A Plan to Renew the Promise of American Life, Plank 2
Plank 2. Restore consent-based citizenship
2.1. On a prospective basis, restore the Constitution’s default policy of consent-based, rather than birthplace, citizenship (or to put it in legal terms, go back to jus sanguinis rather than jus soli as the default policy, employing jus soli in select cases as an administrative convenience). In practical terms: 1) grant United States citizenship automatically to each of the following descriptions of person, but only to them: i) the natural child of a U.S. citizen, whether born on U.S. soil or abroad, and ii) the natural child, born on U.S. soil, of a non-citizen who is a permanent resident alien or who is serving on active duty in the U.S. armed forces; and 2) cease granting automatic U.S. citizenship to the child of a sojourner or unauthorized entrant, regardless of where the child is born. Effectuate this policy prospectively, without depriving any existing citizen of his or her citizenship, and do it by statute (and to the extent possible by executive order) or as a last resort by constitutional amendment.
2.2. End dual citizenship, which should be anathema in a republic. Automatically withdraw U.S. citizenship from any person found to hold foreign citizenship, if the person, after a reasonable grace period, has not voluntarily renounced that citizenship. But do not penalize those who, for whatever reason, voluntarily choose to renounce their U.S. citizenship.
2.3. Reform U.S. immigration laws to secure the borders, protect national security and the public health, and improve the quality of authorized immigration. Specifically, 1) maximize legal immigration by persons who are likely to assimilate and who can offer useful talents, skills, or backgrounds, 2) halt or greatly reduce immigration by any class of persons who are unlikely to assimilate or whose presence in large numbers would disturb our nation’s social, political, or economic tranquillity (including, when necessary by reducing immigration from entire countries or regions), and 3) stop impressing employers into the service of our immigration agencies. Instead, 4) intercept, detain, and promptly deport unauthorized border crossers and visa overstayers, 5) build and maintain effective physical barriers to prevent unauthorized border crossings, 6) require temporary visitors to check in with immigration agencies on a regular basis, and 7) indefinitely detain persons claiming political asylum or refugee status until their claims are finally resolved. In doing these things, take care to safeguard the mental and physical well-being of detainees, especially children.
The primary purpose of this plank is to clarify who is and who is not a U.S. citizen, a basic question in any republic. A secondary purpose is to identify practical policies that can diminish the large, unchecked wave of unauthorized entrants that, since the 1960s, has disturbed our social, economic, and political tranquillity. And lying at the intersection of these two goals we find the issue of birthright citizenship (the automatic granting of citizenship to anyone born on U.S. soil). Thus, this plank focuses primarily on that issue.
With respect to birthright citizenship, the short version of my argument is this:
While we are a nation of immigrants, and should welcome immigrants, we should also secure our borders, and reform our citizenship rules, for reasons of public health, safety, and security, and to safeguard our social, political, and economic tranquillity.
The U.S. Constitution neither requires nor forbids a policy of birthright (or as I prefer to call it, birthplace) citizenship, that is, a policy directing that anyone born on U.S. soil is automatically granted U.S. citizenship. Rather, from the beginning the Constitution has by default assumed the opposite policy, namely, that citizenship is granted automatically to those who have at least one U.S. parent, regardless of birthplace. Or to put it in legal terms, our default policy has always been jus sanguinis, not jus soli. Nothing in the Citizenship Clause of the Fourteenth Amendment, ratified in 1868, alters that default policy.
Now, to be clear, Congress does have the power to adopt a policy of birthplace citizenship (jus soli). But it is not required to do so. And it has never done so. And it should not do so, because jus soli is bad public policy, one that encourages birth tourism and unlawful entry.
Regrettably, Jus soli has been imposed on us by way of an unfortunate misreading of an 1898 Supreme Court case, and advocates of birthplace citizenship have tried to justify this misreading by pointing to the (unfortunate) omission of a single word in an 1866 congressional speech transcript.
To be clear, the Fourteenth Amendment does make automatic citizens of the children of permanent resident aliens. But it does not do so with respect to the children of sojourners and unlawful entrants.
