On his first day in office, President Donald Trump issued Executive Order 14,160 (the EO), which denies birthright citizenship to any child born in the United States who does not have at least one parent who is a U.S. citizen or lawful permanent resident. So far, every judge who has considered the order has concluded that it is unconstitutional under the Fourteenth Amendment, which reads in part that “[a]ll persons born … in the United States, and subject to the jurisdiction thereof, are citizens….” We think those decisions are correct. We also think the EO is unlawful for another reason that has received far less public attention: it violates the federal birthright citizenship statute, 8 U.S.C. § 1401(a). In an amicus brief that we filed on Tuesday in the Fourth Circuit, we explain in detail why the EO violates that statute (and consequently why the EO should be struck down even without reaching the constitutional question).
Section 1401(a) was first enacted as part of the Nationality Act of 1940 and then reenacted twelve years later as part of the Immigration and Nationality Act of 1952. It provides that “a person born in the United States, and subject to the jurisdiction thereof,” shall be a “national[] and citizen[] of the United States at birth.” The statutory phrase “subject to the jurisdiction thereof” is a term of art that must be given its settled historical meaning as of the time Congress enacted the statute. Luckily, there is a voluminous paper trail that makes it very easy to ascertain what Congress meant by that phrase when it enacted the birthright citizenship statute in 1940 and again in 1952. Congress understood that phrase to codify a few very narrowly defined exceptions to a near-universal statutory guarantee of birthright citizenship for children born in the United States. Without question, it understood that the birthright citizenship statute extended to the two groups that President Trump has targeted: the U.S.-born children of temporary visitors and those of unauthorized immigrants.
What Congress Meant When it Codified Birthright Citizenship in 1940
The 1940 Act was initially drafted by an interdepartmental committee of representatives of three federal agencies: the Department of State, the Department of Labor (which at the time housed the Immigration and Naturalization Service), and the Department of Justice. The Secretaries of State and Labor and the Attorney General submitted the proposed legislation to Congress in June 1938 with the committee’s explanatory comments.
Their aim was to gather, update, and in some cases amend the scattered provisions of nationality law into a comprehensive code governing citizenship by birth, naturalization qualifications and procedure, and loss of citizenship. Several of the provisions governing loss of citizenship made distinctions between people who acquired citizenship at birth and those who acquired it through naturalization. Therefore clarity about who acquired citizenship at birth was essential. In other words, the birthright citizenship provision was not a symbolic gesture – it was an integral part of an intricate and carefully considered statutory scheme.
The 1940 Act was drafted and debated against a backdrop of decades of congressional, judicial, and Executive Branch actions that applied the Fourteenth Amendment’s guarantee of birthright citizenship to almost everyone born in the United States, including the children of temporary visitors and unauthorized immigrants. It was clear from the deliberations concerning the 1940 Act that the legislators and administrators involved in drafting and revising the bill drew on this common understanding of how birthright citizenship worked. For example, during a hearing on the bill, when one legislator asked whether the child born in the United States to a French couple in the United States on visitor’s visas would be a U.S. citizen, other legislators answered in the affirmative. (Like much of the legislative history, this exchange is not accessible online, but full citations for this example and the other examples that follow are provided in our brief.) Throughout the legislative record, birthright citizenship was treated as a given regardless of the immigration status or domicile of the parents. “It is the fact of birth within the territory and jurisdiction, and not the domicile of the parents, which determines the nationality of the child,” explained the drafters of the 1940 Act.
Deliberations over the 1940 Act were not the first time these mid-twentieth century legislators contemplated the contours of birthright citizenship. Just five months before passing the 1940 Act, the very same Congress that passed the Act also passed a private bill (a piece of legislation that applied only to specific individuals) granting legal permanent residency to four unauthorized immigrants, two parents and two of their children. The report on the bill called explicit attention to the fact that the parents’ third child did not require relief because she was a U.S.-born (and thus U.S.-citizen) child. Morris and Lena Hoppenheim were born in Europe and emigrated to Canada as children, where they met, married, became naturalized citizens, and had two daughters, Doris and Ruth. In November 1924, the four Hoppenheims came to New York for a visit and never left, settling in Brooklyn without obtaining immigrant visas. Their third child, Bernice, was born there in 1927. Congress’s deliberations on the case noted that Bernice, “born in the United States, is an American citizen.” Finding the facts of the case compelling, Congress granted permanent residence to the noncitizen members of the Hoppenheim family.
