The Citizenship Clause and “Birthright Citizenship”: A Brief Legal Overview

The Citizenship Clause and “Birthright Citizenship”: A Brief Legal Overview

Legal Sidebari

The Citizenship Clause and “Birthright
Citizenship”: A Brief Legal Overview
November 1, 2018
President Trump indicated in a recent interview that he plans to issue an executive order that will limit
recognition of birthright citizenship to exclude the children of certain aliens, including presumably
unlawfully present aliens. Absent a concrete proposal from the Trump Administration, CRS cannot
analyze the idea in detail. However, the issue of birthright citizenship has come into public focus and is
likely to be of interest to Congress going forward.
Under federal law, nearly all people born in the United States become citizens at birth. This rule is known
as “birthright citizenship,” and it derives from both the Constitution and complementary statutes and
regulations. The Citizenship Clause of the Fourteenth Amendment states that “[a]ll 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.” The Immigration and Nationality Act (INA), in turn, declares
certain persons to be U.S. citizens and nationals at birth. INA § 301(a) more or less tracks the Citizenship
Clause in stating that “a person born in the United States, and subject to the jurisdiction thereof” is a
“national[] and citizen[] of the United States at birth.” (The INA also extends citizenship at birth to
various persons not protected by the Citizenship Clause, such as those born abroad to some U.S. citizen
parents.) Federal regulations—including those that govern the issuance of passports and access to certain
benefits—implement the INA by providing that a person is a U.S. citizen if he or she was born in the
United States, so long as the parent was not a “foreign diplomatic officer” at the time of the birth.
Any executive proposal to restrict birthright citizenship would probably take the approach of interpreting
INA § 301(a) to mean that the children of certain aliens are not “subject to the jurisdiction” of the United
States and therefore do not acquire citizenship by virtue of birth on U.S. soil. A bill introduced in the
House in the current Congress, like other legislative proposals from previous Congresses, would take a
similar approach to defining the “subject to the jurisdiction” language in the Fourteenth Amendment.
Following the President’s statements, at least one Member of the Senate has announced plans to propose
legislation “along the same lines as the proposed executive order.”
The weight of current legal authority suggests that these executive and legislative proposals to restrict
birthright citizenship would contravene the Citizenship Clause. At least since the Supreme Court’s
decision in the 1898 case United States v. Wong Kim Ark, the prevailing view has been that all persons
born in the United States are constitutionally guaranteed citizenship at birth unless their parents are
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foreign diplomats, members of occupying foreign forces, or members of Indian tribes. In Wong Kim Ark,
the Court held that a man born in the United States in 1873 to parents who were Chinese nationals
acquired citizenship at birth under the Fourteenth Amendment. The parents were ineligible to naturalize
under the law of the time, but they had established “permanent domicil and residence in the United
States.” The Court reasoned that the Citizenship Clause should be “interpret[ed] in light of the common
law” and grounded its holding in the common law principle of jus soli or “right of the soil.” Pursuant to
that principle, “every child born in England of alien parents was a natural-born subject, unless the child of
an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of
the place where the child was born.” The Court interpreted the “subject to the jurisdiction thereof”
requirement in the Citizenship Clause to mean that the federal government could deny citizenship to
people born on U.S. soil who fell within these two narrow, common law exceptions.
The Court also acknowledged that, under the 1884 case Elk v. Wilkins, the federal government could also
exclude members of Indian tribes from birthright citizenship. Elk held that “Indians born within the
territorial limits of the United States” were not “born in the United States and subject to the jurisdiction
thereof” under the Citizenship Clause because they “ow[ed] immediate allegiance” to their tribe.
Construing this holding, the Wong Kim Ark Court reasoned that it reflected the tribes’ “peculiar relation to
the national government, unknown to the common law.” The Wong Kim Ark Court thus concluded that the
Elk holding “had no tendency to deny citizenship to children born in the United States of foreign parents
of Caucasian, African, or Mongolian descent, not in the diplomatic service of a foreign country.”
(Congress extended birthright citizenship to Native Americans in the Indian Citizenship Act of 1924.
Current law provides that “a person born in the United States to a member of an Indian, Eskimo, Aleutian,
or other aboriginal tribe” acquires citizenship at birth.)
Outside of the narrow exceptions it recognized, the Wong Kim Ark Court reasoned that the guarantee of
the Citizenship Clause “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 or color, domiciled within the United
States.” “To hold that the fourteenth amendment of the constitution excludes from citizenship the children
born in the United States of citizens or subjects of other countries,” the Court concluded, “would be to
deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage,
who have always been considered and treated as citizens of the United States.” Accordingly, the Court
held that Wong Kim Ark had acquired citizenship at birth despite his parents’ alienage and despite the bar
on their naturalization.
Wong Kim Ark predates the modern era of immigration law. Wong Kim Ark was born in 1873, two years
before Congress enacted what are often regarded as the first generally applicable federal restrictions on
voluntary immigration in the Page Act of 1875. That law barred the entry of some convicts and
prostitutes. The first Chinese Exclusion Act followed in 1882 and barred the entry of “Chinese laborers.”
Congress enacted the first numerical restrictions on immigration to the United States in 1921 and the
original version of the INA in 1952. As such, Wong Kim Ark does not plainly address whether the
Citizenship Clause prohibits the denial of birthright citizenship to the children of alien parents who are
unlawfully present or who, while permitted to be in the United States on a temporary basis (e.g., for
business or tourism purposes), lack lawful permanent resident status under the INA.
Yet Wong Kim Ark clearly interprets the “subject to the jurisdiction” requirement to allow the federal
government to carve out only the narrow exceptions discussed above to the general rule of birthright
citizenship. Because none of these exceptions permits the denial of birthright citizenship based on the
alienage of parents who are not diplomats, the case is most often interpreted as barring the federal
government from accomplishing such denial through any means other than a constitutional amendment.
Since Wong Kim Ark, the Supreme Court has not made any further holdings on the extent to which
Congress or the Executive may deny citizenship to a person born in the United States based on the
alienage of his or her parents. The reasoning in one significant twentieth century decision, however,