Congress can and should restore the Constitution’s default policy by statute. And if necessary, the president can restore it by executive action, because Congress implicitly delegated that power to him in the Immigration Act, which simply quotes the Fourteenth Amendment‘s Citizenship Clause verbatim.
Jus sanguinis is the natural policy for a free people. In a monarchical system, citizenship is based on subjectship, that is, on subjection to the monarch. In a republic, the only truly appropriate basis is consent — the mutual consent of both the citizen and the government. Since we are a republic, not a monarchy — it’s called the ‘Revolution’ for a reason — our default policy is and should be jus sanguinis.
That’s the ‘short’ version.
As for the long version, I must apologize: it’s even longer, and a bit repetitious.
1. The True Principle Is Mutual Consent
In our republic, citizenship is based on consent. In a monarchical system, it is based on subjection. The two principles are opposites, the first embracing the ideas of equality and freedom, the second the ideas of slavery and servitude. In the monarchical system, the king is sovereign and the people are his subjects. In the republican system, the whole people is sovereign, and every citizen shares in the sovereignty. No man is subject to any other. Each citizen is a little sovereign, as it were. The American Revolution effected a shift from the monarchical to the republican form and therefore permanently altered the basis of American citizenship from one of subjection to one of consent. All of our law on this subject flows from this initial fact.
Unfortunately, much confusion about the nature of U.S. citizenship has arisen in our law, because the original Constitution did not speak to the issue of citizenship in plain terms and, where it spoke indirectly, it used terminology from the common law (e.g., ‘naturalized,’ ‘natural born citizen’) that could be read as a continuation of, rather than as a radical break with, the monarchical form.
The Fourteenth Amendment, ratified in 1868 in the aftermath of the Civil War, defined citizenship in the Constitution for the first time. The first section of the Amendment declares that, to be a U.S. citizen, one must either be ‘born or naturalized in the United States, and subject to the jurisdiction thereof.’ This phrase has been misconstrued for many decades now as meaning that any person born on U.S. soil is automatically a U.S. citizen. But that overlooks the phrase ‘and subject to the jurisdiction thereof,’ which modifies and narrows the phrase ‘born or naturalized in the United States.’ The correct reading is that a person, in order to be regarded as a U.S. citizen at birth, must be subject to the jurisdiction of the United States at birth. Being born on U.S. soil is not enough.
Since a child cannot freely choose his citizenship, his citizenship is presumed to follow that of his parents, until changed with the consent of both the child and the government. It flows from this that the child of a United States citizen is granted U.S. citizenship automatically, even if born abroad and the child of a foreigner is only granted U.S. citizenship after seeking and receiving naturalization by Congress. Both the child and the government are free. The governing principle is consent. (I am here describing the principle that underlies our policy, not the actual policy as currently implemented.)
The consent must be mutual. A person may refuse his consent, or withdraw it by renouncing his citizenship. Subject to the limitations of the Constitution, Congress may refuse its consent, or withdraw it, for example, in retaliation for treason.
It follows from all this that a mother cannot confer U.S. citizenship on her child simply by giving birth to that child within our borders. The child’s citizenship is determined, not by the spot on which his mother happened to go into labor, but rather by the free, mutual consent of the child and the government, with the child being presumed to choose to adopt the same citizenship as one or both parents. And from this it follows that sojourners and unlawful entrants have no power to come here and make new citizens without our consent.
Opposite of mutual consent, as we’ve seen, is perpetual allegiance. So-called birthright citizenship (again, for clarity, I will call it birthplace citizenship) is based on the feudal notion of subjectship, which is always presumed to be perpetual. Under that model, a child’s citizenship is determined by the soil upon which he is born and attaches to him until absolved by the government. He cannot renounce it unilaterally. If you are born in the king’s realm, you are the king’s subject. You owe the king your allegiance as a debt of gratitude. You must remain the king’s subject until he, at his sole pleasure, chooses to absolve you of your allegiance. You cannot unilaterally renounce that allegiance without offering insult to your sovereign, which is treason. For us, by contrast, ‘Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.’ (U.S. Constitution, Article III.)
