Revenge of the Pen and the Phone

Trump’s Proposed Executive Order to End Birth Right Citizenship is Unconstitutional, But Will that Stop It?

22 min readDec 13, 2018

Few sections of the U.S. Constitution are richer or more uplifting than the “Citizenship Clause.” My eyes tear up a bit just reading the words:

“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The 14th Amendment fulfilled the Founders’ original promise of freedom for all, and enshrined the bedrock principle of equality before the law.

This first section was implemented to reverse the Dred Scott Supreme Court decision, which infamously denied citizenship to African Americans — even to freed slaves. Today, it is also widely understood to guarantee “birth right” citizenship to the children of immigrants — undocumented or otherwise. This right was first defended by the Republicans of Lincoln’s era and affirmed by the Supreme Court in 1898 when a case arose questioning the citizenship of a child of Chinese immigrants.

Home - National Constitution Center

The National Constitution Center in historic Philadelphia is America's most hands-on history museum. Located just two…

constitutioncenter.org

However, President Trump has turned an open-and-shut question of constitutionality into a political football — declaring that he will end birth right citizenship with the stroke of a pen. Executive orders, though not mentioned as a power granted in the Constitution, have increasingly been seen as a way for the President to do an end-run around a gridlocked Congress.

Nowhere has the debate over executive orders been more contentious than on the topic of immigration. In 2014, Barack Obama took the lack of bipartisan immigration reform as his cue to offer temporary legal status and an indefinite reprieve from deportation to the roughly 11 million undocumented immigrants living in the U.S. at the time. He did so via executive order. Libertarians warned of the dangerous precedent this would allow for future presidents. With Trump’s threat of an executive order to end birth right citizenship, we are seeing this fear confirmed.

Sheldon Gilbert, VP for Content and Development and a Senior Fellow for Constitutional Studies with the National Constitution Center, joins the show to discuss whether Trump’s plan is constitutional (hint: it’s not).

In the spirit of intellectual honesty, Gilbert accurately summarized the case against birth right citizenship for the Daily Mail: If you do not owe allegiance to the United States, some argue, you do not have citizenship. Justice Antonin Scalia was sympathetic to this argument — saying that those here illegally are not bound by this allegiance, even though they are still compelled to follow the laws of the U.S. However, many scholars from both sides of the aisle have pointed out the mental acrobatics required for this interpretation to hold up. Many slaves were brought here “illegally” before the Civil War, yet these were exactly the people that Section I of the 14th Amendment sought to naturalize.

Here’s a preview of my take:

I often ask people who oppose illegal immigration what part they object to — the “illegal” part, or the “immigrant.” If it is the illegal part, there is a simple solution: the U.S. should naturalize any and all undocumented immigrants who are willing to pledge their allegiance to the flag. If it is the “immigrant” part, then I have little more to say to the person, since the U.S. is a country built and constantly renewed by immigrants.

Transcript

The Battle Over Birthright Citizenship

Bob Zadek: The discussion that is in the news all the time is the discussion of immigration. The discussion of immigration goes on, on so many levels. There are the legal issues involved in immigration — the so-called “illegal” immigration. Immigration is discussed in relation to the principle of the law. What is illegal, what should be permitted regarding immigrants and the law. It is, of course, and most importantly, a constitutional issue.

Does Congress have the power to limit immigration into this country? There are also policy questions. Putting aside the law and putting aside for a moment the Constitution, what is the sensible and moral policy of our country regarding immigration? At the very bottom, there is the ugly racial, xenophobic, emotional battle around immigration and what is happening to American culture, whatever that may mean. We are going to try to bring some sense to this discussion or at least help our friends out there when they organize their own feelings and engage in discussions on the subject of immigration. it is important to know what the law in general is and, more importantly, what the Constitution teaches us about immigration and what aspects of immigration can be regulated by the government.

