The single most unconstitutional thing Trump did yesterday, explained

On Monday, his first day back in office, President Donald Trump issued a wave of executive orders. 

Some are ridiculous, such as an order purporting to rename the Gulf of Mexico the “Gulf of America.” Others are ominous, such as an order seeking to drastically increase the number of federal civil servants who can be fired at will. Many of the orders seek to implement the kind of harsh immigration policies that have always been at the heart of Trump’s political message.

The most alarming of these immigration orders seeks to strip millions of future Americans of their citizenship.

There isn’t even a plausible argument that this order is constitutional. The Constitution is absolutely clear that all people born in the United States and subject to its laws are citizens, regardless of their parents’ immigration status. The Supreme Court recognized this principle more than 125 years ago. 

Nevertheless, Trump’s order, labeled “Protecting the Meaning and Value of American Citizenship,” purports to deny citizenship to two classes of Americans. The first is children born to undocumented mothers, whose fathers were not themselves citizens or lawful permanent residents at the time of birth. The second is children whose fathers have similar immigration status, and whose mothers were lawfully but temporarily present in the United States at the time of birth.

Almost immediately after this executive order was released, pro-immigration advocates started naming prominent Americans who might not be citizens if this order were in effect when they were born — including former Vice President Kamala Harris. That said, the order does not apply to current US citizens, and is not retroactive: It only attempts to deprive “persons who are born within the United States after 30 days from the date of this order” of citizenship.

It is likely that immigration advocates will obtain a court order blocking Trump’s executive order soon — a group of civil rights groups, including the ACLU, already filed a lawsuit seeking such an order. And, because the Supreme Court has already ruled that birthright citizenship is the law of the land, any lower court judge hearing that lawsuit should be bound by the Court’s 125-year-old decision.

But the current Supreme Court also has a 6-3 Republican supermajority, which recently, and surprisingly, ruled that the president is allowed to use the powers of his office to commit crimes. So there is always some risk that this Court will ignore settled law and rule in Trump’s favor.

The Constitution is absolutely, positively, crystal clear that Trump’s executive order is illegal

There are difficult questions in US constitutional law. The question of whether the federal government can deny citizenship to nearly anyone born in the United States is not one of them.

The 14th Amendment provides that “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.” 

“All persons” means all persons, including people with two noncitizen parents, or even people with two parents who are undocumented immigrants.

Of course, this amendment does contain one exception to its broad rule. Only babies who are “subject to the jurisdiction” of the United States when they are born are entitled to birthright citizenship. 

The word “jurisdiction” refers to an entity’s power to exercise legal authority over that person. A court, for example, has “jurisdiction” over a particular litigant if it has the power to issue binding rulings against that person. Or, as Judge James Ho, an exceedingly conservative Trump appointee to a federal appeals court, wrote in a 2011 op-ed, “a foreign national living in the United States is ‘subject to the jurisdiction thereof’ because he is legally required to obey U.S. law.”

Basically, if someone is present in the US at birth, they are — with just a handful of exceptions that I’ll explain below — subject to the country’s laws. They are therefore under US jurisdiction and, according to the text of the 14th Amendment, have a right to birthright citizenship.

Trump’s executive order posits that many children of immigrants aren’t under US jurisdiction. However, that creates a problem for the government. If Trump’s claim is correct, that would not simply mean that these children are not entitled to birthright citizenship. It would also mean that they would be free to ignore US law, and that it would be unlawful for the government to arrest, detain, or deport them.

In any event, the Supreme Court rejected Trump’s position in United States v. Wong Kim Ark (1898), which held that a man born in San Francisco to parents of Chinese descent was a citizen. Wong Kim Ark listed three categories of individuals who would not automatically become citizens even if they were born in the United States: “children of diplomatic representatives of a foreign state,” children “born of alien enemies in hostile occupation,” and some “children of members of the Indian tribes.”

The third of these three exceptions is no longer relevant: The Indian Citizenship Act of 1924 bestowed citizenship on “all noncitizen Indians born within the territorial limits of the United States.” But the two remaining categories — the children of diplomats and members of foreign occupying armies — both involve people who are not subject to US jurisdiction. Foreign diplomats typically have diplomatic immunity from the laws of the country where they serve, and hostile occupiers are not subject to US law because the entire point of such an occupation is to displace the US government.

Other noncitizens, by contrast, are still required to obey US law while they are present in the United States. So the 14th Amendment provides that their children are US citizens.

Trump’s executive order doesn’t even try to justify itself legally

It’s notable that Trump’s birthright citizenship order never makes a legal argument justifying the president’s decision to defy an almost universally accepted interpretation of the Constitution that was embraced by the Supreme Court nearly a century ago. Instead, it simply declares that “the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States” (which is true, because the children of diplomats do exist), then lists the categories of US citizens Trump wishes to target.

That said, some of Trump’s allies have previewed the kinds of legal arguments his administration might make to justify this order.

In a 2020 op-ed questioning Harris’s eligibility for the vice presidency, for example, Trump lawyer John Eastman (who is currently facing disbarment proceedings in California) made an argument similar to Chief Justice Melville Fuller’s dissent in Wong Kim Ark. 

According to Eastman, the 14th Amendment’s reference to people “subject to the jurisdiction” of the United States really means “subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily sojourning in the United States.” Eastman’s op-ed is brief, so he doesn’t fully explain his argument; it’s unclear why he thinks, for example, that temporary visitors to the United States are only partially subject to US law. 

But the most obvious problem with Eastman’s argument is that the Constitution does not say “subject to the complete jurisdiction” it simply says “subject to the jurisdiction.”

Similarly, in a 2018 op-ed, former Trump administration official Michael Anton claimed that the 14th Amendment does not apply to people who owe “allegiance” to another country. Though much of Anton’s argument is difficult to parse, he appears to believe that people who have sufficient ties to another country cannot have children who are US citizens at birth.

This argument, however, is precluded by Wong Kim Ark. The US citizen at the heart of that case was born to “persons of Chinese descent, and subjects of the emperor of China.” That is, his parents were found to have allegiance to China. Yet the Supreme Court held that this man was entitled to birthright citizenship nonetheless.