Shortly before the midterm elections, President Trump stirred up a hornet’s nest in suggesting he could, by executive order, withdraw the right to citizenship at birth from children born in the United States while they and their parents were unlawfully in the country. The claim of executive authority is highly questionable. At the most, the president might be able to direct an agency to deny a benefit to such children where, under the agency’s governing statute, eligibility to the benefit is based on U.S. citizenship. Such a directive might prompt a lawsuit, but the decision on citizenship (since it turns on the meaning of the birthright citizenship clause of the Fourteenth Amendment, ratified in July 1868, or 8 U.S.C. § 1401(a), which mirrors its terms) would have to be made by the courts.

The framers of the citizenship clause plainly intended to entrench the nation’s repudiation of the Supreme Court’s 1857 Dred Scott decision that ultimately led to the Civil War. Henceforth, all children of former slaves and their descendants born in the United States would be treated as citizens of the United States and citizens of the state in which they were born. The clause is not limited to children of citizens, but also encompasses children of non-citizens, at least to the extent they are “subject to the jurisdiction” of the United States. The central issue in the current debate is whether the birthright citizenship recognized in the Fourteenth Amendment extends to children born in the United States of parents unlawfully present in the country at the time of birth. Are these children and their parents immigrants who are “subject to the jurisdiction” of the United States?

The commonly-provided answer to that question is “yes,” based on the view that all persons born in the United States are “subject to the jurisdiction thereof,” except for persons falling into two narrow categories: children of foreign ambassadors and foreign hostile alien soldiers occupying U.S. territory. While these exceptions are not explicitly found within the constitutional text, both enjoy a long historical pedigree. (A third exception for Native Americans born on reservations derives in part from the “Indians not taxed” language of the Constitution’s apportionment clause and Fourteenth Amendment.)

Ambassadors, while within the territory of the nation that received them, were (and are) widely considered to be outside the reach of the criminal law and regulations of the host country; the proper remedy for ambassadorial misconduct was (and is) diplomatic pressure or expulsion. Hostile aliens occupying territory here were not subject to the jurisdiction of the United States for a different reason; the occupation in theory at least temporarily ousted U.S. jurisdiction over the occupied territory such that children born on that territory were born outside the jurisdiction of this country.

But the category of persons at issue in the current debate — children of parents who, due to lack of documentation or other reason, have not been granted permission to enter and remain in the United States — is not the subject of any such ancient understanding. Children of unlawful immigrants are different from the offspring of ambassadors, in that they are certainly subject to the criminal laws of the United States; they are also, unlike children of enemy aliens occupying the territory, born within unencumbered U.S. territory.

On the other hand, are the children of unlawful immigrants subject to the jurisdiction of the United States simply because they and their parents are present on U.S. soil at the time of birth? It is almost as if the children of ambassadors not properly credentialed but born in the United States either before or after their parent’s credentials have been rejected by the Department of State are deemed subject to U.S. jurisdiction. Or the children of enemy aliens born in the United States before or after U.S. soldiers defeat an occupation force are deemed subject to U.S. jurisdiction. For purposes of the birthright citizenship clause, is it sufficient that the children are born within U.S. territory and do not fall within the historic exceptions?

Reliance on Wong Decision Misplaced?

Those who argue that birthright citizenship extends to children of alien parents not lawfully in the United States at the time of birth principally rely on the Supreme Court’s 1898 decision in United States v. Wong Kim Ark. We believe such reliance is misplaced. While the decision is replete with broad language arguably supportive of that position, Wong by its facts (and some of its language) is limited to children born of parents who at the time of birth were in the United States lawfully and indeed were permanent residents.  The most that can be said is that the question at issue — the applicability of constitutional birthright citizenship to children of illegal immigrants — is genuinely unsettled.

Wong arose out of the refusal of U.S. customs officials to permit Wong Kim Ark, a man born, raised, and domiciled in California, to return to the United States after a brief trip to China. Though Wong had successfully made a similar trip some years before, the intervening Chinese Exclusion Acts — a set of statutes that placed severe restrictions on the ability of persons of Chinese descent (and especially laborers) to enter the United States — were understood by customs officials to bar his reentry. Wong objected on the grounds that, even though his Chinese parents were not U.S. citizens, his birth in California made him a citizen by birth.

As the case came before the Court, it was “conceded that, if he [was a citizen at birth] . . . the acts of Congress . . . prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him.” The only question before the Court, then, was whether he was a U.S. citizen. Justice Gray, writing for the majority, framed the question presented:

Whether a child born in the United States, of parents of Chinese descent, who at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment.  (emphasis added)

The Court observed that “the necessary effect of the submission of this case to the decision of the court upon the facts agreed by the parties was to present for determination [that] single question.”