Here to help us sort out the somewhat complex but perhaps straightforward Constitutional implications of immigration than Sheldon Gilbert, this morning’s guest. Sheldon is the vice president for content and development, and is a senior fellow for constitutional studies with the National Constitution Center in Philadelphia, Pennsylvania. He has represented clients in perhaps a hundred cases at the United States Supreme Court. Prior to serving at the national constitution center, Sheldon was the director of the Institute for Justice Center for judicial engagement. Institute for Justice is, as my listeners know, an organization that I cannot support enough. I cannot read the work that IJ does without getting emotional, even sometimes moist-eyed. The Institute for Justice and the National Constitution Center are two of the most important organizations in our country and Sheldon has had deep associations with both. Sheldon, welcome to the show this morning.

Sheldon Gilbert: Glad to be here. Thank you so much for the generous introduction.

Bob Zadek: Sheldon, before we start discussing immigration, just a word about the National Constitution Center in general and Bill of Rights Day, which was yesterday.

Sheldon Gilbert: The National Constitution Center has its origin story during the Reagan administration, when Congress issued a resolution calling for an organization with the singular purpose to educate the American public about the meaning and importance of the Constitution. And that’s who we are and what we do. We are located on independence mall — right across from independence hall — where the Constitution was signed, and where the Declaration of Independence was signed. It’s a historic location, and from that location, we have a national platform for teaching the entire world about the Constitution.

Bob Zadek: Sheldon, tell us, I know we have a lot to discuss on immigration, but tell us about the interactive Constitution that you and your colleagues and Jeff Rosen, director or the president of the National Constitution Center has put together. Just tell us a word about the interactive constitution so our friends out there will know what a valuable resource that is.

Sheldon Gilbert: Thank you for asking. If you go to Constitution.org, or if you download it on a mobile app, you can take any provision on the Constitution and can look up the Constitutional text, read that text, and see what the top scholars on the right and the left say regarding it.

One of the things I love about this is that they each start with areas of agreement, where scholars on the right and left say, look, we might disagree about different things about this particular part of the Constitution, but here’s what we agree about, and then from there you see matters of debate. It’s really a place where you can go and hear both sides of the argument about the Constitution, and where you can see the scholar’s disagreeing without being disagreeable. It is terrific.

Bob Zadek: I don’t know of any other source where you can get both sides of an issue to help you organize your own thinking so that you don’t just get an echo chamber where your own views are reinforced. You get to read a clear, concise, well-reasoned explanation of the other view which will help either reinforce o perhaps change your view. You did great work at the National Constitution Center. It is a must on your list if you visit Philadelphia. It is a wonderful resource.

Okay, let’s roll up our sleeves and get into the hot button topic of immigration in general, and specifically, because immigration is far too complex to discuss in one show, the subtopic of immigration known in the media and in the public debate as “birthright citizenship.” Birthright citizenship is the idea that if there are illegal immigrants in this country and they have a baby and the baby is born physically within the jurisdiction of the United States, that baby is an American citizen even though his or her parents were here illegally and may be the subject of deportation. Sheldon, is that a fairly accurate starting point of the subject of birthright citizenship?

Sheldon Gilbert: That’s a good place to start. Birthright citizenship is the idea that anybody who’s born on us soil, whether your American citizens are legal permanent residents or not, you are an American citizen.

Origins of Birthright Citizenship

Bob Zadek: Donald Trump, when he was campaigning as a candidate in the primaries, said, “a woman gets pregnant, she’s nine months, she walks across the border, she has the baby in the United States, and we take care of the baby for 85 years. I don’t think so.” That’s what Trump said in 2015 when he was a candidate and discussing the issue. Obviously the concept of birthright citizenship didn’t just spring up in 2015 or 2014. It has a rich and important constitutional and legal history. So, Sheldon, where does the story of birthright citizenship start?

Sheldon Gilbert: It starts at the very beginning of the country, as soon as we adopted the Constitution. Now, the original Constitution that is drafted in 1787 mentioned citizenship but it is a little bit vague. It doesn’t explicitly say how somebody becomes a citizen, and it doesn’t explicitly state the benefits of citizenship, but there are all these hints in the original Constitution which show that there is this category of citizenship called “national citizenship.” So, for example, Article III states that the judiciary and the federal courts can have jurisdiction over controversies between citizens of different states. So there is an idea of state citizenship.

