Given next Thursday’s oral argument involving the lower court blocks on the implementation of President Trump’s birthright-citizenship Executive Order, now is a good time to remind ourselves of where things stand, and where they will likely go. As I (and my frequent co-author Jason Mazzone) explained in a Verdict column two months ago, President Trump’s Executive Order would deny automatic citizenship to children born within the United States if, at the time of birth, the mother was present in the United States either unlawfully or temporarily, unless the father was, at that time, either a U.S. citizen or a permanent resident.
As Jason and I argued in detail, this Executive Order, which ostensibly seeks to implement the Fourteenth Amendment, runs afoul of the plain language of Section One of that Amendment, which guarantees U.S. citizenship to “all persons born in the United States” (that is, within the United States and federal territories in the process of becoming states) and who are “subject to” the “jurisdiction” of the United States (that is, are persons over whom the United States does in fact assert the plenary power to govern, but not persons, such as children of foreign dignitaries and some Indians, over whom the U.S. disclaims any such power). In particular, as a textual matter, the Executive Order, which focuses on the status of the parents at the time of birth, ignores the fact that Fourteenth Amendment mentions only the child who is born, not the parents at all, and the fact that the words of the Fourteenth Amendment require only that the child be “subject to” U.S. jurisdiction, not anything about the theory on which the U.S. legitimately asserts power over her. In addition to flouting the language of the Fourteenth Amendment, the Executive Order contradicts the historical understandings and practices that led into and ensued from the Fourteenth Amendment (which reflected an American adoption of the English common-law jus soli —“right, or law, of the soil”—rule that persons born within England are English subjects, period), and it also contradicts consistent precedents, from the Supreme Court as well as the political branches of the federal government, over the last century-and-a-half. For these reasons, all the lower courts that have examined the Order have found it to be unconstitutional, and have enjoined its operation. Some of the lower court rulings have put in place so-called “nationwide” injunctions that prevent the administration from moving forward with the Executive Order against any persons anywhere in the United States, and not just against the plaintiffs who filed suit, or persons in the state in which the federal court that issued the relief sits.
So what’s likely to happen after next week’s oral argument? For starters, don’t expect the constitutional merits of the Executive Order to be resolved, at least definitively, anytime soon. The primary issue on which the Court is hearing oral arguments is whether the injunctive remedies imposed by the lower courts thus far—especially the nationwide injunctions—are consistent with the remedial traditions of and limitations on federal courts. In fact, the United States Department of Justice (DOJ), which asked the Supreme Court to step in, is not requesting that the lower court blocks be lifted entirely, but simply that they be trimmed back to protect only the named plaintiffs (or others who will be born in the same states as the named plaintiffs), and that the lower court rulings be modified so that administration officials can continue “developing and issuing guidance explaining how they would implement the Citizenship Order in the event that it takes effect.” Interestingly, the DOJ does not even argue, at this time and in the matter currently before the Court, that it is likely to ultimately prevail on the merits of the constitutional challenges to the Executive Order. The DOJ certainly doesn’t concede the unconstitutionality of the Order, but it makes no effort at this point to refute the conclusions of the lower courts that the Order is most likely unconstitutional. In this regard, I should note that many of the lower court judges who have blocked the Order have been quite emphatic; one judge, in Seattle (a Ronald Reagan appointee), said: “I’ve been on the bench for over four decades. I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.”
Given all this, the action next week is likely to be more on the question of whether and when nationwide injunctions by single district court judges are appropriate, and less on the merits of the Executive Order. The topic of nationwide injunctions is itself an important one that is long overdue for the Supreme Court’s careful consideration. But there are two reasons I find it unfortunate that the Court may make law on the question of the permissibility of nationwide injunctions in the birthright-citizenship matter.
First, next week’s argument arises from an emergency application by the government; there has not been the normal process and timeline of party briefing, amicus briefing, leisurely consideration by the Justices, etc., that we usually rely on to generate the most thoughtful and coherent Supreme Court work-product. As cases such as Bush v. Gore and last year’s Trump v. Anderson and Trump v. United States all demonstrate, the Court’s craft suffers when the Court decides hot-button, politicized issues under a tight timeline and without the benefit of broad-based amicus and other input from knowledgeable folks beyond the parties.
