I believe there is merit in analyzing the wisdom of America’s continued acceptance of birthright citizenship. It is a fair topic for a reasoned national conversation whether a person’s mere birth inside the U.S. territorial borders should automatically confer citizenship upon that person when the parents of that person are only within those borders as the exclusive consequence of illegal conduct. (I acknowledge that it is not politically fashionable to label the millions of people currently in the U.S. not in compliance with immigration laws as “illegal,” but it is what it is.)
My understanding is that the only two “developed” nations — Canada and the U.S. — recognize unqualified birthright citizenship today. (I also duly note that identifying countries across the globe as “developed,” “developing,” “underdeveloped” or “undeveloped” is similarly politically unfashionable.) Intelligent people can conclude that the U.S. can no longer economically and culturally afford to accept all comers. Intelligent people can likewise conclude that the U.S. cannot economically and culturally afford not to accept all comers.
Having said that, the policy reasons that may argue for eliminating birthright citizenship can never trump — pardon the pun — adherence to correct process and the rule of law. Being possessed of two law degrees from two respectable law schools and having taught law at two others, I’d gently suggest that, as head of the executive branch, President Donald Trump possesses zero power to make any unilateral determination to eliminate birthright citizenship.
The operative language that Trump seems to rely on to support the proposition that birthright citizenship is not countenanced by the Constitution — “and subject to the jurisdiction thereof” — may be ambiguous, of course. However it has, since the late 1800s, been consistently interpreted by the U.S. Supreme Court to confer citizenship upon all persons born in the U.S. (save American Indians, a problem remedied sometime later by statute).
Unless Trump is now embracing some odd derivative of the very Chevron Doctrine that he has previously condemned, it is the judiciary and not the executive branch that is empowered to interpret the provision’s ambiguity. It has done so without qualification. As a result, it is settled law that anyone born inside U.S. borders, regardless of how she or her got here, is a U.S. citizen and entitled to all of the rights and privileges attendant thereto.
If Trump or you or I want to change the settled interpretation of this language in the Constitution, we will have to do so the old-fashioned but legally recognized way, by constitutional amendment. By attempting an illegitimate end-run around this cumbersome but correct process, Trump reflects poorly on the office of the president and reminds me of President Barack Obama on a bad day, who from time to time endeavored to use his personal pen and by his signature alone achieve what he could not obtain legislatively. We should all keep in mind that Trump has condemned Obama publicly for engaging in the same sort of legal hocus-pocus Trump seems now to be attempting.
America deserves better. I expect better.
Brian C. Johnson
Brian Johnson, Sandy, has law degrees from the University of California Hastings and the University of Chicago and has taught law at the University of Tulsa and the University of Oklahoma. He is now a trial lawyer with a large Salt Lake City firm who focuses on antitrust and unfair trade practice matters.