Could Trump end birthright citizenship using his treaty power?
On Jan. 20, President Trump signed Executive Order 14160, stating that the federal government will no longer “issue documents recognizing United States citizenship” to children born on American soil to parents who did not lawfully immigrate.
So far, four federal courts have blocked that order on a nationwide basis. The judicial branch’s history of dealing with the privileges of citizenship is complicated, including the suggestion that a president can use the treaty power under Article II of the Constitution to withhold citizenship from any child born on U.S. soil to a non-citizen.
Federal courts have historically reserved for themselves the last constitutional word when it comes to citizenship, for better or worse.
Dred Scott v. Sanford (1857), in which the Supreme Court purported to strip Black Americans of citizenship, is today considered perhaps the court’s lowest moment. Another low point was Mackenzie v. Hare (1915), in which the court upheld the Expatriation Act of 1907, automatically stripping citizenship from American women who married non-citizens. That law was fittingly repealed in 1931, partly as a function of women having since secured the right to vote.
In 1942, Congress revoked the citizenship of German-born engineer and Nazi sympathizer Carl Baumgartner under The Naturalization Act of 1940, which was thought to authorize Congress to revoke citizenship from those who demonstrated foreign allegiance. The court ruled that Congress had not established that Baumgartner’s pro-Nazi comments amounted to withholding allegiance, so Baumgartner kept his citizenship.
Texas-born Clemente Perez wasn't as lucky. After fleeing to Mexico to avoid military service in 1944, Perez surrendered to immigration officials and admitted to having voted in a 1946 Mexican election. The federal district court and court of appeals ruled that Congress was authorized by the Naturalization Act to strip Perez of his citizenship.
A divided Supreme Court agreed in Perez v. Brownell (1958). But the justices reversed themselves in Afroyim v. Rusk (1967), ruling that the “Constitution, of course, grants Congress no express power to strip people of their citizenship, whether, in the exercise of the implied power to regulate foreign affairs or in the exercise of any specifically granted power.”
Federal courts, on the other hand, have freely deprived individuals of the protections of citizenship when they have seen fit. For example, ex parte Quirin (1942) dealt with a group of Nazi submariners who docked off the East Coast of the U.S. but were apprehended before setting out on a planned nationwide bombing spree. One of those Nazis, Hans Haupt, was a naturalized citizen from Chicago. The Supreme Court ultimately approved a process that culminated in his execution without a civilian trial.
Similarly, Gaetano Territo, born to a coal-mining family in West Virginia, was captured by an American tank patrol in Italian army dress and found by the Ninth Circuit Court of Appeals to have lost the protection of citizenship when he signed up to fight against the U.S.
Yaser Esam Hamdi, born in Louisiana in 1980 but taken by his father to Saudi Arabia in 1982, was captured in an active combat zone in Afghanistan in 2001. Despite claiming to be an aid worker and denying any Taliban affiliation, the Supreme Court denied him access to federal court — a civilian privilege of citizenship — and instead subjected him to a kind of military tribunal.
The implied crux of Trump’s executive order is that the 14th Amendment allows citizenship to be bestowed on anyone born within U.S. borders only if they are, at the time, “subject to the jurisdiction” of the U.S. Because individuals who did not lawfully immigrate are not subject to or eligible for the protections of citizenship, the argument goes, their children are similarly not covered by the applicable 14th Amendment provision.
That concept seems to be in conflict with a Supreme Court precedent, but it finds some indirect favor in a dissenting opinion from the same case. In United States v. Wong Kim Ark (1898), the court ruled that an individual born within U.S. borders is entitled to citizenship despite his or her parents being ineligible for citizenship. Ark had been born in San Francisco to Chinese citizens who, at the time, were ineligible for naturalization due to an 1894 treaty between the U.S. and China. Ark regularly visited family in China and was denied reentry after one such trip on the basis that he was not a citizen. In a 6-2 decision (with one justice not participating), the court ruled that Ark was a citizen under the 14th Amendment.
But in dissent, two justices put forth reasoning that supports use of the treaty power to serve at least some of the executive order’s purpose. They argued, in essence, that if the president were to make a treaty with a foreign government that specifically provided that “subjects of [that foreign] government, although allowed to enter the U.S., shall not be made citizens thereof, and that their children shall not become such citizens by reason of being born therein,” nothing in the 14th Amendment could be read to invalidate that treaty. Note that the dissent was careful to point out that the president’s power to so restrict birthright citizenship would then require Senate approval of the treaty.
Presidential negotiation of treaties with Senate approval, consistent with Article II of the Constitution, to make ineligible for citizenship the children of citizens of particular countries, would be geopolitically delicate. But it might be less constitutionally contentious than interpreting the 14th Amendment by executive order.
One thing seems certain: Federal courts will have much more to say about Trump's executive order.
Alex Talel is an attorney who served as law clerk to Judge Jon O. Newman of the U.S. Court of Appeals for the Second Circuit and to Judge Sidney H. Stein of the U.S. District Court for the Southern District of New York.
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