So here are two opposing principles: feudal allegiance and republican consent—slavery and freedom. Our Constitution embraces freedom. As the lawyers would put it, we follow the rule of jus sanguinis not jus soli. In the soil-based model, consent is unilateral on the part of the government. The individual has no reciprocal right to choose. In the consent-based model, consent must be bilateral. Both parties must remain free to choose. The proof that American principles have always reflected jus sanguinis and never jus soli is that, from independence onward, we have always been allowed to renounce our citizenship without incurring the charge of treason. Therefore, any questions that arise in our citizenship laws should always be considered in the light of, and any disputes should be resolved in favor of, jus sanguinis. We should have a presumption in favor of freedom.
2. Citizenship under the Fourteenth Amendment
What does it mean to be ‘subject to the jurisdiction’ of the United States? Some have argued that it means merely ‘being subject to its laws.’ But that’s not right. The meaning is narrower. It means ‘owing it political allegiance.’ Foreign tourists and diplomatic personnel are subject to our laws during their stay here, but they do not owe us their political allegiance. Permanent resident aliens, by contrast, due to the freely chosen permanency of their residence among us, do owe us their allegiance, even though they are not citizens and cannot claim all the rights and privileges of citizenship.
How do we know whether a person owes political allegiance to the United States? By asking two questions: 1) Has the United States extended an offer of citizenship to this person by law? 2) Has this person accepted that offer? If the answer to both questions is yes, the person is a U.S. citizen and owes the United States his allegiance. He is ‘subject to the jurisdiction thereof.’
But what if the person is an infant, and therefore unable to accept the offer? Then, an additional question must be asked: 3) Do either of the child’s parents hold U.S. citizenship or status as a permanent resident alien? If the answer is no, then the child is not a U.S. citizen and the analysis is done. (It doesn’t matter on whose soil the child was born.) If the answer is yes, then yet another question must be asked: 4) If neither of the child’s parents is a U.S. citizen, but at least one is a permanent resident alien, was the child born on U.S. soil? If the answer is yes, then the child is a U.S. citizen under the Fourteenth Amendment. He was born in the United States and at least one of his parents is subject to the jurisdiction thereof. If the answer is no, then the child is not a U.S. citizen, unless Congress has by law extended to persons of his class an offer of citizenship. If the child isn’t a citizen, then he doesn’t owe the United States his political allegiance and therefore he cannot enjoy the rights and privileges that come with American citizenship.
3. ‘Natural Born Citizen’
Because every U.S. citizen is a sovereign, the spot on which one is born is irrelevant to whether one is a ‘natural born citizen.’ The child of a U.S. citizen is always a ‘natural born citizen,’ even if born abroad, for the same reason that, under British law, the child of the monarch or a royal ambassador is always a ‘natural born subject,’ regardless of the child’s place of birth. (Professor Randy Barnett explains this principle well here.) So when the Constitution speaks of a ‘natural born’ citizen, in the provision requiring that the president be one, it means only that, to be eligible to be president, you must be a U.S. citizen and at the time of your birth one of your parents was a U.S. citizen, which is another way of saying you did not acquire your citizenship through naturalization. There is a lingering question whether ‘natural born’ status can be conferred only by way of one’s father, since that was the practice of most nations before the Revolution. But my view is that that ancient custom, which was not universal, was rendered obsolete by the Revolution. Our republican Constitution does not make ‘natural born’ status dependent on the sex of the citizen-parent.
4. Congressional Power
The power granted to Congress to naturalize foreigners as U.S. citizens (granted in Article I, Section 8, Clause 4) is very broad. Congress may extend offers of citizenship to any foreigners it wishes, although presumably this only applies to persons who actually reside within our borders. Famous examples of groups offered citizenship by statute include members of American Indian tribes and people living on land purchased by the U.S. government from a foreign power, such as the Louisiana Purchase and the Mexican Cession.