In concluding that Wong was a citizen at the time of his birth, the Court began with the premise that the Constitution “must be interpreted in the light of the [English] common law.” In common law, the question was not one of citizenship but of “subjecthood.” In Britain, “[t]he fundamental principle of the common law . . . was [that those born] within the allegiance” of the Crown were natural-born subjects. English law held that “allegiance and protection were mutual.”  In exchange for the protection the British Crown provided to those within its borders, those persons bore an obligation of allegiance to the Crown such that “every child born in England . . . was a natural-born subject unless the child of an ambassador . . . or of an alien enemy.”  Although the Wong decision seemed to equate subjecthood with jurisdiction — in the sense that the former encompasses the latter — the concept of subjecthood is complex and has no direct equivalent in American law.

The Court acknowledged in its Wong ruling that British principles of allegiance and protection were embodied in the Fourteenth Amendment: The 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 of enemies within and during a hostile occupation of part of our territory.” (emphasis added).

Despite some of the Court’s language purporting to offer a definition of the “subject to the jurisdiction thereof” wording of the citizenship clause grounded in the two historical exceptions, the case simply did not deal with the question of unlawful immigration.

The Single Question

The Wong decision must be read as a determination of “the single question” that had been put before it. That question appeared, to all intents and purposes, to assume the legality of the presence of Wong’s parents in the United States at the time of his birth, even though they remained subjects of China. They had entered and remained in the country by virtue of “the implied license under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants.” Indeed, the Court specifically noted that the Wong family had established “permanent domicil [sic] and residence in the United States,” the word “domicil” meaning “a place of permanent residence.” (Webster’s Dictionary 1828).

In this respect, the circumstances of Wong Kim Ark differ from the unlawful immigration context. Wong’s parents were clearly permitted to be within the United States at the time of his birth. A second respect in which the facts of the case differ is that, unlike for children of unlawful immigrants, there was no U.S. prohibition of Wong’s presence at time of his birth. His birth and presence within the United States was entirely lawful.

We are not suggesting that Wong clearly holds that children born in the United States while they and their parents are unlawful immigrants are not entitled to birthright citizenship under the Fourteenth Amendment. We are saying those making that claim need a stronger basis for it than the Supreme Court’s decision in Wong Kim Ark.

Some commentators see that stronger basis in footnote 10 in the Supreme Court’s 1982 decision in Plyler v. Doe, which references Wong approvingly for the proposition that the term “jurisdiction” referred to in the Constitution is used in a “predominantly geographic sense.” Plyler can offer at best limited support. That case focused on the equal protection clause rather than the birthright citizenship clause of the Fourteenth Amendment. The issue in the case was whether a state statute barring school funding to children of undocumented immigrants violated equal protection, not whether those children were U.S. citizens at birth. Moreover, the equal protection clause uses different language by referring to persons “within” rather than “subject to” a state’s jurisdiction.

Footnote 10 does refer to a 1912 work by a C. Bouve who “noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”  However, the issue of whether the birthright citizenship clause extended to children born in the United States of unlawful immigrants was simply not before the Plyler Court.  That issue was not settled by Wong, and nor was it settled by dictum in Plyler.

An Alternative Conception

What might be the basis of an alternative conception of what it means to be “subject to the jurisdiction” of the United States? A key may lie in the Wong decision’s extensive discussion of The Schooner Exchange v. McFaddon. The Schooner Exchange concerned the rights of American owners whose vessel had been seized at sea by agents of the Emperor Napoleon. Sometime after the seizure, the newly-named Balaou sailed into the port of Philadelphia under the flag of France. The original owners sought a declaration by a federal court that they, rather than France, rightfully held title to the ship.

The question before the Court in The Schooner Exchange was whether, in light of traditional principles of international law and comity, the courts of the United States could exercise jurisdiction over a vessel that, at the time of seizure, was in the service of a friendly foreign sovereign. While the Court ultimately held that a norm of customary international law precluded the exercise of jurisdiction, the justices expressly qualified that conclusion by stating that the norm’s application to the ship “could not be erected and supported against the will of the sovereign of the territory.” Because the “jurisdiction of the nation within its own territory is necessarily exclusive and absolute,” “all exceptions” to it “must be traced up to the consent of the nation itself.”

Similarly, the Wong decision acknowledged as “incontrovertible” that “the jurisdiction of every nation within its own territory is exclusive and absolute” and may only be qualified by the “consent, express or implied,” of the sovereign.

The central issue in the birthright citizenship debate is whether the scope of the jurisdiction referred to in the Fourteenth Amendment is simply a matter of territorial jurisdiction — is the child born within the territory of the United States, save for the historic exceptions, a citizen — or does the concept of jurisdiction necessarily include an element of consent of the United States to the entry and continued presence of the child and its parents on its territory?  Marshall’s reasoning in The Schoooner Exchange suggests the latter.

While the English decisions relied on in Wong do not address the issue of unlawful entry into the country of birth, there are some indications that English law extant at the time of the framing of the Fourteenth Amendment might have treated those categorically barred from entry into the nation as being outside its jurisdiction. For example, Lord Coke, in his decision in Calvin’s Case — a case referenced in Wong — observed that it “is nec coelum, nec solum, neither the climate nor the soyl [sic], but [allegiance] and [obedience] that make” one subject to the laws of a country. Thus, the analysis of whether one was amenable to the common law jurisdiction of English courts was not as simple as asking if the person was present in the realm.  Instead, the court had to inquire into whether obedience to the king could be imputed to the defendant by virtue of having received the king’s protection.

