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A Project of The Annenberg Public Policy Center

Trump Challenges Birthright Citizenship

Donald Trump says the issue has been “fully vetted now” and he was right all along: It would not take a constitutional amendment to end the practice of extending automatic citizenship to children born in the U.S. of parents in the country illegally. Trump told Bill O’Reilly of Fox News that changing the policy would require only an act of Congress. O’Reilly said he was wrong.

So who’s right? Most constitutional and immigration scholars are on O’Reilly’s side, but there are a few who agree with Trump. Ultimately, though, Congress would have to pass a bill and the Supreme Court would have to weigh in before we’d know for certain.

Trump has made taking a hard line on illegal immigration a centerpiece of his presidential campaign, and he has repeatedly questioned the U.S. policy of granting birthright citizenship to children whose parents are in the country illegally — children that Trump refers to as “anchor babies” (a term that some consider offensive).

Legislators have been introducing bills year after year aimed at “clarifying” the 14th Amendment to end the long-standing policy of birthright citizenship for children born to parents in the country illegally. None of the bills has ever been successful, and most constitutional scholars say such legislation wouldn’t work anyway because, they say, the change would require a constitutional amendment — a much tougher hurdle than a simple bill.

But in an interview on Fox News on Nov. 11, Trump insisted that the issue has “been fully vetted now” and that he was “right about it” all along —  that such a change would not require a constitutional amendment (starting at the 7:02 mark).

Trump on Fox News, Nov. 11: Do you remember when you said about the anchor babies that there is nothing you can do about it and I said yes, there is? I was right about it.

O’Reilly: No, you weren’t.

Trump: And frankly all we need is a simple — well, yes, I was. You don’t need a new amendment. All we have to do is go back to Congress and have a rather routine — it’s been fully vetted now, Bill. I was right on the anchor babies.

O’Reilly: The courts have ruled twice against the anchor baby stuff. You’d have to get a constitutional amendment passed to overturn that. You might be able to do it. You don’t have to but you just —

Trump: You don’t have to do a constitutional amendment. You need an act of Congress. I’m telling you — you need an act of Congress. Everybody thought you needed a constitutional amendment. You don’t need that.

The History

Birthright citizenship is embedded in the 14th Amendment, ratified in 1868, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”

The idea was to grant citizenship to recently freed slaves. But the 14th Amendment also forms the basis of the country’s longstanding policy of granting birthright citizenship to anyone born on American soil.

The birthright citizenship portion of the amendment was upheld by the Supreme Court in 1898 in the case United States v. Wong Kim Ark, which involved a man, Wong Kim Ark, who was born in San Francisco to parents who were citizens of China but legally living in the United States. (There was no such thing as illegal immigration at the time.) Some argue that while that settles the issue of whether the 14th Amendment grants citizenship to children born to parents in the country legally, it doesn’t necessarily settle the issue regarding children born in the U.S. to parents in the country illegally.

The only other Supreme Court involvement on the issue is a footnote in a 1982 decision in the case Plyler v. Doe, which dealt with the issue of whether states must provide education to children not “legally admitted” into the United States. In that case, Justice William Brennan, writing the majority opinion in the 5-4 decision, stated that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

As a matter of practice, the U.S. government has interpreted the wording of the 14th Amendment to mean that children born in the U.S., even to parents who are in the country illegally, are deemed citizens. And most constitutional scholars believe it would require a constitutional amendment to change that. Constitutional amendments are hard to enact. They must be proposed by a two-thirds majority in both the House and Senate, and then need to be ratified by three-fourth of the states.

But Trump is saying the law could be changed by Congress with a simple bill clarifying the 14th Amendment. And there is a small group of legal/constitutional experts who agree with him.

Among them are John Eastman, a former dean at Chapman University’s Fowler School of Law; Kris Kobach, Kansas’ secretary of state and a former professor of constitutional law at the University of Missouri–Kansas City; and Peter Schuck, a professor of law at Yale University.

All three seize on the language in the 14th Amendment that requires not just that someone be born within the United States, but also be “subject to the jurisdiction thereof.”

In a New York Times op-ed, Eastman, a founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, argued that ” ‘Subject to the jurisdiction’ means more than simply being present in the United States. When the 14th Amendment was being debated in the Senate, Senator Lyman Trumbull, a key figure in its drafting and adoption, stated that ‘subject to the jurisdiction’ of the United States meant not ‘owing allegiance to anybody else.’ ”

The Supreme Court has never ruled on the issue of whether children born to people in the country illegally are covered by the 14th Amendment. “It is long past time to clarify that the 14th Amendment does not grant U.S. citizenship to the children of anyone just because they can manage to give birth on U.S. soil,” Eastman argued.

Kobach, who also acts as “of counsel” for the Immigration Reform Law Institute, the legal arm of the Federation for American Immigration Reform, which calls for more restrictive immigration laws, argues that “subject to the jurisdiction thereof” means that only children “born to parents who have allegiance to no foreign power” are subject to the “complete jurisdiction” of the U.S. That language, therefore, does not cover children of parents in the country illegally, he argues.

