President Trump proposes to end the long-accepted concept of “Birthright Citizenship” by executive order.  Contrary to most current commentary, there is a legitimate case to be made that he has that authority. It is not a good or persuasive argument, however, and it contradicts conservative political and judicial principles.

The concept of citizenship, as it has evolved over the centuries, is divided between jus soli, citizenship depending upon place of birth, and jus sanguinis,citizenship determined by the citizenship of parents at the time of birth.  Jus soli was part of English common law from which American common law is derived. The two concepts are not mutually exclusive. The Naturalization Act of 1790 provided citizenship to a child born outside the United States to an American citizen.

American citizenship was not discussed in the original Constitution but, in the aftermath of the Civil War and abolition of slavery, the Congress enacted the Civil Rights Act of 1866, providing citizenship not only to freed slaves, but “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”

Fearful that the Act might be amended by a later Congress or ruled unconstitutional by the courts, the Congress proposed the Fourteenth Amendment which was ratified by the states in 1868 and provides in pertinent part:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State where they reside.”

For adherents of Original Intent as a method of Constitutional interpretation, it should by noted that the Amendment’s proponent, Senator Jacob M. Howard of Michigan, observed during the heated debate that citizenship, “will not, of course, include persons born in the United States who are foreigners, aliens, 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”

Following the discovery of gold in California in 1849, huge numbers of Chinese immigrants entered the western United States and engaged in mining, railroad construction, farming and work in the cities. They were generally met with resentment and distrust as a threat to American culture and institutions. In 1882, 1888 and 1892 The Chinese Exclusion Acts limited Chinese immigration and made existing Chinese immigrants ineligible for citizenship. The laws also provided that, if a Chinese immigrant returned to China to visit or find a wife, he could not return to the United States without applying anew for admission within the limits.

In 1873 the Supreme Court’s Slaughterhouse Cases opinion, not dealing with birthright citizenship, but with other aspects of the Fourteen Amendment, stated “The phrase, ‘subject to its jurisdiction,’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.”

The Supreme Court squarely reached the issue of birthright citizenship in the case of United States v. Wong Kim Ark, 169 U.S. 648 (1898). Wong had been born in San Francisco of parents who were Chinese immigrants who were not eligible for citizenship because of the Chinese Exclusion Acts. In 1894 Wong sailed to China for his second temporary visit but on return was detained in San Francisco and denied admission. The case made its way to the Supreme Court.

In a 6-2 decision Justice Horace Gray ruled that the limitation in the Fournteenth Amendment, “and subject to the jurisdiction thereof.” excluded from birthright citizenship only Indians and children born to persons with Diplomatic Immunity or forces engaged in a hostile occupation of U.S. territory.  Other children born to foreigners who are domiciled in the United States and thus “subject to the jurisdiction thereof” are citizens at birth. The court dismissed the language quoted above from the Slaughterhouse Cases, as dicta(legal observations in an opinion, not a part of its reasoning and, thus, without force).

The two dissenters included Chief Justice Melville Fuller and Justice John Harlan, whose more famous dissent was in the 8-1 decision in Plessy v. Ferguson, permitting “separate but equal” segregated public facilities. That dissent was famously vindicated 60 years later. The dissenters argued for the rule of  jus sanguinis where the parents were still “subject to any foreign power,” as citizenship was defined in the Civil Rights Act of 1866, discussed above.

Indians were excluded in the majority opinion only because of certain sovereign rights created by treaty, the remnants of which seem now largely confined to casinos.  American Indians were granted citizenship by the Indian Citizenship Act of 1924. The latter is an argument that Congress at least has the authority to define the meaning of “subject to the jurisdiction thereof” in the Fourteenth Amendment. Authority in the Executive to issue regulations arises from its responsibility to perform its functions such as managing immigration subject to existing laws in areas where the law is silent.

President Trump’s proposal is more about next Tuesday’s election than a serious effort to get control of immigration. Issuance of the executive order would not be the act of a principled conservative. Speaker of the House Paul Ryan has refreshingly departed from the prevalent political hypocrisy in which the parties swap principles and arguments depending on who is in power. Ryan persuasively denounced President Trump’s proposed executive order on the same basis as the Republicans in 2014 had opposed President Obama’s executive orders rewriting immigration law without authority.

There are perfectly good practical and moral reasons for a nation to keep control of immigration and its future citizenship. True adherence to our Constitution should require that to be done by Constitutional means. At the very least conservative politicians should require a Congressional Act to attempt to change the law. Truly conservative judicial philosophy would not endorse such a unilateral departure from established precedent. Liberal politicians who are on video a couple of decades ago complaining about the consequences of illegal immigration and birthright citizenship should help fashion real immigration reform.

Both parties, it seems, would rather have an issue than a solution.