#WTH Birthright citizenship

And other constitutional problems

Note: My apologies, dear readers, for a long-ish absence. I’ve had the flu, and it’s been dreadful. Get your vaccinations, and avoid a trip to the ER.

Readers of a certain vintage will remember the Equal Rights Amendment, a failed attempt to amend the Constitution to “end” discrimination on the basis of “sex.” The window to ratify the ERA closed many, many moons ago, but when the President of the United States lives in a fantasy world, there’s no reason not to extend that fantasy to constitutional amendments. And so, on January 17, 2025, Joe Biden released a statement saying, “On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment. The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment. I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.” Why Biden waited four years to make this proclamation is anyone’s guess. Wanton disregard for the U.S. Constitution was likely a factor.

Fast forward three days, and Biden was old hat. But the lingering vapors of disregard for the Constitution still hung over the Oval Office, from which emanated yet another effort at Constitutional sleight of hand: Protecting the Meaning and Value of American Citizenship. Issued on his first day in office, the Presidential order essentially nullified what is commonly called birthright citizenship, or the commonly interpreted legal view that anyone born in the United States is a United States citizen. That “right” (quotes courtesy of DJT) is granted by the Constitution’s 14th amendment, itself a reaction to the infamous Dred Scott decision that deemed Africans ineligible for U.S. citizenship.

Trump’s diktat — not how you amend the Constitution, btw — quickly brought condemnation, legal mockery, and the usual dramatis personae of ex-epidemiologists, ex-aircraft mechanics, and ex-counterterrorism gurus that populate the X platform, now starring as constitutional scholars. Yes, the newly minted proto-Justices assured us, the ambiguity in the 14th amendment — “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” — is how Donald Trump can deny birthright citizenship to illegal aliens who are… dramatic pause … not subject to the jurisdiction thereof. Except if they murder or rob someone here; then they are. Right?

Sigh.

Here’s the thing: Like so much of what Donald Trump wants to do, the spirit that moves it feels right on, it’s the means that are so problematic. As you will hear from our pod, and in some contrast with our guest, the marvelous AEI legal scholar Adam White, we are not big fans of birthright citizenship, anchor babies, birth tourism, or anything else that smacks of exploitation of this constitutional loophole. Even more unsavory than the run-of-the-mill exploitation that legal tourists embrace, are the illegal aliens who give birth to children after having traveled to the United States in violation of our laws.

Per the Center for Immigration Studies, its preliminary findings mark between 225,000 to 250,000 U.S. births to illegal immigrants in 2023, or about 7% of total births in the U.S. that year. Multiply that by four Biden years, and that’s a million babies born to illegal aliens in the United States, each one of whom can claim a passport. And yes, that is wrong. But wrong is not the same as unconstitutional. And just because a president doesn’t like something, doesn’t mean he can unilaterally declare it’s not the law of the land.

Perhaps, like a fox, Trump was merely aiming to introduce the issue into the court system, with a view to the Supreme Court potentially overturning the birthright under the 14th Amendment. Seems unlikely, but maybe. But the President’s unilateral constitutional revisionism is not a solitary aberration, a lone event in an otherwise exemplary White House adherence to the rule of law. And it didn’t begin with DJT.

We talk to Adam about Barack Obama’s seminal decision not to enforce immigration law when it came to children of immigrants who had arrived before a certain date, Deferred Action for Childhood Arrivals (DACA). Successive courts have suggested that non-enforcement of the law in instances chosen by the President of the United States is unlawful. Illegal. And you know what the remedy is for an unlawful act by the President of the United States? Impeachment, conviction, and ouster from office. Congress didn’t do that.

The sleight of hand Obama employed, successfully, was a simple one: He declared that the government’s resources were simply too stretched to enforce deportation orders against so-called Dreamers. In short, he ignored the law, and in so doing, set a precedent that would be used by Donald Trump, Joe Biden (aggressively), and now Donald Trump again.

This willful obstruction of the solemn oath every president takes to “faithfully execute the Office of President of the United States, and […]to the best of [his] ability, preserve, protect and defend the Constitution of the United States" is not something to pass over lightly. But it has now become a habit. Court says you can’t write off student loans? Meh. Court says anyone born in America is a citizen, bleh. Where does it end?

