners.

Error #4: The president’s order will leave many children deportable and stateless.

It would rarely, if ever, be true that a U.S.-born child of illegal or non-permanent resident aliens would be left stateless simply because he or she isn’t automatically granted U.S. citizenship. Virtually every nation (including the United States) recognizes some manner of citizenship “by blood,” under which a child is automatically eligible for citizenship when one or both parents are citizens, even if that child is born abroad.

In many countries, this hereditary citizenship is bestowed automatically. In some countries, like India, the child is automatically eligible for citizenship but only obtains it if the parents register the birth at an Indian diplomatic mission within one year. 

The plaintiffs, meanwhile, don’t bother articulating a single set of circumstances under which a U.S.-born child of foreign nationals would ever be completely ineligible for—or disqualified from—citizenship or nationality in every other country the world due to a confluence of legal technicalities and the fact of his or her birth on U.S. soil.

It’s clear from this lawsuit that proponents of universal birthright citizenship are far more interested in obtaining their desired outcome than they are interested in discerning what the 14th Amendment actually meant to the people who drafted and ratified it. But then again, in a world of living constitutionalists who feel that meaning of our nation’s charter should change to suit their current political ideology, what else is new?

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