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Tuesday, October 30, 2018

Judicial departmentalism and birthright citizenship

The President announced plans to issue an executive order that would deny citizenship to children born in the U.S. to non-citizen parents. Assume: 1) Trump (or the attorneys and aides advising him) genuinely believes this is constitutionally valid, on the best understanding of § 1; 2) § 1 of the Fourteenth Amendment guarantees birthright citizenship (i.e., Trump and his attorneys are wrong); and 3) the Court has given no signals of intent to move from its current interpretation of § 1.

So how should we speak about what Trump is proposing? Should we say he is acting unconstitutionally? Is that fair, given that he is an independent constitutional actor who believes in the validity of what he is doing? How might we otherwise describe it? If we accept the President's independent constitutional interpretive authority, can he exercise it even if he knows he will lose once the dispute reaches court? Or is his power more limited, to those situations in which he has reason to believe (from some judicial hints) that the Court may move off the judicial interpretation, so defeat in court is not guaranteed?

Posted by Howard Wasserman on October 30, 2018 at 11:29 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


What Douglas Levene said...

Posted by: James | Oct 31, 2018 5:32:46 PM

A true departmentalist, or non-judicial supremacist, would say "The President is acting unconstitutionally because the correct understanding of the Constitution is not like him. While of course not dispositive, the Supreme Court has agreed with my interpretation in the past, so you see that my interpretation is probably correct. [That is arguing ad hominem, but whatever.] I wouldn't impeach the President over this because he seems to be acting based on his (or his counsel's) honest belief of what the Constitution means, but I will fight his action in Congress, in the public, and, if need be, in the courts."

Posted by: Biff | Oct 31, 2018 11:12:19 AM

@pc He arrived in the US in 1888 at the age of 16, meaning he was born in 1872. This is before the Chinese Exclusion Act (even before the Page Act). At that time, if he was a resident of the United States, then he was here legally. So yes, I don't even think it was a question that his parents were lawful permanents residents when he was born (if it was in the US living here for at least a decade).

Posted by: Devin Watkins | Oct 31, 2018 4:22:07 AM

You could say President Trump is acting unconstitutionally if he issues this executive order, loses a challenge to in the courts, and ignores the courts' rulings. But it seems to me to be well within the constitutional scheme of things for him to attempt to change the law, that is, to attempt to get the Supreme Court to change its views on the 14th amendment, by adopting an executive order and defending it in court when it's challenged. How else could he even ask the Court to reconsider its prior cases? There is no procedure for the Court to rule on hypothetical cases. He must act and the defend that act if and when it is challenged.

Posted by: Douglas Levene | Oct 31, 2018 12:46:21 AM

If a decision “turned upon” a question, that normally means that the question was dispositive. The sentence right before the one you quote states that the premise of Quock Ting was that “a person of the Chinese race, born in the United States, was a citizen of the United States.” You’re saying that this premise was incorrect, and that the court overlooked that, even he’d been born here, he would still be deported if he failed to show that his parents were legal permanent residents. That’s quite a thing for the court to overlook. Do you think the government conceded that his parents were lawful permanents residents when he was born? I kind of doubt it, since the government’s position was that he wasn’t born in the country.

Posted by: pc | Oct 30, 2018 10:52:05 PM

The answer concerning Quock Ting is right in Wong Kim Ark: "The decision turned upon the failure of the petitioner to prove that he was born in this country, and the question at issue was, as stated in the opinion of the majority of the court, delivered by Mr. Justice Field, 'whether the evidence was sufficient to show that the petitioner was a citizen of the United States,' or, as stated by Mr. Justice Brewer in his dissenting opinion, 'whether the petitioner was born in this country or not.'" I don't think anyone doubts that being born within the United States is a necessary (but not necessary sufficient) condition of birth right citizenship. If a person was not born in the United States (as the Court found insufficient evidence of in Quock Ting), then they are not a natural born citizen. But that doesn't mean if you are born in the United States that you must therefore be a United States citizen (for instance you could be the child of a foreign ambassador which everyone agrees would exclude you from natural born citizenship). There Court in Quock Ting merely answered the question before them and no more.

Posted by: Devin Watkins | Oct 30, 2018 9:14:15 PM

reply to Devin Watkins.

If living a portion of one's life in the US is sufficient to establish a claim of lawful residence, as you seem to concede regarding Quock Ting, why wouldn't living the entirety of one's life here -- every single day -- be more than enough? Quock Ting is cited as support for Wong Kim Ark.

Posted by: pc | Oct 30, 2018 6:25:46 PM

@pc Here is the concluding sentence of the Supreme Court in Wong Kim Ark (169 U. S. at 694):
"Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of 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, and are 'subject to the jurisdiction thereof' in the same sense as all other aliens residing in the United States."