Second, the birthright-citizenship setting is not necessarily representative of the other, common kinds of cases in which district court judges have granted (or denied) nationwide injunctions. As I have written, the issuance of nationwide injunctions by single judges (who have not even followed any class certification procedures that may impose discipline and restraint) can for a variety of reasons be problematic, but even a presumption against nationwide injunctions should not be absolute; there are some settings where national uniformity is needed even in the short run before the Supreme Court has definitively spoken, that is, where the general preference we might have for allowing an issue to percolate in different parts of the country may be overcome because having different rules operate in different parts of the nation for any period of time would itself be quite problematic. Birthright citizenship, which involves much more than a single fundamental right but rather implicates a key to all the rights, in the Bill of Rights and elsewhere, paradigmatically enjoyed by citizens, would seem to be one such setting. Having persons born on one side of a river that marks the boundary between two states be considered citizens, and otherwise identical persons born on the other side being denied citizenship (and the right to get a passport to travel internationally, etc., that citizenship carries with it), would generate all kinds of problems, including incentives to engage in an interstate “birth tourism” that might overwhelm hospitals in certain parts of the country. So even persons who are skeptical of nationwide injunctions generally might find the injunctions issued against the birthright-citizenship Executive Order—where the merits seem so lopsided and the importance of uniformity as to national citizenship seems so great—to be an exception to the general rule. To be sure, the Supreme Court after next week’s oral argument could permit the nationwide injunctions in the present cases even as it discourages them in other situations, but all things equal it is better for the Court to take up an issue in a setting that is more representative of the contexts in which the issue usually arises.
Does the fact that the DOJ isn’t arguing the constitutional merits of the Executive Order right now mean that the Court can’t say anything about them? Certainly not. The Court could decide that the likelihood of success on the merits should in some way factor into the appropriateness of nationwide relief. Or the Court could—and should—simply send strong signals (albeit in what might technically be dicta) about the constitutional invalidity of the Executive Order. Ordinarily, as noted above, the Court would want more process before opining on the merits, but the illegality of the Executive Order seems quite clear, and the palpable anxiety generated by the Order is undeniable. For these reasons, the Court would be well within its rights—and quite faithful to its institutional mission—to forcefully (if provisionally) tip its hand.
I say the illegality of the Executive Order seems quite clear because the more that people talk and write about the Order, the weaker the Order looks. In particular, in deeming non-citizens children born to foreign mothers who at the time of birth are legally—albeit temporarily—in the country, the order goes even further than arguments heard in recent years, including from several Republican presidential candidates, that children born in the U.S. to unlawfully present non-citizen mothers should not benefit from birthright citizenship. And the denial of citizenship to a U.S.-born child whose parent was lawfully in the United States flies directly in the face of the English common-law rule (which, as the Supreme Court pointed out in 1898 in U.S. v. Wong Kim Ark, was adopted by Americans in the decades prior to and during consideration of the Fourteenth Amendment) that explicitly confers citizenship to children born to visitors, or “sojourners.” As the Wong Kim Ark Court stated, pursuant to the English common law rule that undergirded the Fourteenth Amendment (and that also animated the Civil Rights Act of 1866):
every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors. . .
Defenders of the Executive Order argue that visitors, or sojourners, lack primary “allegiance” to the United States, so that their children should not benefit from birthright citizenship. But that reasoning fails for several reasons. First, it conflicts with the English common law incorporated into the Fourteenth Amendment, discussed above. Second, it ignores the text of the Fourteenth Amendment that focuses on the child, not the parents. Third, it ignores the fact that Confederate rebels—who certainly weren’t allegiant—were nonetheless protected by Section One of the Fourteenth Amendment, as Sam Desai has demonstrated and as Jason and I discussed two months ago. And fourth, it doesn’t work even on its own terms because permanent resident aliens (whose U.S.-born children are citizens under the Executive Order) still have allegiance to their countries of origin; indeed, they remain citizens of their countries of origin until and unless they go through the citizenship process here (which many permanent resident aliens never do). If “subject to the jurisdiction” means “not subject to any other country’s obligations” as the Executive Order seems to posit, then permanent residents wouldn’t be any differently situated than sojourners. That is why the U.S. has (and these days is exercising) the right to deport permanent resident aliens. And yet even the backers of the Executive Order appreciate that the Fourteenth Amendment undeniably confers citizenship on the U.S.-born children of at least some non-citizen parents.