Congress could also, if it wanted, extend an offer of citizenship to any foreign child who happens to be born on our soil. It has never done so. And in my opinion, it should not do so, with two exceptions: 1) the children of permanent resident aliens, and 2) foreigners serving in our armed forces—that is, people who have signaled by their actions that they sincerely want to be ‘one of us’ in the sense of sacrificing for and assimilating themselves to the American people. People who by their actions have made clear that they are ‘all in’ on becoming Americans. The current policy of automatically extending citizenship to foreign sojourners and unauthorized entrants serves only to encourage foreign nationals to come to our shores simply for the purpose of conferring U.S. citizenship on their children. No sensible republic has such a policy, and, to my knowledge, the United States is unique in having one. We should not codify it.
5. A History of U.S. Citizenship
As we have seen, prior to the ratification of the Fourteenth Amendment in 1868, citizenship was not defined in the Constitution. The practice, carried over from colonial times, was to assume that, if you were born on U.S. soil, you were a citizen of the state in which you were born. But this was not jus soli. It was a rule of convenience. States could and did deny citizenship to some who were born on their soil: free blacks, for instance. The American Revolution had of necessity effected a shift from jus soli to jus sanguinis, even if the actual practice did not appear to change very much.
Prior to the Fourteenth Amendment, to be a citizen of the United States one had to be a citizen of a state. Although Congress had an explicit power to create ‘an uniform rule of naturalization’ (Article I, section 8), states still set their own policies to a large extent. As we’ve seen, some of them could and did exclude free blacks from citizenship, or from some of the rights and privileges thereof.
In Dred Scott (1857), the Supreme Court ruled that blacks could never be citizens of the United States. The first sentence of the Fourteenth Amendment was framed precisely to overturn that part of Dred Scott. It declares: ‘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 ensures national (and therefore state) citizenship to all persons, regardless of race or color, who are ‘born or naturalized in the United States, and subject to the jurisdiction thereof.’ With this change, three things become true: 1) citizenship policy is governed primarily by national rather than state law, 2) all freed slaves and their descendants born in this country are citizens, and 3) the descendants of citizens born abroad may be extended citizenship as a general policy.
For the first three decades under the Fourteenth Amendment, the Court interpreted the Citizenship Clause correctly. The most prominent example of this is Elk v. Wilkins (1884). In this case, a member of an American Indian tribe who had renounced his tribal citizenship in favor of U.S. citizenship was found to have no right to claim the latter unilaterally. Although he was born on U.S. soil, he was born as a member of a tribe, and therefore did not have U.S. citizenship. He could only become a U.S. citizen with the consent of Congress, which at the time was not forthcoming. (Congress did extend an offer of citizenship to some American Indian tribes, but not to his. In 1924, it used its naturalization power to extend the offer of citizenship to all American Indians, and that policy remains in effect today.) What the Elk case shows is that, as late as 1884, the nation’s highest court assumed our policy was not one of just soli, that persons subject to a foreign power (as the American Indian tribes were rightly considered to be) were not citizens, even when born on our soil. The Court was confirming that our policy was jus sanguinis.
6. The Legacy of Wong Kim Ark
But then in 1898, in United States v. Wong Kim Ark, the Court seemed to change position. This famous decision has always been understood as imposing a policy of birthplace citizenship for everyone born on our soil, including sojourners and unauthorized entrants, with the exception of foreign diplomats and their families and foreign invaders and occupiers while on our soil. But this is not correct. Wong does not actually determine the question of birthplace citizenship with respect to the children of illegal immigrants. It only concerns the children of legal ones. And while its result appears to be right, its reasoning appears to be flawed. Let’s try to disentangle this mess.
The parents of Wong Kim Ark were permanent resident aliens in the U.S. who emigrated to the United States but were barred by treaty from ever becoming citizens. They were non-temporary migrant workers, permanent resident aliens. Their son had been born on U.S. soil. They traveled abroad and came back, but the son was barred readmission under the Chinese Exclusion Act. Was he a U.S. citizen by virtue of his birthplace? The Court said yes, citing the feudal policy of jus soli.