The 1952 Act
By the time Congress reenacted the birthright citizenship statute in 1952, legislators were even more familiar with the application of birthright citizenship to the U.S.-born children of unauthorized immigrants. A few months after the Hoppenheims were spared deportation, Congress passed a public law that allowed the Attorney General to grant the kind of relief that the Hoppenheims had obtained. Rather than a private bill, unauthorized immigrants could now seek “suspension of deportation,” the precursor to what is currently called “cancellation of removal.” The 1940 suspension statute required applicants to show “serious economic detriment” to a family member who was a U.S. citizen or lawful permanent resident, and required the Attorney General to report the facts of each case to Congress, including the information about the recipient’s family members who would face hardship as the result of their deportation. In the years leading up to the passage of the INA, Congress regularly allowed cases in which the Attorney General had suspended the deportation of unauthorized immigrants based on findings that the deportation of the noncitizen parents would harm their U.S.-born (and thus U.S.-citizen) children.
Consider a few examples:
- In 1941, the Attorney General reported the suspension of deportation of Jan and Mary Zarycki, a married Polish couple who “entered the United States unlawfully near Niagara Falls” in 1930 and then had a child in New York City in 1933. The Attorney General suspended deportation to avoid hardship to their “citizen minor child.”
- Also in 1941, the Attorney General reported on the case of Dimytro Iwasiuk, a Polish citizen who entered the United States without a visa in 1924. His wife was “also an illegally resident alien.” The Attorney General suspended deportation to prevent “serious economic detriment to his three children, all minors and native-born citizens of the United States.”
- In 1943, the Attorney General reported on the case of Benjamin Blum, a Polish citizen who entered the United States in 1924 “as a stowaway on a small boat without an immigration visa.” His wife, whom he married in Poland, was also “illegally living in the United States and … subject to deportation.” They had a “a child born in this country, now aged 10 years.” The Attorney General suspended deportation to prevent hardship to the “citizen minor child.”
In each of these cases – and many others – Congress allowed the suspension of deportation of noncitizen parents unlawfully present in the United States to avoid harm to their U.S.-born citizen children. In doing so, the Executive Branch and Congress demonstrated their shared understanding that such children were born “subject to the jurisdiction” of the United States and were entitled to citizenship by birthplace alone. The fact that the parents of these children were unlawfully present in the United States when their children were born was irrelevant to their children’s status as U.S. citizens.
And in case this wasn’t clear enough, a 1950 report by the Senate Judiciary Committee spelled it out. In deliberations that ultimately led to the passage of the 1952 Act, the Committee characterized parents’ national origin and immigration status as “immaterial” to the citizenship of their U.S.-born children. “The only exception, of course,” the Committee explained, “is that the person must be subject to the jurisdiction of the United States,” which has been interpreted to exclude only those “children born in the United States to parents in the diplomatic service of a foreign state.”
When Congress recodified the birthright citizenship statute in 1952, it built on decades’ worth of legislation, Executive Branch practice, and judicial precedent demonstrating a broad understanding of birthright citizenship for children born in the United States—one that did not depend on their parents’ immigration status, residence, or domicile. Perhaps no case better illustrates this consensus understanding around the time Congress enacted Section 1401(a) than that of Anastasios and Elizabeth Hintopoulos. The Hintopouloses were a married couple from Greece who were temporarily admitted as alien seamen in 1951. They overstayed their admission after discovering Elizabeth was pregnant. After their child was born, the couple sought suspension of deportation to avoid hardship to their minor U.S.-citizen child. The Attorney General and Congress ultimately granted them relief in 1959.
Over the course of eight years’ worth of federal proceedings concerning the Hintopouloses’ petition for suspension of deportation, their child was unquestioningly regarded as a U.S. citizen despite the fact that the parents’ unauthorized presence in the United States was a central fact of the case. The Supreme Court’s 1957 opinion in Hintopoulos v. Shaughnessey took the child’s citizenship as a given: “[T]he child is, of course, an American citizen by birth.” This was the consensus understanding of birthright citizenship that all three branches of government shared in the 1930s, 1940s, and the 1950s and that Congress codified in 1952.
All eyes will be on the Supreme Court when it holds oral arguments on Thursday. The justices will be focused on the authority of district courts to issue nationwide injunctions. However, that inquiry will require them to ask whether the plaintiffs are likely to prevail in their argument that Executive Order 14,160 is unlawful. The answer to that question should be clear – both because the EO violates the Constitution and because it violates a federal statute.