Donald Trump is right that the rules are cumbersome, and that there is a deep state that seeks to undermine the elected leaders of the country. But this is a country of laws, and the right choice is to try to change the law, amend the constitution, seek Congress’ support, and do what you solemnly swore. It’s not a joke.

HIGHLIGHTS

How unusual are Trump and Biden’s attempts to amend the Constitution by presidential action over the past couple of weeks?

AW: We're accustomed to an era of presidential supremacy in our political process. But as you point out, the last few weeks have been just astonishing. They'd be even more astonishing if we hadn't been sort of slowly the constitutional frog the last several decades with this ever-growing scope of presidential power. This is really astonishing what we've seen.

Was there a tipping point where presidents stopped listening to Congress and the courts?

AW: Presidential power has been increasing for a very, very long time. But as I wrote for Commentary Magazine last year, there came a moment, I think it was the second half of the last term for President Obama, right after Republicans regained control of Congress and President Obama announced, you know, I have a pen and I have a phone and I'm going to use it. And you saw this sweeping effort to suddenly impose enormous new policies just unilaterally either through new regulations, Clean Power Plan, net neutrality and so on, or through non-enforcement of laws, DACA, the immigration laws. That seemed to me a tipping point of a kind, the moment when suddenly this last few decades of the growth of presidential power really a became the center of gravity without question in American policymaking. And of course President Trump tried to do some of that in his first term. Maybe the biggest example was when he announced he wanted border wall funding and he just wanted to sort of reallocate funds to a border wall himself.

And you saw members of Congress, Republicans in Congress cheering him on. But President Biden, I do think, took it to a new level. And furthermore, I think he came to recognize that these assertions of presidential power, even when thwarted by the courts, can be enormously successful politically, that picking a fight with the court is often a winning fight for the president, even if he technically loses the fight. So student loans are a classic example. President Biden announced this obviously illegal sort of permanent waiver of student loans. He loses resoundingly in the Supreme Court and as a number of our colleagues in other departments of AEI have documented, like Nat Malkus and Beth Akers, President Biden only doubled down with further student loan forgiveness under other statutes. And this announcement at the end of his term, the very last few days that the Equal Rights Amendment was somehow part of the Constitution, even though it's not been ratified by enough states, was really sort of the cherry on top.

How did President Obama’s actions on DACA preempt the sort of presidential actions we’re seeing today?

AW: After President Obama said for a year or two in his administration that he couldn't just wave a magic wand and give illegal immigrants legal status in the US, he finally found that wand. It was next to the pen on the phone and he started waving it, announcing that through a Justice Department memo and a DHS Department of Homeland Security memo that children, and eventually their parents too, who arrived in the US would not be subject to the full force of immigration law in terms of removing them from the US. It didn't make them citizens. It didn't give them visas, but it gave them this other sort of amorphous status by the mere fact that the law wouldn't be enforced against them. That's very hard for courts, let me just say off the outset, it's very hard for courts to overcome. It's easy for a court to tell an administration stop doing that bad thing. It's much harder for a court to say to an administration start doing the right thing. The courts can't actually get out there and start enforcing immigration laws.

Are there parallels between Obama’s action on DACA and Trump’s actions on TikTok?

AW: And that's what we see with TikTok as well. You have a very straightforward and clear law passed over with overwhelming support in both House to Congress, both political parties, and signed by President Biden. And it has an explicit provision for delaying the effectiveness of the law if it seems like there's progress towards a divestiture of TikTok. And just in a nutshell what the law does is it prohibits Apple and Google and other, if there were other platforms like that, from distributing TikTok and anything else that qualifies as a foreign adversary controlled application. So it's a law that says Apple, Google, you can't make this available to the people until TikTok is divested from Chinese control into another company.

Is President Trump nullifying the TikTok ban? Can he do that?

AW: So President Trump isn't purporting to nullify the law altogether. He's not saying the law isn't a law. He's not pretending that the words in the law don't mean what they mean. What he's saying, and I actually thought that while I disagree with the order, he has a fairly reasonable way of making the argument. He says, as President, he is constitutionally responsible for the nation's national security and that the timing of this law's application creates real challenges for the newly inaugurated president to carry out those constitutional duties. So he doesn't say he'll never enforce this law. He says so that he can be a proper constitutional steward of a national security, he needs some time to think through how this will work, to analyze it, and perhaps to renegotiate parts of it. And he says, where I think he gets out a little bit over his skis, is he says, not only will the Justice Department not enforce this for 75 days, but the Justice Department shall never enforce any kind of penalties that would accrue against Apple and Google during that sort of safe harbor 75 day period.