Lord Coke’s Two Cases

To emphasize the point, Lord Coke considered two cases. In the first, Shirley’s Case, a Frenchman “in amity” entered the realm and, upon arriving, joined others in committing treason against the Crown. Lord Coke observed that the Frenchman had properly been charged with treason because he had been “within the King’s protection” and thus owed the King a “momentary and uncertain” but nevertheless obligatory “local obedience.” But the result would have been different had there been a state of war between England and France; “in [a] time of war he [who otherwise would have been charged with treason] should not be arraigned, but ransomed,” subject to military rather than civilian law.

This dictum in Shirley’s Case might be read narrowly to hold only that the existence of a state of war between two nations places those who participate in the war outside of civilian law. But it might also be read to suggest that a person’s amenability to civilian jurisdiction was contingent upon their being present in the realm with the consent of the Crown.

In the second case Coke cites, Perkin Warbeck’s Case, a Dutchman, having declared himself the rightful heir to the English throne, traveled to England with the intent to commence war and take the throne. Upon his capture, the English justices concluded that Warbeck “could not be punished by the common law” but was executed under martial law. Rather than resting this conclusion on whether there was a state of belligerence between Britain and the Netherlands (Warbeck was not a Dutch prince or king and he was not acting on behalf of the Netherlands), the court held that the relevant fact was that Warbeck had never been under the “protection of the King, nor ever owed any manner of ligeance unto him.”

While Coke does not offer a direct explanation, his discussion of Shirley’s Case suggests that Warbeck’s Case turned on the unlawful nature of Warbeck’s presence within the country. Unlike Shirley’s initial presence “in amity,” Warbeck’s very setting foot on English soil as a pretender to the throne made him a criminal in the eyes of English law, one who had never claimed the protection of the king by virtue of his lawful presence in the realm. Thus, it was the illegality of Warbeck’s presence that placed him outside of the ordinary jurisdiction of English law.

The question of unlawful immigration is obviously far different from invasion. But these early English cases suggest that the ordinary jurisdiction of English law was limited by the legality of the person’s presence in the territory even where there was no formal war.

A Distinction on Jursidiction

One account different from ours, offered by Professor John Eastman, posits a distinction between “complete, political jurisdiction” and “partial, territorial jurisdiction” that he believes informs the Fourteenth Amendment. While to be subject to partial jurisdiction is just to be subject to American law, complete jurisdiction also requires that one bear full and exclusive “allegiance” to the United States.

Although Professor Eastman is somewhat unclear about how one is to discern who owes complete or partial allegiance to the country, in his view, neither the children of lawful temporary sojourners nor undocumented immigrants become U.S. citizens by birth. In support of this argument, he relies upon the Fourteenth Amendment’s ratification debates and the 1884 decision in Elk v. Wilkins, which held that Native Americans born on tribal land were not subject to the jurisdiction of the United States because they did not owe “direct and immediate allegiance to the United States.” Rather, their first allegiance was to the tribes, “an alien though dependent power.” For Eastman, Elk made into a holding what the Slaughterhouse Cases had observed in dictum: the children of “citizens or subjects of foreign States born within the United States” were not subject to its jurisdiction.

We have some doubts about Eastman’s argument. First, putting aside his discussion of Elk, we question his suggestion that “temporary sojourners” — those here without intent to remain permanently — bear no “allegiance” to the United States or that their alien status serves as a bar to their child’s being within the jurisdiction of the United States if born in this country. As noted above, the common law recognized that even those temporarily and lawfully present owed some measure of allegiance by virtue of the fact that they were under the protection of the sovereign. Persons born to sojourner parents in the realm of England were natural-born subjects, not aliens.

Wong itself appears to endorse this understanding of temporary allegiance: Foreigners present in the United States “are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here” (emphasis added). Because Eastman’s concept of allegiance is not tied to the protection offered by the sovereign to the lawful resident, he has difficulty explaining why the children of unlawful immigrants who were never within the territory of another sovereign are not subject to U.S. jurisdiction. Second, and more importantly, allegiance is too malleable a concept that could be applied in an unprincipled, arbitrary way to undo the central promise of the citizenship clause.

We believe the touchstone for understanding the “subject to the jurisdiction” of the U.S. qualification of the citizenship clause is whether the children born in the United States are lawfully in the country at the time of birth. This view comports with the Court’s repeated emphasis on the permanent residence of Wong and his parents, does not require a difficult examination of one’s “allegiance” or “subjecthood” — concepts foreign to our law and traditions — and is faithful to the core purpose of the citizenship clause, to include in the grant of birthright citizenship all who are lawfully in the United States.

IMAGE: Migrants receive food from volunteers at Centro San Juan Diego shelter in El Paso, Texas, in Nov. 2018. The shelter was housing migrants from Central America and Mexico who have sought asylum because of political instability. (Photo by PAUL RATJE/AFP/Getty Images)