Spoiling for a fight: Why challenging birthright citizenship is a win-win for Trump

This week, the Trump administration doubled down in its fight against birthright citizenship. The usual alliance of pundits, professors and press lined up to declare any challenge to birthright citizenship as absurd. Yet the administration seemed not only undeterred, but delighted.

There is a reason for that euphoria: They believe that they cannot lose this fight.

The legal case against birthright citizenship has always been tough to make, given the long-standing interpretation of the Fourteenth Amendment in federal courts and agencies. Many in academia and the media have shown unusual outrage toward anyone questioning the basis for birthright citizenship as a legal or policy matter.

This is perhaps best evinced by Harvard Law Professor Laurence Tribe's profane tirade the last time Trump raised this issue years ago: “This f---ing racist wants to reverse the outcome of the Civil War.”

Putting aside that the Civil War was fought over slavery, not immigration, many at the time would have disagreed that this was one of the outcomes of either the Civil War or the Fourteenth Amendment.

The Fourteenth Amendment starts and ends as a model of clarity, stating that “all persons born or naturalized in the United States” are “citizens of the United States and of the state wherein they reside.” However, sandwiched between those two phrases, Congress inserted the words “and subject to the jurisdiction thereof.” Those six words have perplexed many since they were first drafted.

For some, the line must be read as a whole and guarantees that anyone born within the United States becomes an American citizen. For others, the six words cannot be read out of the amendment as superfluous. They argue that this indicates that the parents must be here in a legal status, either as citizens or legal residents.

This division was evident at the very birth of the amendment. Some of those debating the question clearly believed that the amendment did cover anyone born on our soil regardless of the status of the parents. During the debates, Senator Edgar Cowan of Pennsylvania asked: “Is the child of the Chinese immigrant in California a citizen? Is the child born of a Gypsy born in Pennsylvania a citizen?” Senator John Conness of California answered this in the affirmative.

Others indicated the opposite understanding. Senator Jacob Howard, coauthor of the Fourteenth Amendment, said it was “simply declaratory” of the Civil Rights Act to protect freed slaves.

Howard assured senators, “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.” Likewise, Senator Lyman Trumbull, author of the 13th Amendment and the Civil Rights Act and a drafter of the Fourteenth Amendment, said that the six words included only those “not owing allegiance to anyone else.” 

This debate has raged for decades. While Democrats today portray anyone supporting the narrower interpretation as a racist or nutty, it was not long ago that many Democratic leaders opposed birthright citizenship, including former Senate Majority Leader Harry Reid (D-Nev.). He later denounced his old position with the same passion.

The Supreme Court itself seemed conflicted in the relatively few cases that touched on this issue. In 1872, in the Slaughterhouse Cases, the court interpreted the words “subject to its jurisdiction” as “intended to exclude from its operation” children of “citizens or subjects of foreign states born within the United States.” A few years later, in Minor v. Happersett, the court unanimously expressed “doubts” that citizenship would apply for “children born within the jurisdiction without reference to the citizenship of their parents.”

Then, in 1884, the Supreme Court handed down Elk v. Wilkins and held that parents must not merely be “subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and not subject to any foreign power”  To claim citizenship, they must owe the U.S. “direct and immediate allegiance.”

Supporters of birthright citizenship can cite countervailing authority to support their position. In 1898, the court ruled in U.S. v. Wong Kim Ark that “the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.”

Anti-birthright advocates stress the court's additional emphasis that the parents had to have “a permanent domicil[e] and residence in the United States, and [be] there carrying on business.” 

Yet in 1982, in Plyler v. Doe, the court voted 5-4 that the Fourteenth Amendment required Texas to provide public schooling to the children of illegal immigrants, noting that there is “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.”

There are strong arguments in favor of the broader interpretation to include birthright citizenship, and the case law favors the conventional interpretation. Indeed, it is not clear whether the Trump administration could secure a majority of the court to adopt the narrower interpretation, including potentially skeptical conservatives such as John Roberts, Brett Kavanaugh and Amy Coney Barrett.

What is clear is that such an interpretation would likely need to be made by the Supreme Court (rather than lower courts) given the existing precedent in favor of birthright citizenship.

So what makes this a win-win proposition for the Trump administration? The politics are stronger than the precedent.

Even if the administration loses before the Supreme Court, it will force Democrats again to fight against a tougher stance on immigration issues. Democrats maintained that position in the last election despite polling showing that 83 percent of Americans support deportations of immigrants with violent criminal records and almost half support mass deportation of all undocumented persons.

On birthright citizenship, roughly half of the country now opposes it, according to a recent Emerson poll. That is consistent with much of the world. The U.S. is actually in the minority on the issue.

Our closest allies in Europe reject birthright citizens and follow the common practice of “jus sanguinis,” or right of blood. We are part of a smaller number of countries following “jus soli,” or right of soil.

That is why the Trump administration may win either way. It will either secure a new interpretation from the high court or it could spur a campaign for a constitutional amendment. All of this could unfold around the time of the midterm elections, when incumbents of the president's party are generally disfavored. This is a wedge issue that many in the Republican Party might welcome.

Indeed, the most relevant quote from the Civil War period may be that of Gen. Ulysses S. Grant in the final year of the war, when he declared "I propose to fight it out on this line if it takes all summer." It was a war of attrition, and Grant liked the odds. Some conservatives seem to have the same view of the lay of the land in the fight over birthright citizenship.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.