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arguably bears on the issue. In the 1983 case Plyler v. Doe, the Court held that the Equal Protection
Clause of the Fourteenth Amendment prohibits states from denying free public education to children on
account of their unlawful presence in the United States. The Equal Protection Clause, which appears at
the end of the sentence that follows the Citizenship Clause in the Fourteenth Amendment, provides that a
state shall not “deny to any person within its jurisdiction the equal protection of the laws.” The Court
reasoned that unlawfully present children are “within [the] jurisdiction” of a state for equal protection
purposes so long as the children are “within the State’s territorial perimeter” and “subject to the laws” of
the state. The case did not concern citizenship, but it cited Wong Kim Ark for the proposition that the term
“jurisdiction” when used in the Fourteenth Amendment has a “predominantly geographic sense.” The
Plyler Court also cited a 1912 treatise for the proposition that “no plausible distinction with respect to
Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United
States was lawful, and resident aliens whose entry was unlawful.”
Some legal scholars take the position that it would not violate the Fourteenth Amendment to deny
birthright citizenship to the children of certain aliens. They express various views that, in general, rest on
the argument that the term “jurisdiction” in the Citizenship Clause means a “more complete, allegiance-
obliging jurisdiction” than the concept of territorial jurisdiction to which the Supreme Court adhered in
Wong Kim Ark and Plyler. Under this more restrictive interpretation of the jurisdiction requirement,
children born to some alien parents are not “subject to the jurisdiction” of the United States because
(according to these scholars) the alien parents do not owe allegiance to the United States. These scholars
tend to regard Wong Kim Ark as wrongly decided. They also tend to argue, however, that because the
Chinese parents in that case were permanent residents, the case could be interpreted narrowly to mean
only that the Citizenship Clause protects the birthright citizenship of the children of lawfully present
permanent residents, as opposed to unlawfully present aliens or nonimmigrant aliens not “domiciled” in
the United States.
In light of Wong Kim Ark and Plyler, Supreme Court precedent does not favor the more restrictive
interpretation of the “subject to the jurisdiction” requirement, which is commonly regarded as a “minority
view.” Nonetheless, 1) the Supreme Court has yet to decide how the Citizenship Clause applies to the
children of aliens who lack lawful permanent resident status under the INA, and 2) the primary authority
on how the clause applies to people with non-citizen parents is 120 years old. Thus, while extant legal
authority indicates that neither Congress nor the Executive may deny recognition of birthright citizenship
based on the immigration status of a person’s parents, the Supreme Court has not firmly settled the issue
in the modern era.

Author Information

Ben Harrington

Legislative Attorney

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