11/02/2018
I figure for my inaugural post, I would choose a topic as non-polarizing as possible. Well, that would be boring, so I thought I would suggest a topic that is making the news lately- the President's comment about repealing "birthright" citizenship. The answer as to whether he can do it (as opposed to whether he should try) is a legal one, and the simple answer is "no." He does not have the authority to repeal a constitutional amendment. However, the real issue is whether he can alter the current interpretation of the citizenship clause of the 14th Amendment. The answer hinges on the interpretation of a particular phrase in the 14th Amendment, "...subject to the jurisdiction thereof".
The full clause regarding birthright citizenship appears at first glance to be very straightforward: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." It would seem then, that everyone that is physically in the United States (such as a child born here regardless of the citizenship status of the parents) is subject to the personal jurisdiction of the laws of the United States and the state they are in. It reasonably follows that the plain meaning of this section would provide citizenship to anyone born in the United States.
However, as is usual when trying to interpret laws, things are rarely so simple. So, we need a bit of context. This Amendment followed the enactment of the Civil Rights Act of 1866. That law had very similar citizenship language, except instead of saying "subject to the jurisdiction thereof", it said "...not subject to any foreign power." By using this language in the Act, the drafters appeared to intend that citizenship would NOT be granted where the baby was subject to the authority of another country (although even that interpretation was not uniform, as there was a question of whether it meant the exclusive authority of another country).
In adopting the "subject to the jurisdiction thereof" language for the 14th Amendment, there were some in Congress that believed the language required the exclusive jurisdiction of the United States over the child rather than sharing it with the authority of the parents' country of citizenship. It would appear though that the Supreme Court decided this issue pretty conclusively. In a case dating back to 1898, the Supreme Court ruled that a child born to aliens that lawfully reside in the United States was a citizen.
The Supreme Court did not consider whether a child born to illegal immigrants (i.e. aliens not lawfully residing in the U.S.) is also citizen. Some argue that the distinction is without meaning because an alien is an alien regardless of lawful residency and is subject to both our authority as well as the authority of his or her nation of citizenship. Others may argue that lawful residency is a crucial distinction because they are enjoying and submitting to a wider scope of United States rights, privileges and obligations (i.e. United States jurisdiction or authority) than an illegal alien by virtue of their submission to the lawful process of seeking permanent resident status.
So who is right? Like many answers to legal questions, the answer is "it depends". In this case, it will likely depend on how the Supreme Court will interpret the meaning the "subject to the jurisdiction thereof" language.
Feel free to post comments or questions.
