Are There Limits to Birthright Citizenship?

In the recent political debates among the various candidates for the Republican nomination for the presidency, Donald Trump has raised the issue of whether there are limits on the individuals who are entitled to be afforded birthright citizenship. On that point, the Fourteenth Amendment to the Constitution specifically provides that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of United States and of the State wherein they reside.” The critical constitutional issue revolves around the meaning of the “subject to the jurisdiction thereof” clause of the amendment.

On that issue, I suggest that there are different categories of individuals “born… in the United States,” and that their right to citizenship varies according to the category into which they fall. Here are some examples:

1. Children born to Native Americans and to foreign diplomats.

This is the easiest of the three categories. The Congressional Debates on the Fourteenth Amendment made it clear that Native Americans were not covered by its citizenship language. The Supreme Court confirmed this in Elk v. Wilkins (1884), when it ruled that a Native American born on a reservation was not an American citizen because he was not “completely subject to [the] political jurisdiction” of the United States, but instead was an individual “owing immediate allegiance to” his tribe. (It should be noted that Native Americans received the rights of United States citizenship thereafter in the Indian Citizenship Act of 1924.) Likewise, it has long been settled that children of foreign diplomats are not entitled to American citizenship when born in the United States, since their allegiance is owed to a foreign power. See Akhil Reed Amar, America’s Constitution: A Biography (Random House, 2005), at 381.

2.  Children born to foreign nationals who travel to the United States for the purpose of  conferring citizenship on their children.

Several articles and news reports have reported that wealthy foreigners, particularly those from China and Russia, have traveled to the United States to permit their wives to give birth to children in this country in order to obtain American citizenship for them. Mr. Trump has also contended that many Mexican parents travel over the border to permit their child to be born in the United States. After these children are born, their entire families then return to their respective foreign homes. It stretches logic to contend that the children of such individuals are entitled to American citizenship since their allegiance was, and is, to a foreign sovereign, and their stay in this country was carefully limited, with no intent to subject themselves generally to American jurisdiction.

3.   Children born to parents who are long-term residents of the United States, but have not applied for American citizenship.

This category would seem to be determined by the Supreme Court’s majority opinion, over two dissents, in  United States v. Wong Kim Ark (1898). Many commentators have relied upon this decision in concluding that any child born to illegal immigrants within the United States is entitled to American citizenship. A careful reading of Justice Gray’s majority opinion, however, reveals some critical facts which do not mirror the situation of many children born in the United States to illegal immigrants today. Thus, Wong Kim Ark was born to Chinese parents who were subjects of the Emperor of China, but had a lawful permanent domicile and residence in United States before they moved back to China. The parents were also conducting a business in the United States and had no official ties to China when they were domiciled in this country. Thus, when a child is born to parents who are long-term residents of the United States, that child should be entitled to birthright citizenship so long as his parents have no ongoing ties with their country of citizenship.

Not all commentators accept this reading of the Wong Kim Ark case. Thus, Professor John C. Eastman of Chapman University School of Law contends that the “subject to the jurisdiction” language of the Fourteenth Amendment requires “complete, political jurisdiction,” and would not cover the children of illegal immigrants born here. See John C. Eastman, “We Can Apply the 14th Amendment While Also Reforming Birthright Citizenship,”  National Review, August 24, 2015. In addition to pointing out the limiting facts of the Wong Kim Ark decision noted above, Professor Eastman also relies upon dicta from the Slaughterhouse Cases (1873), which read the “subject to the jurisdiction” language as excluding “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” It should be noted, however, that Justice Gray takes pains in Wong Kim Ark to characterize this language as careless dicta, and therefore not binding.

Given the different circumstances applying to the different categories outlined above, the argument made by Donald Trump and others that congressional legislation could clarify the situation has some merit, particularly for category two. To begin with, Section 5 of the Fourteenth Amendment provides that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” While the Supreme Court may very well take the position that interpretation of the “subject to jurisdiction” language is a legal matter exclusively within its purview, the current confusion as to just who is entitled to birthright citizenship could be cause enough for the court to defer to a reasonable clarification through congressional legislation.


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