How Mr. Trump Can Scale Back Birthright Citizenship Without Congress

President Donald Trump last fall floated the idea of ending universal birthright citizenship by way of executive order.

The reaction from the political and chattering classes was uniformly hysterical. Democrats called it racist. Many Republicans, including then-outgoing Speaker of the House Paul Ryan, dismissed the move as “obviously” unconstitutional.

Yet the case for ending birthright citizenship is quite strong, on both legal and economic grounds.

The text of the Constitution does not define who qualifies for American citizenship, and it gives Congress exclusive power over naturalization. The 14th Amendment, which Congress passed in 1868 to enshrine core legal rights for newly freed slaves and their children, grants citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”

That last clause—”subject to the jurisdiction thereof”—generates the current controversy over birthright citizenship. Advocates of the status quo argue that a child born to illegal immigrants or tourists clearly qualifies, since the newborn child is “subject” to our laws.

The federal government has adhered to this interpretation only since 1940.

The 14th Amendment’s authors would have disagreed with this practice. Sen. Lyman Trumbull of Wisconsin, a key voice in the adoption of the amendment, explicitly said the phrase “subject to the jurisdiction thereof” means “[n]ot owing allegiance to anyone else,” namely, a foreign government. He went on to say, “It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens.”

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