Can the President of the United States abolish birthright citizenship by an executive order?  As a person who was not born in this country and who is about to have a child, this question hits close to home.    

The first sentence of the 14th amendment reads as follows: “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

The Issue of whether the 14th amendment grants citizenship to children born in the United States was directly addressed by the Supreme Court in the 1898 case United States v. Wong Kim Ark[1]., The Court analyzed the Common law history and understanding of the first sentence of the 14th amendment at the time it was adopted and held that:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The 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.

United States v. Wong Kim Ark, 169 U.S. 649, 693, 18 S. Ct. 456, 473-74 (1898) (emphasis added)

The President has said that the meaning of the 14th amendment phrase “and subject to the jurisdiction thereof” is an open question within the issue of birthright citizenship.  If the meaning of that phrase had not been addressed by the court then it would be possible to argue that the above quoted holding in Wong Kim Ark is narrow and the issue of birth right citizenship has not been fully addressed by the court.     

The court specifically addressed the phrase “in the United States and subject to the jurisdiction thereof” prior to reaching the above quoted holding.  The court noted that:   

The words “in the United States, and subject to the jurisdiction thereof," in the first sentence of the Fourteenth Amendment of the Constitution, must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well -known case of The Exchange; and as the equivalent of the words “within the limits and under the  jurisdiction of the United States," and the converse of the words, “out of the limits and jurisdiction of the United States," as habitually used in the naturalization acts. This presumption is confirmed by the use of the word “jurisdiction" in the last clause of the same section of the Fourteenth Amendment, which forbids any State to “deny to any person within its jurisdiction the equal protection of the laws." It is impossible to construe the words “subject to the jurisdiction thereof," in the opening sentence, as less comprehensive than the words “within its jurisdiction," in the concluding sentence of the same section; or to hold that persons “within the jurisdiction" of one of the States of the Union are not “subject to the jurisdiction of the United States."

United States v. Wong Kim Ark, 169 U.S. 649, 687, 18 S. Ct. 456, 471 (1898) (emphasis added)

As it can be seen from the quote above, the court directly addressed the meaning of the phrase “and subject to the jurisdiction thereof” in reaching its holding in the Wong Kim Ark case. 

In short, the Supreme Court has ruled that, with limited exceptions (children of foreign diplomats, enemies during open hostilities and children of Indian tribes owing allegiance to their tribes), birthright citizenship is guaranteed by the 14th Amendment to the Constitution.  The court would need to overturn the Wong Kim Ark case in order to hold that an executive order can abolish birthright citizenship. 

It appears unlikely that an executive order abolishing birthright citizenship would survive a legal challenge. 

If you need immigration services or have any questions please contact Julio Navarro at jnavarro@hoaglandlongo.com  or call 732.545.4717.

 

[1] United States v. Wong Kim Ark, 169 U.S. 649, 18 S. Ct. 456 (1898)