The Birthright Citizenship Executive Order

Much has been written about President Trump’s executive order concerning birthright citizenship. I’ll add a few thoughts here.

First, this order did not tie the denial of birthright citizenship to the invasion order. Rather, it is far broader. A child born to any mother who is not lawfully present, or a mother who only lawfully present for a temporary period, would not be a birthright citizen. This position can be refined in the inevitable litigation.

Second, the order only applies prospectively to children born 30 days after the issuance of the order. But if this order is successful, there is nothing that would prevent this policy from being enforced retroactively. Trump would not have to denaturalize people. It would be sufficient to deny them documentation of citizenship.

Third, the order simply withholds the issuance of certain identity documents:

It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship . . . .

This order brings to mind Zivotofsky v. Kerry (2015). Justice Thomas’s concurrence found that the President has a “residual foreign affairs power” to regulate passports, but the President has no such power over “consular reports of birth abroad.” Perhaps one of the most significant exercises of this power was when the Lincoln Administration issued passports to Black Americans, notwithstanding that Dred Scott ruled that such people could never become citizens. Remember, Lincoln did not defy Dred Scott; he simply limited that ruling to the named parties. If Thomas is right, then Congress has no power, whatsoever, over passports. Would Trump argue that the President’s residual foreign affairs power over passports gives him any special authority to interpret Section 1 of the 14th Amendment? There may be something more here. I need to think about it some more.

By contrast, in Zivotofsky, Justice Scalia’s dissent rejected Thomas’s analysis.

The concurrence’s stingy interpretation of the enumerated powers forgets that the Constitution does not “partake of the prolixity of a legal code,” that “only its great outlines [are] marked, its important objects designated, and the minor ingredients which compose those objects [left to] be deduced from the nature of the objects themselves.” McCulloch, 4 Wheat., at 407. It forgets, in other words, “that it is a constitution we are expounding.” Ibid.

This is one of the rare cases where Scalia and Thomas disagree, and vigorously so, on an originalist question.

The ACLU challenged this birthright citizenship order in New Hampshire. And two dozen blue states, led by New Jersey, filed suit in Massachusetts. I guess it was determined the First Circuit would have jurisdiction over this claim. That makes sense, since the First Circuit has ruled over the status of Puerto Rico, which is adjacent to the insular cases. There is probably some favorable precedent there.

I watched as Trump signed this order. He did not seem particularly confident that he would win this case, as opposed to some of his other actions. The Court will almost certainly rule against Trump. But in the process, does John Roberts tell us what “subject to the jurisdiction thereof” actually means? Is it just the children of diplomats who are excluded? Who else is not covered? You can be sure Trump will respond accordingly. Indeed, maybe that is the point of drawing the categories so broadly. Any wiggle room that the Court leaves will be wiggled.

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