In the Court’s 6-to-2 decision in Wong, Justice Horace Gray could be viewed as overruling his own earlier opinion in Elk. He interprets the words ‘subject to the jurisdiction thereof’ broadly to mean ‘subject to the laws thereof.’ The two Justices in the minority, however, interpret those words more narrowly to mean ‘owing to the United States their political allegiance.’ Although the minority were outnumbered by the majority three to one, their position is the correct one, for three reasons: 1) textual logic, 2) republican principles, and 3) legislative history.
Textual logic. If the majority’s reading were correct, the phrase ‘and subject to the jurisdiction thereof’ would be superfluous. All who are in our country at any given moment are of course subject to our laws. That doesn’t mean, however, that they are all subject to the jurisdiction of our government or owe it their political allegiance. Foreign visitors, foreign diplomats, and permanent resident aliens are all subject to the laws of the United States without being subject to the jurisdiction thereof (although the last group may be viewed as having voluntarily accepted that jurisdiction as a condition of being allowed to remain in the country).
Republican principles. In Wong, Chief Justice Melville W. Fuller’s dissenting opinion argued that birthplace citizenship, in the words of Fourteenth Amendment expert Ed Erler, ‘had been repealed by the principles of the American Revolution and rejected by the framers of the Fourteenth Amendment.’ (Heritage Foundation WebMemo #925, December 1, 2005.) On this critical point, Fuller was right and the majority wrong. When in doubt, we should interpret the Constitution in light of the principles of the American Founding. The feudal notions of birthright subjectship and perpetual allegiance are alien to the principles of free republican government. We forsook feudal principles in securing our independence, as the Declaration of Independence makes abundantly clear. In securing our independence, we ceased to be subjects and became citizens.
Legislative history. Even if the reader isn’t persuaded by these first two arguments, there can hardly be a doubt about what the Citizenship Clause really means, when one looks carefully at the relevant legislative history. The bill’s sponsors and supporters explained what it means in terms sufficiently plain not to be misunderstood.
For example, supporters were asked in debate whether the clause conferred citizenship on American Indians? No, the supporters replied, because Indians are subjects of an alien (if dependent) power, namely, their tribe. This same principle, of course, would rule out foreigners subject to a foreign power. Senator Reverdy Johnson:
Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign Power—for that, no doubt, is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States. … [T]he amendment says citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.
(Source: Congressional Globe, 1st Session, 39th Congress, May 30, 1866, part 4, p. 2893.)
That final phrase, ‘subject to the authority of the United States,’ is important. By it, Senator Johnson obviously means what he said in passing a couple of sentences earlier: ‘not subject to some foreign Power.’ Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, confirms this view: ‘What do we [the committee] mean by “subject to the jurisdiction of the United States”? Not owing allegiance to anybody else. That is what it means.’ [Ibid.] Note the word ‘allegiance.’ And at another point in the same debate Trumbull defines it as ‘subject to the complete jurisdiction of the United States.’ [Ibid.] Note the word ‘complete.’ But even more dispositive is the statement by Senator Jacob Howard, the actual author of the Citizenship Clause:
Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.
(Source: Ibid., p. 2890.)
That should settle it. Persons born in the United States who are foreigners are not citizens of the United States. Who are ‘foreigners’ born in the United States? The children of foreigners. How do we know the parents are foreigners? Because they are not subject to the jurisdiction of the United States, the ‘complete’ jurisdiction. They are, rather, the subjects or citizens of ‘some foreign Power.’
