Month: January 2025

Among the flurry (blizzard) of executive orders President Trump issued on his first day in office was one purporting to deny U.S. citizenship to children of unauthorized immigrants born in the United States–and even to some children whose mothers were in the country legally. The executive order immediately triggered lawsuits challenging its constitutionality. The ink was barely dry when Federal District Judge John Coughenour (a Reagan appointee) enjoined its enforcement, finding the order to be “blatantly unconstitutional” and deriding attempts to defend it as mind-boggling.

Trump is unlikely to fare better as the litigation proceeds. His order clearly contradicts the Fourteenth Amendment. While expressing themselves less bluntly than Judge Coughenour, even many conservative legal pundits are highly skeptical of the order’s constitutionality.

Section 1 of the Fourteenth Amendment provides:

“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.”^[1]For good measure, a federal statute, 8 U.S.C. 1401, says the same thing.

This unambiguously grants U.S. citizenship to all individuals born in the United States, regardless of their parents’ immigration status, with a few minor exceptions not relevant here involving persons who are immune from the laws of the United States (e.g., foreign diplomats). The background and history of the Fourteenth Amendment reinforce the plain meaning of its language,^[2]See here. as do two Supreme Court decisions.^[3] See United States v. Wong Kim Ark, 169 U.S. 649 (1898), and Pyler v. Doe, 475 U.S. 202 (1982).

While the executive order is likely to remain a dead letter, the controversy over it offers two lessons that may have more lasting significance than the order itself.

Originalism isn’t just for conservatives

This case provides a good example of contrasting approaches to constitutional interpretation—originalism versus living constitutionalism—but with a twist.^[4]See here for background on these contrasting methodologies. The originalist approach, usually favored by conservatives and distained by liberals, adheres to the original public meaning of constitutional text. Therefore, this is an easy case for any self-respecting originalist. Judge Coughenour described it as the easiest case he could recall from his four decades on the bench.

The only possible defense of the executive order is, in effect, to invoke the living constitutionalism ordinarily embraced by liberals and ridiculed by conservatives. The argument here is that the original meaning of birthright citizenship must “evolve” to better address the current landscape of massive illegal immigration and arguable abuses of citizenship acquisition such as “birth tourism.”

After all, the Fourteenth Amendment’s birthright citizenship provision was designed primarily to overrule the reviled Dred Scott decision and affirm the citizenship of African Americans living in the United States; illegal immigration was a non-issue at that time. From this perspective, its sweeping grant of birthright citizenship could be considered anachronistic and unsuitable in today’s environment. In support of this, advocates for the executive order argue that the phrase “subject to the jurisdiction” of the United States can be read to limit birthright citizenship to persons who owe exclusive “allegiance” to the United States and thus exclude non-citizens living here legally or illegally.

This effort to reimagine the birthright citizenship provision rather than apply it as written has been roundly condemned and is unlikely to gain any traction with the courts.^[5]See here for more on these arguments together with a rebuttal by a leading conservative legal scholar. Originalism not only produces a liberal result in this case but provides a far superior legal rationale.

Even Trump needs to know when to fold

Many legal cases turn on how much credence and judicial deference to afford executive branch positions; thus, presidents and their lawyers can ill afford to squander whatever cachet they have with the courts. Administrations of both parties regularly test the limits of their authority and sometimes stake out far-fetched legal positions.^[6]See, for example, President Biden’s risible declaration on his way out the door that the Equal Rights Amendment has been duly ratified and is now part of the Constitution. But Trump takes this practice to a new level. Many of his actions, including several other recent executive orders, flout the law.

Sadly, Trump’s standard approach of bullying, intimidation, and personal attacks on those who resist him has served him well in the political arena. However, as the initial round in this controversy shows, these tactics won’t work with the federal judiciary. It’s hard to imagine any court, much less the Supreme Court, ruling for him in this case.

The worst approach Trump could take is to push the case through the judicial system and force his lawyers to defend the indefensible by pressing outlandish arguments. Doing so will surely end in defeat, and it could well cause them reputational damage carrying over to more serious cases. The most sensible thing Trump could do is settle for whatever political advantage he got from staking out his position on birthright citizenship, drop the legal defense of the order, and move on. Of course, Trump being Trump, he probably won’t.