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Birthright change would put judges in bind

By Noah Feldman
Bloomberg Opinion

Whatever he’s being told by his lawyers, President Donald Trump can’t use an executive order to deny birthright citizenship to U.S.-born children of undocumented parents. The Constitution puts Congress, not the president, in charge of citizenship.

Federal law says that “a person born in the United States, and subject to the jurisdiction thereof” counts as a citizen. That language on its face covers all children born in the U.S.

What’s more, the statute intentionally echoes the 14th Amendment, which says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

Should Trump issue an executive order, as Axios reported Tuesday that he intended to do, it would trigger a lengthy judicial process in which the courts will have to interpret the language of the statute, and by extension of the Constitution. In the process, which would likely go all the way to the U.S. Supreme Court, Trump might unleash a serious embarrassment for the court’s self-professed originalists.

That’s because there is, in fact, an originalist argument that has been made by some conservatives in favor of interpreting the 14th Amendment to exclude the U.S.-born children of parents who are not citizens or permanent residents. The argument is pretty clearly wrong. But even if it were right, the problem is that this argument flies in the face of the ordinary meaning of the words used in the Constitution and the federal statute.

Most constitutional originalists also claim, like the late Justice Antonin Scalia, to be statutory textualists. That is, they insist on reading statutes to mean what the ordinary sense of the words requires. Justice Clarence Thomas now carries the originalist torch on the Supreme Court, and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and John Roberts all say they are guided by textualism. Yet to read the birthright citizenship clause and the federal law based on it according to the possible originalist interpretation, you have to take the words against their natural sense. Originalism and textualism, the twin pillars of today’s conservative jurisprudence, are therefore a contradiction.

Start with the originalist reading, or rather rereading, of the citizenship clause. You’d think it would be enough to say that all people born in the U.S. are citizens to make them citizens.

But the originalist claim focuses on the words “and subject to the jurisdiction thereof.” Logically, this language would appear to require both that you be born in the U.S. and that you are subject to U.S. jurisdiction.

The basic idea is that these words were originally intended to exclude people who were subject to a foreign jurisdiction rather than the jurisdiction of the U.S. That, some originalists say, means that the constitutional language wasn’t intended to include children of foreign parents. Those children, like their parents, were subject to the jurisdiction of other countries.

See how this form of originalism does its trick? It starts with words that seem to have one obvious meaning. Then it flips that meaning on its head.

The first problem with the originalist interpretation is that it’s likely incorrect as a historical matter. Law professor Gerard Magliocca, the author of the definitive biography of John Bingham, the Ohio congressman who was the principal draftsman of the 14th Amendment, wrote a law review article years ago explaining why.

To simplify, the words “subject to the jurisdiction thereof” weren’t intended to exclude the children of ordinary foreigners living in the U.S. Such foreigners are indeed subject to U.S. jurisdiction, meaning that they are obligated to follow U.S. laws and can be punished for failing to do so.

The words “subject to the jurisdiction thereof” were probably intended to exclude the children of hostile noncitizens invading the U.S. (such as some Native Americans) and the children of foreign diplomats, who were entitled to some early form of diplomatic immunity.

Judge James Ho, a Trump nominee to the U.S. Court of Appeals for the 5th Circuit and an originalist himself, made a similar point in an article before he became a judge.

But assume that Trump issues his executive order. He’ll be telling all federal government officials, including those who issue passports and prepare citizenship documents, to deny citizenship to U.S.-born children of undocumented immigrants. Those officials will presumably follow orders. The children will sue. And the courts will then have to interpret the federal statute and the Constitution.

Assume that at least some federal judges, including conceivably some Supreme Court justices, want to hold in Trump’s favor. To do so, they would have to embrace the theory that the words “subject to the jurisdiction thereof” exclude everyone born to noncitizen parents.

That would place them in the awkward position of interpreting federal law to mean the opposite of what it seems to say in the ordinary meaning of the words. After all, the ordinary meaning of “subject to the jurisdiction” is that you are governed by the law. That’s certainly the case for noncitizens living in the U.S., including undocumented people. They are subject to U.S. law in the ordinary sense.

To hold otherwise, originalists would have to say that the statute — which should be interpreted ordinarily by the principle of textualism — should actually be read in the light of what they claim is the meaning of the 14th Amendment, which should follow originalist principles. And on this theory, originalism is meant to get back to the underlying meaning — even when it contradicts common sense linguistic interpretation.

With any luck, Trump is bluffing about the executive order. With a little more luck, no federal judge will be such a bad originalist as to read the Constitution and the statute in the way Trump is proposing to do.

But if some judges are on board with Trump, prepare for a fascinating fight over how to read statutes. And prepare for at least some originalists to repudiate common-sense textualism. The spirit of Antonin Scalia will not be pleased.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.

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