I don't think he can do that.

Giving Trump the benefit of the doubt, is it fair to say he is trying to do the right thing in saving TikTok, but going about it the wrong way?

AW: Hypothetically, if President Trump really were thinking just exclusively in terms of the national interest and national security, I still think that there's just too much water under the bridge. He's already said at length that he's changed his mind in part because of his political success on TikTok. I do understand that presidents do need to have some points of leverage in negotiation with foreign countries, especially now with China. It was Chief Justice John Marshall, who a long time ago said that the president is our sole organ of diplomacy. He's in charge of the State Department and everything else that's involved in diplomacy. And so of course we want the president to have some leverage.

But here where there is explicitly a clear framework for the kind of considerations that President Trump has raised, a clear framework for delaying this for another 90 days, if there's progress, part of that reflects poorly on the Biden administration, I just want to say, that the point was that the whole process was supposed to start before the January 19th date. It is not just a President Biden and his administration. They shouldn't have just been sitting around waiting for things to happen and then getting to January 19th saying, oh, this is complicated, and handing it over to President Trump like a giant stinky bag of garbage. He was actually supposed to be making progress on this this whole time. But even despite that, President Trump just coming into office and announcing that he won't enforce it for 75 days, for very amorphous reasons, I think that doesn't even reach the bare minimum of what a president ought to be doing in this situation.

How does birthright citizenship exist in our country today?

AW: The current form of birthright citizenship that we have, that anybody born in the US with, very limited exceptions, they are automatically a citizen of the United States, regardless of their parents' status in the United States, that dates back more than one and a quarter centuries, I guess almost exactly one and a quarter centuries, to 1898, in the case of Wong Kim Ark. He was a Chinese man, he was born in San Francisco, of Chinese immigrant parents, born in the US, traveled back and forth to China when he became an adult, and was stopped upon reentry by enforcement of the Chinese Exclusion Act. And the Supreme Court ruled in that case that no, Wong Kim Ark was a US citizen regardless of his parents' status, he was born in the US.

And the court was relying on the 14th Amendment, which says, "All persons born in the United States and subject to the jurisdiction thereof, are entitled to the full rights of citizenship." The crux of the argument going back for almost 150 years now is what do we mean by that, subject to the jurisdiction thereof? Is somebody whose parents come here illegally, maybe with no intention of all, of staying in the US, the parents have no intention of staying in the US, is their child still a US citizen? What the Supreme Court held in that case in 1898 was, yes, if you're born in the US, unless you're the child of a diplomat, or maybe the child of a soldier, or some other invading force, and I think invasion is where we'll litigate this now, going forward, no, you as the child are still subject to the jurisdiction of the US.

What arguments will Trump use in court to defend his executive order redefining birthright citizenship?

AW: Now the argument will really be forced in the courts because of this executive order, where President Trump, I think leaning on the notion that what's happening at the southern border is not just a tidal wave of illegal immigration, but something closer to an outright invasion.

Although, it's not clear exactly what the term means as he uses it. That children born to those immigrants, those illegal immigrants, they don't automatically receive birthright citizenship, and that there should be further tests in imposed on them to make sure that they actually qualify as citizens under the broader sense of allegiance to the US. There were rumblings of an executive order like this during the last Trump administration, at least I knew people in and around the administration were advocating for this, so I'm not surprised by it. But in the same way that I really am sort of disheartened or astonished by what President Biden tried to do, as he was leaving office, this strikes me as another example of the worst kind of presidential power, or assertions of presidential power, because it's so sweepingly and dramatically casts real questions over the legal status of any number of people. It creates enormous uncertainty.

What is the history of the Fourteenth Amendment?

AW: After the Supreme Court ruled in the 1850s, in the infamous Dred Scott Case, that Blacks, slave or otherwise, were never intended to be citizens, or have the rights of citizens under the US Constitution. After that case was decided, and the Civil War was fought and won by the north, and the post-war amendments were ratified, the 14th Amendment to the United States Constitution is what created this explicit textual right in the Constitution to citizenship.