In an op-ed for the Los Angeles Times, Schuck argues that the founders envisioned citizenship as a “consensual” endeavor, and that the phrase “subject to the jurisdiction thereof” is a “consensual idea.”

Schuck, Nov. 21, 2014: So what does “subject to the jurisdiction” mean? The Supreme Court long ago decided this phrase confers birthright citizenship only on those who are “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance” at birth. In that case, the court denied citizenship to an Indian born on a reservation but living elsewhere, because he was subject to tribal jurisdiction even though Congress held power over his tribe. (Indians became citizens only in 1924, by statute.) Later, the court granted birthright citizenship to the U.S.-born child of Chinese parents because her parents were here legally.

But most constitutional scholars disagree.

“These three professors are in a very small minority,” Evelyn Cruz, director of the Immigration Law & Policy Clinic at Arizona State University’s law school, told us via email. “The consensus by most scholars is that the constitution would need to be amended to achieve a reading opposite to Wong Kim Ark.”

Garrett Epps, a professor at the University of Baltimore School of Law and a constitutional law expert, says those who argue against the need for a constitutional amendment are wrong.

“I see no justification for this claim in the text of the Amendment, the debates that surrounded its Framing, or the history of its interpretation since then,” Epps wrote to us in an email. “It would be a radical new interpretation, squarely at odds with the vast majority of reputable scholarship on the Clause.”

Epps says the argument that the phrase “subject to the jurisdiction thereof” somehow runs counter to the intent of the framers of the amendment is incorrect.

In a paper published in the American University Law Review in 2011, Epps concludes after reviewing the legislative debates about the amendment in 1868 that the phrase “subject to the jurisdiction thereof” was “designed to exclude two and only two groups: (1) children of diplomats accredited to the United States and (2) members of Indian tribes who maintained quasi-sovereign status under federal Indian law as it existed in 1868.”

“In my opinion, the arguments used to question the natural interpretation of the birthright citizenship rule are at best strained and at worst thoroughly dishonest,” Epps said. “That being said, of course, if Trump became president and appoints Judge Judy and God knows who else, the Supreme Court is perfectly capable of deciding that pi equals three, and nothing I say could stop it.”

It should be noted that legislators have been trying for years to end birthright citizenship for children of people in the country illegally. Some of the bills implicitly assume the issue can be solved without a constitutional amendment.

Most recently, Rep. Steve King introduced H.R. 140, the Birthright Citizenship Act of 2015, which seeks — going forward — to amend the Immigration and Nationality Act “to consider a person born in the United States ‘subject to the jurisdiction’ of the United States for citizenship at birth purposes if the person is born in the United States of parents, one of whom is: (1) a U.S. citizen or national, (2) a lawful permanent resident alien whose residence is in the United States, or (3) an alien performing active service in the U.S. Armed Forces.”

Similar bills have been proposed for many years.

In fact, Democratic Sen. Harry Reid of Nevada once authored a bill, the Immigration Stabilization Act of 1993, that included an effort to “clarify” the 14th Amendment to exclude the granting of citizenship to children born of parents in the country illegally. (See Sec. 1001.)

Immigration Stabilization Act of 1993: … any person born after the date of enactment of this title to a mother who is neither a citizen of the United States nor admitted to the United States as a lawful permanent resident, and which person is a national or citizen of another country of which either of his or her natural parents is a national or citizen, or is entitled upon application to become a national or citizen of such country, shall be considered as born subject to the jurisdiction of that foreign country and not subject to the jurisdiction of the United States within the meaning of section 1 of such Article and shall therefore not be a citizen of the United States or of any State solely by reason of physical presence within the United States at the moment of birth.

Years later, Reid apologized for the bill, calling it the “biggest mistake I ever made” as an elected official and said, “I didn’t understand the issue. I’m embarrassed that I made such a proposal.”

Nevertheless, although some of the bills have garnered dozens of cosponsors, none of them has ever passed.

The issue gained further attention during George W. Bush’s presidency after Yaser Esam Hamdi was taken prisoner in Afghanistan as a foreign combatant before it was discovered that he was a U.S. citizen, born to Saudi parents in Louisiana.

A report from the Congressional Research Service published in 2005 tracks the history of the debate over the issue of citizenship conferred to children born in the U.S. to alien parents, but offers no conclusive opinion about whether a change would require a constitutional amendment or simply an act of Congress, as Trump argues.

“One could argue that Congress has no power to define ‘subject to the jurisdiction’ and the terms of citizenship in a manner contrary to the Court’s understanding of the Fourteenth Amendment. …,” the CRS report says. “However, since Congress has broad power to pass necessary and proper legislation to regulate immigration and naturalization under the Constitution [Article 1, Section 8] arguably Congress has the power to define ‘subject to the jurisdiction thereof’ for the purpose of regulating immigration.”

Unless or until one of those bills were to pass — and the law were challenged in the Supreme Court — we can’t know for certain whether Trump is right. But it is a speculative idea, and certainly not one that has been settled legally.