Article II, which deals with the President, says that only a natural born citizen of the United States, can become President. So there are hints that there is this category of national citizenship and there are hints that one way to become a citizen is through being born a citizen. But it’s still pretty vague and pretty murky. And it leaves a lot of open room for debate and interpretation, and it becomes a serious source of debate about how one becomes an American citizen immediately after the Constitution is adopted.

Bob Zadek: There wasn’t a lot of attention given to citizenship because there wasn’t a lot of profound benefits. If you were a citizen in 1789 or 1790, you weren’t all that special. You didn’t have this massive accumulation of rights and benefits, which non-citizens didn’t have. In fact, in the Founding Era, we were very inviting. We knew we needed immigration, so there was not much thought given to it, because as a legal matter, it was not all that important.

Sheldon Gilbert: For most people living in the early American republic, you are right. But for African Americans at the time, this was really important.

Bob Zadek: That was my next sentence. I was about to say, citizenship wasn’t important except when you get to the subject of slavery. We are not directly talking about slavery this morning, but it is essential in tracing the history of birthright citizenship to know that there was a huge number of people for whom citizenship and having the rights and benefits of being a citizen mattered a whole lot. So, of course, the subject of birthright citizenship is intertwined with the history of slavery in our country. So let’s start with the Dred Scott case as we work our way towards birthright citizenship. We can start almost anywhere, but let’s start with Dred Scott. What happened to Dred Scott and what is the relationship to the 14th amendment?

Sheldon Gilbert: Dred and Harriet Scott were slaves at risk of being torn apart as a family after the death of Dred Scott’s owner. Dred Scott did something that many slaves had done over the years. He filed what is referred to as a “freedom suit.” Basically, a type of lawsuit where a slave can go into a state court and in the south and apply for a legal basis for attaining freedom. For example, a slave might show that they had Native American ancestry, or a master freed him or her in their will, but the most common way of attaining freedom via these lawsuits was what Dred Scott did, which was to claim that their master took them into a free state.

The legal theory is called once “free, always free.” Once a slave steps foot on free soil, then even if they are brought back into slave territory, they are free. Dred Scott sued in Missouri State Court and claimed he was free by this theory. The State court ruled against him, however, claiming they were no longer applying theory. Scott then brings the argument before a federal court.

To be able to sue in federal court that court must have jurisdiction. One way in which a federal court gains jurisdiction is by diversity citizenship, where a citizen of one state sues a citizen of another state. Dred Scott argued that he was a citizen of one state suing a citizen of another state. The case goes up to the Supreme Court, which rules in one of the most controversial decisions in American history, that the federal court lacked jurisdiction to hear the case. The reason was that Dred Scott was not considered a citizen of the United States.

The court interprets the Constitution to say that any one of African descent who was descendants of slaves cannot be a citizen, regardless of whether you are free or not currently. If you were of African descent, you have no rights. They held that blacks “have no rights that the white man must respect.”

Bob Zadek: That decision was written by Chief Justice Taney. Most people acknowledge that it is probably the worst Supreme Court decision in its history. The opinion oozes hatred of blacks from every sentence. Taney was an avowed a pro-slavery justice. He was a pretty awful person and of course an equally awful Chief Justice.

So that was the law of the land for a while. The Civil War occurs, and I don’t mean to discuss the civil war with one sentence, because we have a lot of work to do this morning on birthright citizenship, but after the civil war and we have the post civil war amendments. The 13th and 14th and 15th amendments. Everybody on in this country knows there is such a thing as the 14th amendment.

Post-Civil War Changes

Bob Zadek: Most people who know that there is a 14th amendment know it has something to do with slavery. The 14th amendment is perhaps one of the most important amendments in the history of the Constitution. We can spend the whole show and the 14th amendment, Sheldon, but let’s discuss the 14th amendment and its relationship to birthright citizenship. What does the 14th amendment, a civil war post civil war amendment, have to do with this morning’s topic of immigration in general and birthright citizenship specifically?

