Trump issues new executive order narrowing birthright citizenship despite Supreme Court defeat

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White House Appears to Defy Supreme Court on Birthright Citizenship

The White House appears to believe it can circumvent a Supreme Court ruling by misrepresenting its previous legal defeat and attempting to achieve the same objective through alternative means.

President Donald Trump issued an executive order on Thursday purporting to narrow the scope of birthright citizenship, just two months after suffering a significant defeat on the issue at the Supreme Court. The order’s text claims it targets “certain categories of children of aliens who do not fall within the rule of birthright citizenship as announced by the Supreme Court” in the June case Trump v. Barbara.

The Constitutional Foundation

The Fourteenth Amendment’s Citizenship Clause states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” For the past 150 years, the overwhelming judicial and scholarly consensus has held that anyone born on U.S. soil is a U.S. citizen, with the exception of children of foreign diplomats and a few other narrow exceptions. The Supreme Court affirmed this interpretation in the 1898 case United States v. Wong Kim Ark.

The Previous Legal Defeat

Trump issued an executive order in January that sought to deny citizenship to children born on U.S. soil to temporary visa holders or undocumented immigrants. In Trump v. Barbara, the Supreme Court struck down that order as unconstitutional.

Chief Justice John Roberts wrote for the court that the targeted children “satisfy both elements of the Citizenship Clause: they are ‘born … in the United States’ and ‘subject to the jurisdiction thereof.’” He added, “Under the Constitution, they are citizens at birth.”

Categories of U.S. Residents

Every person currently living in the United States falls into one of four categories:

• A U.S. citizen by birth or naturalization
• A lawful permanent resident (green card holder)
• Someone who gained entry with a temporary visa
• Someone who unlawfully entered the U.S.

No one disputes that the Citizenship Clause applies to children of U.S. citizens. The Supreme Court ruled that the clause also covers the last two groups, with few narrow exceptions. As the ruling implies, if the clause covers children of temporary visa holders, it must logically cover children of permanent residents as well.

The New Executive Order’s Reasoning

Trump’s new executive order interprets the court’s ruling differently. It claims the court merely held that the Citizenship Clause “extends the privilege of citizenship to children born to parents in the United States ‘for whom no extraterritorial fiction applies.’”

This language, taken from Roberts’s opinion, referred to the medieval understanding of diplomatic immunity. English kings could not expect the allegiance of foreign ambassadors on English soil because the common law “considered [them]—by a fiction of extraterritoriality—to remain on foreign soil and thus ‘under the ligeance’ of their home country.”

The White House appears to have taken this description as an invitation to invent new purported exceptions to the Citizenship Clause. The order claims to “identify, non-exhaustively, and prescribe action concerning certain categories of children of aliens who do not fall within the rule of birthright citizenship as announced by the Supreme Court.”

However, there is no evidence that Roberts and the majority intended for the executive branch to identify new exceptions, and there are substantial reasons to believe they intended to foreclose them.

Judicial Emphasis on Limited Exceptions

Chief Justice Roberts emphasized how limited the existing exceptions were at multiple points in the decision. He observed, “The ordinary legal meaning of the text of the Clause thus neatly captures the common law rule, with its broad reach and narrow exceptions.”

Justice Brett Kavanaugh, who only partially concurred with Roberts’s opinion, wrote separately to make a similar argument about new exceptions—the same argument now advanced by the White House. If that had been the actual ruling, Kavanaugh would not have needed to write his own opinion at all.

A Financial Analogy

Reading the executive order brings to mind collateralized debt obligations (CDOs). Before the 2008 financial crisis, banks would gather large numbers of risky subprime mortgage bonds and repackage them into CDOs before selling them to other banks. Credit ratings agencies gave CDOs high marks because the bonds were considered less risky in the aggregate than on an individual basis. This was more or less true—until it very suddenly and dramatically wasn’t.