But what if they are not "permitted by the United States to reside here"? Throughout Wong Kim Ark, the Court notes the exception for natural born citizenship of "the child born to a foreigner during the hostile occupation." An example of a child born of people not permitted by the United States to reside here.

In Quock Ting v. United States, 140 U.S. 417 (1891), the person had claimed to have lived for 10 years in the United States with his parents after he was born (clearly in my opinion a claim of lawful residence permitted by the United States). Instead the government said he was a "subject of the Emperor of China" and had never lived in the United States at all, and the court agreed with the executive branch. This really isn't a relevant case.

Posted by: Devin Watkins | Oct 30, 2018 3:17:06 PM

I don't read anything in Wong Kim Ark and the cases it cites as limiting its rule to children of lawful permanent residents, but I could be wrong. The single premise of Quock Ting v. U.S. appears to be that, if the person could show he was born here, he'd be a citizen.

Posted by: pc | Oct 30, 2018 2:12:56 PM

One can read indeed such opinion , supporting such new policy by Trump ( as mentioned by me ) by :

Prof Edward J. Erler

In the " National Review " , titled :

" Trump’s Critics Are Wrong about the 14th Amendment and Birthright Citizenship "

Here :



Posted by: El roam | Oct 30, 2018 1:43:30 PM

Just the link to the " Guardian " :



Posted by: El roam | Oct 30, 2018 1:04:43 PM

It seems , that he is pretty sure that it is legal and constitutional . I quote from the " Guardian " :

" It was always told me that you needed a constitutional amendment .Guess what ?? You don't "

But one should notice :

First , he has the right to constitutionally challenge whatever . As the court can overturn its own constitutional precedents . Yet , only to challenge , not to implement it , in advance , contrary to a clearly established current precedent of court. But , how it is done then , pretty complicated .

Second , I don't know what is the constitutional basis for such presumption asserted by him but one may speculate maybe , that :

The wording of the 14th amendment referring to :

All persons born or naturalized in the United states ......

Is not to be challenged , but rather the following stipulation :

" ...and subject to the jurisdiction thereof ...."

For it is clear , that whatsoever , a person born in the US , is subjected to its jurisdiction ( for , at least , the penal code is implied on every person , whether complete alien or citizen ) Yet :

One can't understand then , what is the purpose of that provision then . If it is in advance so ( the jurisdiction ) what it has to do with citizenship ?? One may speculate , that his legal experts , would argue maybe that :

Being born , is not sufficient . Only if the parents are already citizens , then , the new born is also a citizen . Otherwise , that stipulation is rendered meaningless . The jurisdiction is a given and to every new born baby . Why to add it then ?? There must be an additional element for being granted citizenship , has to do with jurisdiction , prior to the birth.That is to say, that the parents , are already and only if already citizens .

But ,although pretty reasonable , it is only speculation , for I haven't read any opinion of any legal expert advising so Trump .


Posted by: El roam | Oct 30, 2018 1:00:41 PM

You can say he is acting unconstitutionally if you have reviewed his arguments and do not find them to be valid. But you shouldn't say that he is acting unconstitutionally just because even the Supreme Court says so (even though the Supreme Court would have the power to stop his actions in any given case). As Thomas Jefferson said: "To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy... The Constitution has erected no such single tribunal... It has more wisely made all the departments co-equal and co-sovereign within themselves."

The statute (8 U.S.C. § 1401) says "The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof." The question concerns the meaning of "subject to the jurisdiction thereof." Clearly that phrase means the same thing as the clause in the Fourteenth Amendment. But what does that clause actually mean?

I actually hope that Trump does what he is claiming, as we don't actually have a direct on point case by the Supreme Court (and this would almost certainly go to the Supreme Court), as applied to temporary visa holders or illegal immigrants. Even if you think Trump is wrong, it would be good for the court to say that definitively.

Wong Kim Ark dealt with the children of legal permanent residents of the US. The question is will Trump's executive order only apply to illegal immigrants or will it also apply to legal temporary visa holders. I doubt he would win if he challenges the citizenship of children of lawful temporary visa holders. But if he limits it to only illegal aliens, there is a substantial argument there. Wong Kim Ark relied upon the common law for interpreting this sentence going all the way back to Calvin's Case by Sir Edward Coke (http://www.commonlii.org/uk/cases/EngR/1572/64.pdf). In Calvin's Case, Coke noted that a person must give at least temporary allegiance to the government in exchange for the government agreeing to provide protection. But people that enter the territory without amity with the government, their children are not natural born subjects "though he be born upon his soil, and under his meridian, for that he was not born under the [a]ligeance of a subject, nor under the protection of the King." Applying this to illegal aliens would not be a far leap.

Posted by: Devin Watkins | Oct 30, 2018 12:50:05 PM

wasn't birthright citizenship for children of aliens the law prior to the 14th amendment? Is trump claiming to enforce some exclusion statute that I'm not aware of?

Posted by: pc | Oct 30, 2018 11:50:27 AM

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