The argument that children of persons illegally (rather than lawfully but temporarily) present aren’t entitled to birthright citizenship is also foreclosed by constitutional text and history, but since the concept of illegal entry into the U.S. didn’t exist in its present form in the nineteenth century, the arguments are a bit different. Moreover, defenders of that part of the Executive Order seek some traction by pointing to a more general legal (if not constitutional) concept of restitution—that persons should not be allowed to unjustly benefit from their unlawful conduct. (Sojourners or students here temporarily have received no benefit that is “unjust,” since they didn’t do anything illegal in coming here—we invited and admitted them.) The unjust enrichment argument—that persons who come here unlawfully shouldn’t be made any better off than they would have been had they not come—doesn’t work for several reasons as well. First, the children born here (who, again, are the subject of the Fourteenth Amendment’s text) didn’t do anything that makes their citizenship “unjust.” Second, even if the law were to impute misdeeds of parents to children, which it doesn’t, the argument doesn’t work even as to those persons who entered the country unlawfully. Many of those unlawful arrivals were themselves children (who had no say in the matter) when they came, and so to punish their children down the road does not seem equitable. And many adults who enter unlawfully today—like illegally imported slaves after 1808, whose U.S.-born children were undeniable beneficiaries of the Fourteenth Amendment—do so because they were involuntarily trafficked into the U.S. Finally, even as to adults who chose to enter the U.S. unlawfully, although we reserve the power to deport them, we don’t as a general matter think we can treat them as badly while they are here as they may have been treated had they stayed in their home country (subjected, say, to cruel or unusual punishment or religious persecution), on the ground that they shouldn’t benefit from their intentionally illegal presence here.
But even if one were to conclude (wrongly) that the U.S. could deny citizenship to U.S.-born children of persons who intentionally entered the U.S. illegally, the Trump administration’s Executive Order would still have to be struck down in its entirety, because its provisions related to sojourners can’t be severed from those related to persons here unlawfully. To see this, we must look at how the Order it written. It provides that citizenship should not be recognized for a person born here:
(1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
For starters, the Order, interestingly, does not contain a severability clause that directs courts to try to save parts of the Order if others are deemed unconstitutional. But courts can, at least in the statutory context, undertake severability analysis even in the absence of a clause, provided they can excise the invalid parts of an enactment and spare the permissible parts without having to rewrite the measure. (I know of only one case in which a majority of the Court discussed the concept of severability in the context of an executive order; in that opinion the Court assumed, but did not hold, that severability principles from statutory settings fully apply to executive orders as well.) In the present case, if we excised the part beginning with the words “or (2)” (which relates to sojourners), the remaining part of the Order would deny citizenship to a U.S.-born person
(1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth
But this residual provision, if allowed to stand freely, would itself raise profound and likely fatal equal protection problems; it would treat mothers differently from fathers. How? The child of a mother who is here illegally is granted citizenship only if the father is a citizen or permanent resident, but the child of a father who is here illegally is granted citizenship so long as the mother is here lawfully (regardless of whether she is a citizen or permanent resident). That is because if a mother is here lawfully, then provision (1) doesn’t apply at all (its trigger being a person’s mother’s “unlawful[]” “presen[ce]” in the United States), and citizenship of the child is not denied. Thus, a lawfully present (but not long-term resident) father does not get to have his child automatically recognized as a citizen, but a lawfully present (but not long-term resident) mother does get to have her child so recognized. In that way, legally but temporarily present mothers and fathers are treated differently. And for the Court to fix that unequal protection would require that it rewrite the Order more or less from scratch, not something the Court could legitimately do.
Speaking of the fathers, there is another way in which the Executive Order contradicts the historical understandings and practices in place at the time of the Fourteenth Amendment. The Executive Order defines the father as the “immediate biological progenitor.” Thus, the husband of a wife who during the marriage gives birth to a child but who is not the biological father of the child is not considered the father for purposes of the Executive Order. And yet in the mid-to-late nineteenth century, (probably) every state and the United States recognized that a child born during a marriage was, as a matter of law, the child of the husband of the marriage, regardless of biological paternity. In addition to the practical and social problems created by an Executive Order that would require figuring out who the biological fathers of various children really are, the Order flouts the understandings of parentage that reined during the time the Fourteenth Amendment was adopted, yet another problem for anyone who cares about history and tradition and originalism in giving meaning to the Constitution.
In a subsequent column, I will address yet other constitutional problems with the Executive Order, including ways that it ignores or conflicts with valid congressional enactments, dating to the mid-twentieth century, concerning birthright citizenship.
