Donald Trump wants to issue an Executive Order fundamentally modifying how a U.S. citizen is defined. The 14th Amendment of the Constitution defines who is an American citizen. It states, “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. The debate centers on the definition of “subject to the jurisdiction thereof.”
It is unclear how far Trump’s proposed Executive Order will go. Or, even if he will issue one at all. Would it define that a U.S. citizen is someone born to one U.S. parent, or two U.S. parents or will it extend to those holding Green Cards, or Permanent Residents? Or, will the wording be: all who are legally in the country? If that is the case, then will those visiting the country on temporary tourist visas who have children be allowed to claim their children as citizens?
It is likely that Trump is focusing on limiting citizenship to children born to one, or two U.S. citizen parents and Green Card holders.
But the question is, can Donald Trump issue an order putting limits on a constitutional amendment?
Like everything in American jurisprudence, the answer lies on how the courts interpret Trump’s actions. “Legal scholars” argue from both sides: yes, Trump can do it, and no, Trump cannot do it. American laws are based on precedence as they evolved through different courts. What “subject to the jurisdiction thereof” means does not appear to be fully defined.
There is no debate that anyone born to U.S. citizens is a citizen. But does that extend to one U.S. parent and an immigrant as well? How about one U.S. parent and an undocumented parent? Or, how about two foreign parents legally in the country? If it extends to parents legally in the country, what legal statuses are acceptable? For example, Green Card holders or foreign visitors on tourist visas?
Clearly, the defining line is not as simple as it appears.
The problem lies within the words “subject to the jurisdiction thereof.”
What does that mean?
A common reading of the words would mean anyone in the United States because anyone – except diplomats duly authorized by the government – are subject to being arrested and tried for crimes within the borders regardless of their immigration status.
However, there are those that argue that “subject to the jurisdiction thereof” means anyone who has allegiance to the United States and no other nation. Thus, citizens of the country.
But here is the problem with this interpretation of the wordage. Owing allegiance to the United States is the nexus used by those who support the notion of the 14th Amendment recognizing only those born to American citizens as having the right to citizenship. Not owing allegiance to any other nation is the problematic part of this stance.
The U.S. Department of State defines citizenship under Section 101(a)(22) of the U.S. Code as someone who “owes permanent allegiance to the United States.” The Department of State goes on to state that “U.S. law does not mention dual nationality,” but although the U.S. does not prohibit anyone from holding more than one nationality, it argues that it leads to dual nationals owing “allegiance to both the United States and the foreign country.”
Applying the argument that the “subject to the jurisdiction thereof” refers to individuals who “owe permanent allegiance to the United States” then those with dual nationality, either by choice or by law, for example being born in another country like children of American diplomats, would lose the right to American citizenship because they have allegiance to other countries in addition to the U.S.
Many Americans of Jewish ancestry or religious adherence hold dual nationality with Israel and the United States. Does that mean that applying the strict definition of “subject to the jurisdiction thereof” now means that children of American-Israeli citizens must now go through the naturalization process to become American citizens? Is this what the White House wants?
Technically the official policy of the United States is to “discourage” dual citizenship but does not prohibit it. Most countries allow dual nationality.
Jus soli, or right of the soil is birthright citizenship. About 30 countries recognize citizenship by birth. Only two of the 30 countries are considered advanced economies, according to the International Monetary Fund. They are Canada and the United States. Interestingly, most of the 30 countries are in the New World, with Colombia being the exception. Generally, no European country grants citizenship by birth.
Another issue that, interestingly, has been missed by the Trump supporters is the idea that the Constitution should be interpreted “strictly,” i.e. as it reads. Trump nominated Supreme Court nominees based on the idea of the strict interpretation of the Constitution.
So, what is the plain meaning of “subject to the jurisdiction thereof”? It comes down to who interprets it.
This is where the argument on both sides falls short.
Some argue that it means citizens who whole no allegiance to any other country while others argue that the language meant excluding children of diplomats and occupying armies. The Supreme Court has not ruled on this.
If a rule were to be applied, either through the legislative branch or through an Executive Order restricting one group, i.e. undocumented immigrants, from the language of the 14th Amendment without addressing other groups like dual nationals, then the issue violates other guarantees offered by the Constitution, namely the prohibitions against discrimination.
Can Donald Trump sign an Executive Order limiting jus soli for children of undocumented immigrants?
Yes, but it would not hold up to judicial review. Eventually, the Supreme Court would be forced to address it.
It will then likely be sent back to Congress, forcing it to address it by leaving it alone or forcing a Constitutional Amendment vote, which would not prevail, if it targets a minority.
In other words, Donald Trump just promised to do something he and the country knows is impossible.