Sheldon Gilbert: After the civil war, the country is fractured and broken and there are a lot of different questions that have to be answered. One of the first questions that has to be answered is the status of these former slaves in the south? How do they kind of fit in to the fabric of the country politically, culturally, and socially. Are they going to be citizens? Are they going to be treated like native Americans? Are they going to be like Native Americans and sovereign? What do we do about the Dred Scott decision that said that anybody of African descent cannot be an American citizen? Out of that debate, which had been going on for a long time, we get the very first sentence of section one of the Fourteenth Amendment. Justice Gorsuch likes to say that the text of the Constitution is always a good place to start.

I agree. So I’m going to read that first sentence for you and then we can talk about what that sentence means. Section one of the, of the 14th amendment says, “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.” The purpose of that sentence, first and foremost, was to undo the Dred Scott decision and to wipe that off the books. But it does more than that. It creates a categorical rule for how one becomes a citizen of the United States.

So, the Fourteenth Amendment says, as clear as clear can be, that if you are born here, you are a citizen, case closed. That is the concept of birthright citizenship. There are qualifications, however. When Sheldon read that clause of the 14th amendment, it said, subject to the jurisdiction of the United States, which at the time related to foreign diplomats who was here on diplomatic business, and he has a child? That foreign diplomat would be subject to the laws of France and is not a citizen.

It would be silly and own intended for that diplomat to have now an American baby, not a French baby. So that was a carveout only for that very small subset of circumstances. I should also mention that if you were an invading army and you were here — and we never had an invading army except for the war of 1812 — and the wife of a soldier who was here had a baby, that baby is not an American.

Another exception relates to Native Americans. Before the 14th amendment was adopted, Congress adopted that civil rights act of 1866, which had a provision that basically said the same thing. Congress in that Act claimed that persons born or naturalized in the United States and subject to the jurisdiction thereof, except those two categories, as well as “Indians not taxed.” The Native Americans enjoyed a particular status as dependent sovereigns, so those were kind of the categories that most people were thinking of.

This is the key language that creates the heartburn that gets to the nub of what we’re talking about today. There are some scholars who say “subject to jurisdiction thereof” has to mean something more than “It has to mean that you are loyal and owe allegiance to the United States. That is where people question whether or not there is a loophole in birthright citizenship.

Bob Zadek: What was the post-Civil War, post-14th amendment history of this issue?

Sheldon Gilbert: I think the next biggest moment in the history of this story occurs in the 1890’s. The story of the American West really can’t be told without the story of Chinese immigration to the West. Chinese immigrants were instrumental in the building of the transcontinental railroad, for example. Our story picks up with a guy named Wong Kim Ark, who was born in San Francisco in 1873 to Chinese immigrant parents, and he works in the cook in San Francisco. When he’s about nine, Congress passes what’s called the Chinese Exclusion Act. And this banned more Chinese immigration and blocks the Chinese from becoming citizens. So when he is a teenager, he leaves the country to visit China, but when he returns to the US, immigration officials say he cannot come back into the country because he is not a citizen and is excluded from immigration by the Chinese Exclusion Act.

This case goes all the way up to the Supreme Court and the Supreme Court has to grapple with the 14th amendment section one for really the first time. Ark claims that his parents were immigrants, but since he was born in the United States he should be a citizen, and the court agrees. It holds that the 14th amendment is very clear in making him a citizen of the US.

The Current Dilemma: Children of Illegal Immigrants

Bob Zadek: So that should have resolved the issue. Why are we still talking about it today?

Sheldon Gilbert: That’s a great question. We go back to that language of “subject to the jurisdiction thereof.” And some pretty smart scholars, including a dear friend of mine, John Eastman at Chapman argues that this case does not really decide the issue because Ark’s parents were here legally, and did not illegally enter the country. So, this case does not answer the question of what to do with individuals who have entered the country illegally and then have children here. That is a different category.

John Eastman and other scholars have said that those individuals are in a different category. They are not subject to the jurisdiction of the United States in the sense intended by the 14th amendment because their allegiance does not run to the United States. They haven’t come here and gone through a process whereby they have given up their allegiance to their mother country. Actually, they have retained their allegiance to their mother country by coming here through unlawful means. And therefore, they are not subject to the jurisdiction of the United States.