It's the section one of the 14th Amendment is where you get this phrase about, "All persons born in the United States or naturalized," or "Entitled to the full rights of citizenship." It was, first and foremost, obviously an effort to overturn the Dred Scott decision, and make clear that Dred Scott himself and all other Black men and women in America, slave or otherwise, were citizens, but it didn't limit it on its face to that. It went much, much more broadly, it just said, "All persons." So, it's possible, of course, that the people who ratified that provision in the 1860s, that they didn't appreciate the scope of immigration just decades later. It's quite possible obviously, many, many more people have started coming to America from many, many more places. So, I don't know, I don't assume that they would've written it completely the same way in the 1860s, but they wrote what they wrote.

You mentioned that you think the children of illegal immigrants born in the United States should be granted citizenship. How should we treat their parents as we try to crack down on illegal immigration?

AW: Given that I just gave my ode to illegal immigration a moment ago, to be really clear here, notwithstanding everything I just said, there is something deeply unsettling about people knowingly violating our immigration laws. Coming here, jumping the line in front of everybody else who go through the process. Just yesterday, I was talking with a man who's one of our allies in Afghanistan and all the ordeals he went through to come to the United States with his wife and kids or his one kid. Now they have four, three of whom are known born American citizens. It seems very unfair to everybody else who wants to come to this country through the right means.

So I don't denigrate that. Obviously, there's a lot of work that needs to be done at the border and also through our visa process to make birth tourism harder through the granting of visas. All that needs to be done. But the question is, what happens when all that fails and people get into the country illegally and a child is born here?

I think especially given the text of the Constitution, we have to shield our eyes to everything leading up to the birth of that child. The constitution is aimed at the rights of the person that was born here, the child, and then you get the harder question about what to do with their parents. Because frankly, once the child is born here, do we really want to separate the family and send the parents home to Honduras or Mexico and then have this child who's an American citizen here? Do we want to force that child and his or her parents to make the enormously difficult choice about whether the American children stay here and the parents go home? I would hope that our country would err on the side of mercy, and notwithstanding the fact their parents broke the law to come here, to allow the parents to stay, I wish our written laws were much more explicit on that.

What space does Congress have to amend our understanding of birthright citizenship under the Fourteenth Amendment?

AW: Congress does have some room here, and I think there'll be a lot of debates going forward about how much room. Section 5 of the 14th Amendment gives Congress the power and responsibility to write laws implementing the rest of the 14th Amendment. So it's not that Congress could negate Section 1 of the 14th Amendment, but to the extent that there's some ambiguity in there about what the terms actually mean, Congress might be able to clarify the meaning of the amendment through legislation. I'm not sure that Congress could do away with birthright citizenship. Maybe if Congress were to legislate some policy to the effect that the immigration from Mexico actually does qualify as an invasion within the meaning of the Constitution and other laws, maybe that would be a way to limit birthright citizenship for the children of people who came up from the southern border. I'm just not sure. I think that's where Congress would have to act.

Is Trump’s attempt to pause federal grants constitutional and what legal battles is he setting up?

AW: This is one of the sort of timeless questions in American constitutional government. Can a president refuse to spend money that Congress has authorized and appropriated? It goes back to almost the very beginning. I think Thomas Jefferson might be the first example of a president refusing to spend money, although I wouldn't been shocked if President Washington had done it as well.

In the 1970s, Congress passed a law, the Budget Impoundment Act. It was in the aftermath of Nixon, and it was one of the many, that sweeping era of Bills attempting to constrain the president, the Foreign Intelligence Surveillance Act, the War Powers Act, campaign finance laws, the Independent Counsel Statute. This Budget and Impoundment act was another effort to constrain a president's power.

While I just went on forever ago about presidents responsibilities to enforce the laws, let's just be clear, there's always been discretion for a president to decide how best to enforce the law. I'm glad that executives have some discretion when it comes to enforcing laws or else I'd have a lot more speeding tickets. We just know not every law is going to be enforced up to the maximum. And presidents and executives in all levels of government have always had some enforcement discretion.

