Constitutional Reflections: The future of American citizenship

What are executive orders?

"In the first ten days of his second term as U.S. President, Donald Trump issued 44 executive orders. Executive orders are presidential decrees that allow the president to direct how the federal government should be managed, develop policies, and implement federal laws (Acts of Congress). The presidential power to issue executive orders stems from Article II of the U.S. Constitution, which grants the president executive authority. This power can also be derived from specific federal laws, which may even authorize the president to establish generally binding regulations ('delegated legislation') via executive order.

The president's ability to issue executive orders is, therefore, undisputed. Since the Marbury v. Madison ruling of 1803 (5 U.S. (1 Cranch) 137 (1803)), it has also been clear that federal judges have the authority to review whether executive orders comply with federal laws and the U.S. Constitution. When issuing executive orders, the president is bound by the limits imposed by federal laws and the Constitution."

Trump's executive order on citizenship

"The question arises as to whether President Trump's executive orders comply with higher law. It would be too extensive to discuss all 44 orders from his first ten days, so we will focus on the executive order issued on 20 January 2025, titled 'Protecting the meaning and value of American citizenship'. This order, which was set to take effect 30 days after its issuance, was temporarily blocked by a federal judge on 23 January 2025. According to the judge, the order is highly likely to be unconstitutional as it violates the Fourteenth Amendment of the U.S. Constitution. The same judge issued a nationwide injunction on 6 February 2025, preventing the order from taking effect while the case is under judicial review."

The Fourteenth Amendment and the Citizenship Clause

"When assessing the (potential) unconstitutionality of the order, the first sentence of the Fourteenth Amendment is of key importance. This sentence, known as the Citizenship Clause, states:

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.

This sentence establishes a fundamental principle of U.S. nationality law: anyone born on U.S. soil and subject to U.S. jurisdiction is a U.S. citizen and acquires U.S. nationality."

The interpretation of 'subject to the jurisdiction thereof'

"The executive order challenges this principle by interpreting the phrase 'subject to the jurisdiction thereof'. According to the order, the Fourteenth Amendment has never meant that everyone born on U.S. soil automatically becomes a U.S. citizen. The order excludes individuals born in the U.S. who are not 'subject to the jurisdiction thereof' from citizenship. Specifically, the order states that this applies to, first, those persons whose mother at birth is illegally present in the U.S. and the father is not a U.S. citizen or legal U.S. resident, and second, those persons whose mother at birth is legally but temporarily resident in the U.S. and whose father is not a U.S. citizen or legal U.S. resident. The order, therefore, results in excluding children born in the U.S. from undocumented immigrants from acquiring U.S. citizenship."

Historical precedent: The Case of Wong Kim Ark

"Whether the order is unconstitutional depends on the meaning of the Citizenship Clause, specifically the phrase 'subject to the jurisdiction thereof'. This was addressed in an 1898 ruling by the U.S. Supreme Court in United States v. Wong Kim Ark (169 U.S. 649 (1898)). The case concerned whether Wong Kim Ark, a child born in the U.S. to permanently residing Chinese parents, was a U.S. citizen. The Supreme Court ruled in his favour, with six judges in support and two dissenting. The Court determined that the Citizenship Clause allows exceptions to the general rule of birthright citizenship but that these exceptions must be interpreted narrowly:

The real object of the Fourteenth Amendment of the Constitution, in qualifying the words 'All persons born in the United States' by the addition 'and subject to the jurisdiction thereof,' would appear to have been to exclude, by the fewest and fittest words, (…) two classes of cases – children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State (…) (169 U.S. 649, 682).

Besides these two exceptions, the Supreme Court recognized a third:

Children of members of the Indian tribes owing direct allegiance to their several tribes (169 U.S. 649, 693).

Beyond these exceptions, the Supreme Court stated:

The [Fourteenth] Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race and color, domiciled within the United States (169 U.S. 649, 693).

Regarding 'subject to the jurisdiction thereof', the Court further explained:

Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. (…) It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides (…) (169 U.S. 649, 693).

The Supreme Court concluded that Wong Kim Ark did not fall under any exceptions and was therefore a U.S. citizen (169 U.S. 649, 704-705). We can conclude that the interpretation given in the executive order contradicts the Supreme Court's 1898 interpretation. Since Supreme Court precedent takes precedence, and the Court has never deviated from this interpretation, the federal judge was able to rule on 23 January 2025 that the order is highly likely unconstitutional."

Can the Supreme Court revise its interpretation?

"Does this settle the matter? Not necessarily. The Trump administration has indicated that it will challenge any ruling declaring the order unconstitutional. As a result, the Supreme Court may ultimately decide on the order's constitutionality. The Court does have the power to overturn its 1898 interpretation. It could align with the dissenting opinion from the Wong Kim Ark case, where two justices argued that 'subject to the jurisdiction thereof' means:

The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance (169 U.S. 649, 724; emphasis in original).

The current Supreme Court could adopt this interpretation and rule that undocumented immigrants and their U.S.-born children do not meet the highlighted requirements in the quote above. If so, those children would not satisfy the 'subject to the jurisdiction thereof' requirement and would not be entitled to U.S. citizenship. Whether the current Supreme Court will overturn its 1898 interpretation of the Citizenship Clause remains uncertain. For now, we choose to wait and see."