Hana Callaghan is the director of the Government Ethics Program at the Markkula Center for Applied Ethics. Views are her own.
Birthright citizenship, or jus soli, is the principle that a person born in a country is automatically a citizen of that country. The United States is one of 33 countries, including Canada, that recognize citizenship based on place of birth. (We also recognize citizenship if one is born to a U.S. parent, regardless of where the birth occurred, under certain circumstances.) The concept of birthright citizenship was not always the case in the U.S. but became the law of the land with the ratification of the 14th Amendment. The Constitution now requires 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.
Recently, President Trump not only promised that he would overturn the concept of birthright citizenship, but he also assured Americans that he had the power to personally do so by executive order. In this, the president is mistaken.
Because they are in a position of trust we expect public officials to fulfill certain ethical duties like the duties of loyalty, accountability, fairness, and care. The duty of care requires public officials to properly carryout the responsibilities of their office. The Constitution spells out that for the president, the duty of care includes the obligation to “take care that the laws be faithfully executed.”
Trump may have reasonable concerns about birthright citizenship. He argues that it provides an incentive for undocumented immigrants to enter the country illegally, give birth, and then obtain benefits based on the status of their American child.
However, birthright citizenship is the law of the land. Even though politicians disagree on immigration reform, many on both sides of the aisle do agree that the president cannot unilaterally change U.S. law on matters of citizenship.
Trump is relying on a small group of legal scholars who argue that the term, “subject to the jurisdiction of the United States,” means that the citizenship clause of the 14th Amendment does not apply to those who are here illegally (although none of those who espouse this school of thought has argued that undocumented immigrants are not subject to U.S. jurisdiction if they break the law while on U.S. soil.) There are others who claim that the jurisdiction language refers to the children of foreign diplomats, who are not subject to U.S. law.
In 1898 in United States v Wong Ark Kim, the U.S. Supreme Court addressed the question of whether a child born in the United States to parents of Chinese origin who were not citizens but were present in the Country legally became a citizen at birth by virtue of having been born on U.S. soil. The law at the time prohibited Chinese residents born elsewhere from becoming citizens. The Court specifically noted that the child’s parents were not members of the diplomatic corps. In holding that Wong was a citizen, the Court said,
The Fourteenth Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.
Because this case had to do with immigrant parents who were here legally, it provides persuasive but not binding precedent for the Court as to whether children born to undocumented parents on U.S. soil are entitled to birthright citizenship. The Court has yet to address that specific question.
All that being said, there is another principle at play. For argument's sake, even in the unlikely event the Supreme Court were to hold that the 14th Amendment does not require birthright citizenship for the children of undocumented parents, the president does not have the power to enact immigration legislation by executive fiat. Article I, Section 8, Clause 4 of the Constitution grants Congress the sole power to enact legislation regarding who shall be able to become a citizen. Pursuant to this constitutional authority, Congress has enacted 8 USC 1401, which provides that a person born in the United States, and subject to the jurisdiction thereof, is a citizen of the United States.
Regardless of whether birthright citizenship is the right policy for our country, the president does not have the power to override either the Constitution or federal law by executive order. Executive orders are the tools that a President uses to direct the executive branch to implement federal law. The Supreme Court has held, “The president’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” By cavalierly ignoring the law of the land and the limitations on his authority, the president is ignoring the obligations of his office by violating his ethical and constitutional duty of care.