So the question today is whether the 14th amendment has this loophole says that individuals who have not sworn allegiance to the United States through some kind of formal mechanism — whether that means getting a permanent resident visa or becoming citizens themselves — whether their children cannot be natural born citizens because the parents are not subject to the jurisdiction of the United States.

Bob Zadek: Even though the 14th amendment says nothing about this formality of swearing allegiance, it talks about subject to the jurisdiction of the United States, and of course, it would seem to me, and maybe I am not drilling down deep enough, that you are here in the country and therefore you are subject to our jurisdiction. If you commit a crime, you can be prosecuted. You are not immune like a foreign diplomat might be a foreign diplomat. A foreign diplomat can’t get parking tickets, but you can if you are here illegally. It is as if one is looking for, in my view, the slenderest of technicalities to try to find some wiggle room in the 1898 case, rather than just adhering to the plain language of the 14th amendment.

Sheldon Gilbert: That is the argument on the other side. You have some really interesting folks who are rebutting this. For example, Jim Ho, former clerk of Justice Thomas, a conservative who was appointed by President Trump. He’s taken a really close look at this and did a debate with John Easton about this issue.

He published a great op-ed in 2011 in the Wall Street Journal and said that “subject to the jurisdiction thereof” has to mean that you are legally required to obey US law. The only exception to that are, as you said, diplomats. If it doesn’t mean that then it is an exception as well as the rule. Anybody who comes into the country illegally, if not obligated to follow the law and not subject to the jurisdiction thereof, creates a huge problem for the enforcement of any law, not just immigration laws for those individuals. So if we accept that “subject to the jurisdiction thereof” means allegiance or loyalty, so that you don’t have to follow the law if you are not allied with the U.S., then it really puts us in a topsy turvy world.

Bob Zadek: Let’s take a step back. As you mentioned in your introduction to the topic that the Constitution had really very little to say about immigration and citizenship, and then Congress passes the Chinese Exclusion Act. In the end of the 19th century, Congress starts to become active in legislating quotas concerning who can come to this country. But does Congress have the enumerated power to legislate on this issue at all?

Sheldon Gilbert: This is a really interesting question. As you know, we have a federal government of limited and enumerated powers. Unless the constitution spells out that Congress has a particular power, Congress doesn’t have that power. Well, nowhere does it say in Article 1 that Congress has the power to regulate immigration. If it doesn’t exist, then congress does not have the power to regulate immigration. That doesn’t mean that the states don’t have power to regulate immigration. The state of Texas might very well have power to regulate immigration.

But where does congress get the power to regulate immigration? Scholars argue that it would be surprising to have this immense power to regulate immigration not included and be implicit when the Framers of the Constitution included much more basic powers that seemed much less important in the list of enumerated powers, such as the power to operate post offices.

In response to this argument, there are those who argue that the Constitution does give Congress the power to regulate immigration. They point to a number of clauses that are exist. For example, Congress has the power to establish a uniform naturalization process. Naturalization is the process by which somebody can become a United States citizen. The argument is basically that if Congress has the power to make somebody a citizen, then it must have the lesser power to decide who can come into the country to be eligible for citizenship.

Complicating Moral Questions

Bob Zadek: While it is of great importance to understand what our Constitution and its history tells us about this subject, you can’t ignore that we are human beings and we have a moral existence. You cannot ignore what our country’s laws should be with regard to illegal immigration.

And of course, many libertarians, including myself, believe that travel and the right to travel freely is a right that everybody has purely by dint of being a human being, subject of course, to reasonable limitations, such as when there is disease or somethings like that. In general, you ought to have the right to travel.

I do not feel that there is anything special about me because of an accident I had nothing to do with — who my parents were and where I was born — that I am entitled to benefits of a country that somebody, because of the accident of their birth, are not entitled to, simply because they were not born here. That is a moral issue. It’s hard to debate that issue. But of course, that principle, which I believe the Founders had — that shining city on the hill principle — is certainly part of our rich philosophical history.

There is nothing in the Constitution that shows the Founders were Nativists. After all, they all were themselves the children of immigrants. Therefore they did not see it necessary to deny the right to come here in others. Back to the subject of birthright citizenship, have there been any other cases since the end of the 19th century that have spoken to this issue? And how do you think the Supreme Court has avoided the issue all this time?