The reader will notice I have inserted the word ‘or’ in brackets in the second sentence of this quotation. I have made this correction to save the sentence from absurdity. I assume the congressional stenographer either did not hear it, or inadvertently omitted it, or Senator Howard failed to utter it. He must have meant it. As Michael Anton has pointed out, it is very common in spoken English to rattle off a list, for example, ‘apples, oranges, bananas,’ omitting the final conjunction, which is understood. Without the word ‘or,’ Howard would be saying that only foreigners here as foreign diplomats, and their families—and presumably by extension foreign occupiers—are exempt from owing us political allegiance, all other foreigners, no matter how brief their sojourn, and no matter how unlawful their stay, are to be treated as if they were American nationals when it comes to giving birth within our borders. If that had been his meaning, surely an objection would have been raised, and the point debated. Instead, what we find is a discussion about whether the language would make citizens of the children of permanent resident aliens, such as the Chinese of California and the Gypsies of Pennsylvania. The controversial answer to these questions was, yes, the children of permanent resident aliens would be citizens, because such aliens are ‘subject to the jurisdiction of the United States’—they have accepted such jurisdiction, even though they have not been naturalized. To narrow the definition of ‘foreign’ all the way down to just diplomats and their families is absurd. To interpret Howard as having meant such an absurdity strains credulity beyond the breaking point. The more reasonable interpretation is that, when Howard says ‘persons . . . who are foreigners, aliens,’ he means all persons who are foreign nationals, including sojourners, and certainly including unauthorized entrants. The fact that foreign occupiers are universally agreed to be excluded from the possibility of being citizens should tell us what was intended with respect to unauthorized entrants: they are not citizens or even lawful residents. Thus their children, too, are foreigners, unless, of course, at least one of their parents is a U.S. citizen.
Why, in the debate record, do we find no discussion of illegal immigrants? I can think of two reasons. First, in 1866 almost no one was actually excluded from the United States. Our borders were practically open. So there was hardly an issue to discuss. Second, and I think this the more likely reason, every senator simply took it for granted that the child of an illegal immigrant could not possibly be regarded as being entitled to automatic citizenship. Everyone knew that was impossible. When a senator in debate seems to either embrace or reject the idea of birthplace citizenship, the best way to interpret what he is doing is to view him as taking a position with regard to the children of permanent resident aliens. He is not thinking of illegal aliens. They are not in his mind, because everyone knows they are not even on the table for discussion.
Both the words and the history of the Fourteenth Amendment tell us the same thing: the American people, in ratifying the Amendment, understood the Amendment as conferring citizenship on the children, born on our soil, of permanent resident aliens. Therefore, the result in Wong Kim Ark, was, as a purely practical matter, correct, with respect to permanent resident aliens. But the reasoning of Wong Kim Ark was incorrect. We do not follow jus soli.
It follows that the framers of the Fourteenth Amendment wanted to make citizens of two groups only: the children of citizens and the children of permanent resident aliens. The framers did not want or intend to make citizens of the children of foreigners who are in the country temporarily, and certainly not the children of foreigners here illegally or as occupiers.
7. The Clincher
The clincher argument, for me, is to be found in the meaning of jus soli. The Supreme Court in Wong did not follow jus soli to its logical conclusion. It did not hold that we must regard those who voluntarily renounce their U.S. citizenship as traitors. And no federal officer has ever tried to give effect to that policy. The Constitution gives a very narrow definition of treason, and renouncing one’s citizenship is not part of it. The Court, it seems, thinks jus soli is our policy only partially or selectively. But why? If the Constitution does not embrace jus soli fully, then why must we assume it embraces it at all? Surely the burden of proof is on the advocates of a (selectively partial) jus soli policy to show that theirs is the proper reading of the constitutional text. Given how strongly both republican principles and the legislative history favor jus sanguinis, I think it’s fair to say they cannot meet this burden. But so long as the question is disputed, let us break the tie in favor of jus sanguinis and consent. We are, after all, citizens not subjects. (And, to be clear, let us do it prospectively. There is no need to deprive existing citizens of their citizenship.)
For those who are interested to learn more, I would recommend carefully comparing the reasoning of two legal scholars who have debated the birthright-citizenship question in recent years: John Eastman and James Ho. Both are politically conservative. Each describes himself as a textualist and an originalist. And yet they come down on opposite sides. Their difference boils down to one thing: Ho contends that the Fourteenth Amendment makes jus soli the default policy. Eastman contends that it does not (and therefore jus sanguinis remains the default). For the reasons given above, I think Eastman’s argument wins.