But presidents have always bristled under the limitations of the Impoundment Act. There's, for a very long time, been claims that Congress in passing that law unconstitutionally the president's own executive power. We've seen other attempts at pressure release valves on the budget, like the line item veto, which the Supreme Court struck down as unconstitutional. And so now we might see a direct over the Impoundment Act because when President Trump's Office of Management and Budget put out its memo to the agencies this week ordering them to not spend, what was it? They called it, federal financial assistance programs. So not money that goes out directly to individuals, but money that goes out to other intermediary agencies or organizations.

As I read this little two page memo, it really does rest on the president's constitutional power to not spend or to delay the spending of funds that have already been appropriated. This too seems like, it feels like President Trump sort of gearing up for a real constitutional fight.

How do we right the ship and ensure that the President and Congress are fulfilling their obligations in the constitutional separation of powers?

AW: It's not just that the president is now sort of making the policies. Every presidential election is the everything election. Every policy seems up for grabs. President comes to office with a burst of lawmaking power, most of which is in the form of executive orders. There'll be some legislation, but it's mostly legislation from the Executive Branch. It doesn't just deform the executive branch, it deforms the rest of government. Congress becomes totally inert and reactive, and a lot of that has to do with political parties, but not all of it.

But even with the courts, you said everything gets thrown to the courts. It's not just that it gets thrown to the courts, it's that it gets thrown to the courts immediately. Swift lawmaking through the administrative state creates even swifter judicial review. It's why we now have debates around the district courts and whether a judge in Seattle or a judge in Texas should be able to issue a nationwide injunction that governs the whole country outside of his or her own little district. Cases rocket up and down the dockets. The judge in the birthright citizenship case issues a temporary restraining order. Soon it'll probably be a preliminary injunction. Then there'll be an appeal to the Ninth Circuit. There'll be very quick calls for the Supreme Court to intervene.

The courts are supposed to be slower and more deliberative, but the pace of administrative lawmaking and the malleability of administrative lawmaking, the fact that the president could change any of these executive orders tomorrow and create any new problems and maybe create new lawsuits, it means the courts have to move faster than ever. It makes the courts a worse version of themselves.

Read the transcript here.

SHOWNOTES

Birthright Citizenship Around the World (Library of Congress)

Protecting the Meaning and Value of American Citizenship (White House, Executive Order, January 20, 2025)

Fourteenth Amendment (Constitution Annotated, Congress.Gov)

JD Vance defends Trump on birthright citizenship, says the U.S. should “look out for the interests of our citizens first” (CBS News, January 27, 2025)

Up to 250,000 children born to illegal migrants in 2023: preliminary report (Fox News, January 25, 2025)

A federal judge temporarily blocks Trump’s executive order ending birthright citizenship (AP News, January 23, 2025)

United States v. Wong Kim Ark (Oyez, Decided 1898)

Birth tourism continues in the Marianas (Pacific Daily News, January 6, 2025)

Man sentenced for helping pregnant Chinese women travel to give birth in the US (AP News, December 16, 2024)

Republicans raise alarm about Chinese ‘birth tourism’ industry (The Center Square, December 10, 2024)

User Guide to the 2023 Natality Public Use File (US Centers for Disease Control and Prevention, 2023)

Birth Tourism in the United States (Senator Rob Portman, Committee on Homeland Security and Governmental Affairs – United States Senate, December 20, 2022)

Visas: Temporary Visitors for Business or Pleasure (Federal Register, January 24, 2020)

US imposes visa rules for pregnant women on ‘birth tourism’ (AP News, January 23, 2020)

Birth Tourism: Facts and Recommendations (Center for Immigration Studies, January 23, 2020)

Statement from President Joe Biden on the Equal Rights Amendment (White House, January 17, 2025)

That’s Not How Constitutional Amendments Work (Russell Berman, The Atlantic, January 17, 2025)

Jonathan Turley: President Biden sees dead amendments (Jonathan Turley, Fox News, January 18, 2025)

Birthright citizenship is American citizenship (John Yoo, Civitas Institute, January 24, 2025)

Birthright citizenship is still in the Constitution (Dan McLaughlin, National Review, January 21, 2025)

Can birthright citizenship be repealed by Executive Order (Jim Geraghty, National Review, January 21, 2025)

The unseen implications of repealing birthright citizenship (Gil Guerra, The Dispatch, January 21, 2025)