One of the most peculiar moments in the run-up to the 2018 midterms was a trial balloon, floated by President Trump and Vice President Mike Pence, to remove birthright citizenship from the children of illegal immigrants via executive order. This is not the first time in recent memory the issue of birthright citizenship for illegal immigrants has come up.
The Birth of an Idea
In 1996, there was a successful effort—opposed by then nominee Bob Dole—to insert language in the Republican platform calling for a constitutional amendment denying birthright citizenship to the children of illegal immigrants. Dole’s VP nominee, Jack Kemp, would later write an essay specifically arguing against this proposal for a book entitled Illegal Immigration: Opposing Viewpoints.
The distinction is that Trump is not proposing a constitutional amendment, and so his theoretical executive order raises three important and related questions. First, is it constitutional to change birthright citizenship at all without an amendment? Second, if so, is it constitutional to do so via executive order? And third, is changing birthright citizenship policy actually in the U.S. national interest? My answer to these three questions are, respectively: maybe, absolutely not, and probably not.
On the issue of birthright citizenship and constitutionality, the key phrase in the Fourteenth Amendment is that birthright citizenship will be granted to those born in the United States and “subject to the jurisdiction thereof”. It is clear that this last line was meant to exclude the children of diplomats, and until 1924, children born to sovereign Native American tribes were also excluded. Whether the precedent applied to the children of parents who entered the country illegally wasn’t an issue the amendment’s drafters discussed, since the first laws restricting immigration had not yet been past. Ultimately, in a footnote to a 1982 Supreme Court decision, Justice William Brennan wrote that, in the view of the majority, illegal immigrants were subject to the jurisdiction of the United States.
From a pure constitutionality perspective, then, that is the controlling precedent, though I suspect constitutional scholars might vehemently disagree as to whether that precedent should stand. While it’s reasonably clear that legal immigrants have, by intent, placed themselves under the jurisdiction of the United States, it could be argued that illegal immigrants, by flouting the law, have deliberately placed themselves outside that jurisdiction. I’m not a constitutional lawyer, so can’t predict the outcome if such an argument were to be made, but I do know that, absent a very compelling reason, the Supreme Court tends to be very deferential to its own precedents.
The Proper Order
So, could Trump change policy by executive order? The answer to this question is a very firm and very clear no. First, even the 1996 Republican platform had the modesty to recognize that removing birthright citizenship would require a constitutional amendment. Second, authority to change policy on immigration and citizenship rests firmly with congress, which has exercised that power since at least the Immigration and Naturalization Act of 1790. The president, in short, can’t change immigration law with a pen and a phone. This argument should be familiar to Republicans, since it’s essentially the same one they made, quite rightly, against Obama’s 2012 Executive Order on DACA. Trump can’t, constitutionally, change citizenship rules by executive order, any more than Obama could, constitutionally, give legal status to DACA kids by executive order. So, even if you agree with Trump about ending birthright citizenship, or with Obama about regularizing the DACA kids for that matter, the proper procedure for doing so is via the congress, and on birthright citizenship, possibly the courts or the constitutional amendment process. If our system of government is going to keep working, it will require both sides to refrain from drastic and unconstitutional executive over-reach even when it fits with their policy preferences.
Why We Should be Interested
Finally, from a policy perspective, I think removing birthright citizenship is a bad idea. To be sure, there are costs associated with birthright citizenship, particularly financial costs for Border States. However, these costs are outweighed by the costs of eliminating the policy. There’s little evidence that lack of birthright citizenship deters illegal immigration. The French and Germans don’t have birthright citizenship, but there’s no evidence that this lack has deterred illegal migration across Europe’s relatively porous borders. What France and Germany do have, on the other hand, are massive guest-worker populations considerably more alienated from their host population than American immigrants. Since it is likely that eliminating birthright citizenship for illegal immigrants would also be followed by curtailing it for migrant workers, America would risk the creation of a permanent, alienated, non-citizen under-class.
Examining both western and non-western societies that already have such a class, it’s reasonable to conclude that creating large populations of non-citizens whose children born in country are also non-citizens damages the assimilative capacity of host nations far more than our current American illegal immigration mess. Bad as America’s immigration fights have been, and divisive as they appear in our current moment, France, Germany and the rest of Western Europe have it far worse, and lack of assimilation is an important factor in this difference.
Additionally, changing birthright citizenship would fundamentally redefine American citizenship, away from the commonly-accepted definition we’ve all embraced since the Civil War. As a conservative, I’m both temperamentally and programmatically opposed to mucking about with things for the sake of mucking about with them, particularly things, like our definition of citizenship, that have generally worked well. In the end, Jack Kemp’s skepticism about his party’s 1996 birthright citizenship proposal was well-founded.
It’s one thing to argue for a more skills and merit-based legal immigration system, or a stricter border security regime up to and including some form of E-verify, both of which make sense as part of an immigration compromise. But we ought not to change something as fundamental as our definition of citizenship based on the whims of a fleeting political moment. And in particular, we should not throw away constitutional processes and procedures, particularly for an idea whose benefit to our national interest is, at best, highly dubious.
A.J. Nolte is an Assistant Professor of politics at Regent University’s Robertson School of Government. In 2017, he earned a PHD from Catholic University of America. Previously, he worked for the Religious Freedom Project at Georgetown University and the Center For Complex Operations at National Defense University, served as an Adjunct Professor of politics at Messiah College, and taught at George Washington University, Catholic University and National Defense University. Nolte’s research interests include religion and politics, Christian and Islamic political thought, Christian minorities, comparative politics, tribalism and globalization. He lives in Virginia Beach with his wife Tisa and daughter Reagan.