8. Some Practical Questions
Question: Since the Wong ruling, our policy has effectively been one of birthplace citizenship. Should we change that policy? And if so, how?
Answer: Wong doesn’t really speak to the status of illegal immigrants’ children. No Supreme Court case ever has. But clearly we need to change or clarify the current policy, which has solidified haphazardly in the shadow of what people wrongly take Wong to mean.
Question: Could the president fix the problem by executive order? If so, should he?
Answer: Yes and yes. The basic problem is that Congress has failed to do its job in this area, forcing the other branches to try to fill in the gaps. In enacting the Immigration Act, Congress chose to quote the language of the Citizenship Clause of the Fourteenth Amendment verbatim. This has had the effect of delegating the details of citizenship policy to the other two branches, which has in turn had the effect of ceding the issue to the courts. Ideally Congress will fix its error by amending the Immigration Act to implement the Constitution’s default policy of consent-based citizenship. In the meantime the president could and should fix the problem by issuing executive order ending birthplace citizenship for unlawful entrants and temporary visitors. Can he do that? Yes, because, as I said, the Immigration Act merely quotes the language of the Citizenship Clause verbatim. The president would be merely implementing existing law as written. Of course, whatever happens the issue will unavoidably find its way into the courts. The Supreme Court will have the last word, legally speaking, or at least try to do so.
Question: What if the Supreme Court double downs on jus soli?
Answer: In that scenario, we should confront the Court legislatively. People would decry this as a constitutional crisis, but I believe the elected branches would ultimately win that fight. Alternatively, we could amend the Constitution.
Question: What about permanent resident aliens? When their children are born on our soil, should they be treated as aliens or as citizens?
Answer: Under the principles of consent and jus sanguinis, we should treat permanent resident aliens as quasi U.S. citizens. They have signaled their desire to be ‘one of us,’ to give the United States their political allegiance, and therefore we should reciprocate by offering their children automatic U.S. citizenship. We should also make this offer to foreign citizens serving in our military.
Question: Must we nullify or revoke the citizenship of aliens who have obtained U.S. citizenship under the Wong Kim Ark policy?
Answer: No. The return to consent-based citizenship should be prospective, applying to all future births, not to past ones. Depriving current citizens of their citizenship would be unjust and imprudent. Congress should confirm their citizenship retroactively by statute.
9. Immigration Reform
My personal immigration reform plan, for what it’s worth, is to have ‘a high wall and a wide door.’ I say welcome the stranger but don’t go overboard. In addition to the specific recommendations of this plank, I would deport illegal aliens currently residing among us. Yes, all of them. But no, we don’t have to round them all up. Most will leave voluntarily, once they conclude that the deportation policy is being enforced. Some of them will then seek naturalization, which is great. Oh, and by the way, deportation is current law. There is nothing new or radical about it. It only seems radical, due to the mistaken perception that it is not current policy. I’d also expand legal immigration, at such time as the public clearly supports doing so. At present, a slight majority of Americans would prefer to reduce legal immigration. Therefore, as a prudential matter I would leave things as they are for the time being. Finally, I’d end wealth distribution, which is a magnet for some immigrants, and adopt policies that strengthen the nation’s economic health, so there are plenty of jobs for all—including legal immigrants.
What would happen? Illegal immigrants would exit the country, some would go home, some would get in line to become legal immigrants, and some would secure U.S. citizenship. The immigration issue would be resolved, and tranquillity would be restored.
This plank does not require any constitutional amendments, unless the Supreme Court proves recalcitrant, in which case a constitutional amendment clarifying our citizenship policy will presumably be necessary.
Will promote political and economic tranquillity.
Will permanently resolve the U.S. immigration issue.
Revised: September 25, 2017.
First published: June 21, 2013.
Author: Dean Clancy.