Sheldon Gilbert: There is no case directly on point, after Won Kim Ark, that answers the question on whether or not the 14th amendment covers the scenario of children who were born of unlawfully undocumented immigrants. Now, why is that the case? Why has this issue never reached the Supreme Court? Well, in part, this is due to the fact that Congress has stepped in and has legislated quite a bit in this area. There are a host of federal statutes and executive orders and regulations that assume that birthright citizenship is the law of the land, and that the Constitution provides birthright citizenship for the children of undocumented immigrants.

So, even if the Constitution doesn’t say that someone who is the child of an undocumented immigrant is a citizen, there are a host of federal statutes and regulations that say that. So you don’t even get to that without getting past the legislative question of birthright citizenship. So that is one reason that this issue of the constitutional question hasn’t reached the Supreme Court, because you’d have to get rid of all of these statutes and regulations first before you even get to the question of the Constitutional dimensions of birthright citizenship.

Executive Orders: An Aside

Bob Zadek: Now, President Trump is not proposing a Constitutional amendment or a rewriting of the 14th amendment to alter its effect, and he’s not proposing necessarily legislation, but he is proposing to act by executive order. He is proposing to simply say, “I am the boss. You are not welcome here. You’re not a citizen if you are born as the child of illegal immigrants.”

So he is invoking another issue which has an interesting constitutional history, that is the subject of executive orders. Tell us about this issue of executive orders and where it fits into the conversation.

Sheldon Gilbert: I think it begins with the first sentence of the Constitution. After the preamble, article one section one says that “all legislative powers herein granted are vested in the legislative branch. The executive branch “executes” the law and the Judicial branch interprets it. However, the executive branch has now begun to make law in more circumstances. An executive order is basically the President telling a particular department that he has authority from Congress or from the Constitution to do “X”.

He just gives instructions about how he expects the law to be executed. The theory for the basis for executive orders is most commonly located in what’s referred to as the “take care” clause. The President has an obligation to take care that the laws are faithfully executed. And so the President says, I think that in order to faithfully execute the laws, the law needs to be interpreted in this way, or these are the types of actions that have to be taken. This can quickly become very controversial. In the Obama administration, there were lots of conservatives and Libertarians who said that the President was trying to achieve by executive order or executive action what he could not get done through Congress, which violates basic separation of powers. One of the most famous examples is in the immigration space.

When President Obama, when asked by a news reporter, why can’t you by executive order deal with the problem of dreamers — children that came to the United States when they were young — after the DREAMer Act didn’t pass, and he first said “I’m not a king, I can’t just wave a wand to do whatever I want,” but then he later issued in an executive action what he essentially could not pass through Congress. Now the shoe is on the other foot and you have a liberal saying, “Wait a second. Conservatives, you guys are using executive orders to change fundamental policies when you cannot pass it via legislative action.”

This is a boiling issue that cuts across administrations and is not going to go away anytime soon, but it is a really important question.

Bob Zadek: Assuming a President does cross over the line and legislates through executive order in violation of Article One of the Constitution, what can we the people do about it? What is the process by which the executive order is checked? The president tells ICE, here is what I want you to do starting Tuesday morning. ICE follows instructions. How does anybody undo that? What is there a mechanism by which you can executive orders?

Sheldon Gilbert: Congress can step in and deal with it, or you can go to court, and often these issues are resolved by the court, often by the Supreme Court.

Bob Zadek: We started with birthright citizenship, an issue which is in the news almost every single day, and we learned about the 14th amendment, we learned Constitutional history, we wondered if Congress has the power to legislate on immigration in general, and we also dipped our toes into executive orders. What an interesting debate, all flowing from the Constitution and birthright citizenship.

Related Shows:

Alex Nowrasteh: How Prop. 187 Turned California Blue, December 2, 2016
Alex Nowrasteh on Misconceptions about Open Borders, June 5, 2015
Let Them All In, May 5, 2013
The War on Chinese Restaurants with Gabriel Chin, August 6, 2017