President Donald Trump’s executive order attempting to restrict birthright citizenship, and the legal arguments supporting the order, fall flat, according to constitutional lawyers. However, experts warn, that whether judges choose to buy into the Trump administration's view of history comes down to whether "conservatives take history and tradition seriously" and what wins judges want to give the new administration.
Trump’s birthright citizenship executive order was blocked by a federal judge in Seattle on Thursday. Judge John Coughenour, a Ronald Reagan appointee overseeing the case, called the order “blatantly unconstitutional.” The order is aimed at rolling back birthright citizenship for children born in the country to parents who are not legal permanent residents.
"I am having trouble understanding how a member of the bar could state unequivocally that this order is constitutional,” Coughenour said. “It just boggles my mind.”
In this case, the Trump administration is leaning on 19th-century laws, like the Civil Rights Act of 1866, and deployed arguments that call into question not just the citizenship of the children of immigrants, but also the citizenship of Native Americans.
In the filing, Justice Department lawyers cite the Supreme Court case Elk v. Wilkins, in which the court ruled that “because members of Indian tribes owe ‘immediate allegiance’ to their tribes, they are not ‘subject to the jurisdiction’ of the United States and are not constitutionally entitled to Citizenship.”
Robert Peck, the founder of the Center for Constitutional Litigation, told Salon that he found “this attempt by the administration to utilize the 1866 law grasping." Peck explained that the United States government essentially treated Native American tribes as sovereign nations up until 1871, five years after the 1866 Civil Rights Act was passed, when Congress passed the Indian Appropriations Act.
In the Indian Appropriations Act, Congress stopped considering Native Americans as members of sovereign nations and instead considered them wards of the United States government. The question of whether Native Americans were subject to United States governance was further expounded upon in 1886, with the Supreme Court ruling in United States v. Kagama, in which the court held that Native Americans are “wards of the nation.”
"From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power," the court’s opinion read.
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In 1924, the question of Native American citizenship was revisited by Congress in the Indian Citizenship Act, which granted citizenship to all Native Americans born in the United States, while allowing states to decide whether Native Americans were allowed to vote. Because of this law, a 14th Amendment ruling on birthright citizenship would be unlikely to affect the citizenship status of Native Americans.
While there are some special cases in which Native Americans and Native American lands, described as “domestic dependent nations” are treated differently than other jurisdictions, Peck said that the federal government “continues to treat the members of the tribes as subject to federal jurisdiction for most purposes.”
Dan Lewerenz, the director of the Indian Law Certificate Program at the University of North Dakota, told Salon that the Trump administration's interpretation of the Elk v. Wilkins decision is also a misreading. He explained that while the ruling did find that Native Americans did not enjoy birthright citizenship, it wasn't simply because they were subjects of another government.
“The reason they were not subject is much more complicated. It’s not just that they were citizens of a foreign power, that being the tribe, but that they were born within the territory of a foreign power,” Lewerenz said. “A child from another country may still be subject to the jurisdiction of that foreign country but they are also subject to the jurisdiction of the United States.”
Lewerenz noted that "even if the Supreme Court accepts the poor analogy" presented by the Trump administration, Native Americans would still likely retain their citizenship due to other laws, like the Indian Citizenship Act of 1924.
Like the question of Native American birthright citizenship, the question of whether the children of immigrants enjoy the right of birthright citizenship was also settled over 100 years ago. In 1898, the Supreme Court decided in United States v. Wong Kim Ark, that the children born in the United States to immigrant parents maintain birthright citizenship.
While both of these questions have been settled for over a century, Samuel Moyn, a professor of law and history at Yale University, told Salon that he expects the Trump administration to highlight the history of those who argued against birthright citizenship in the case as it percolates through the courts. The ultimate strategy, Moyn notes, is likely to push the case into a “history-and-tradition” ruling, in which judges can decide what history they consider relevant to the case.
“I am kind of a skeptic of constitutional interpretation. I think that what the constitution means is always being decided in the present and it depends on how many justices want to take Donald Trump’s side,” Moyn said. “The Supreme Court is in an interesting spot because it has to define where it stands in relation to Donald Trump’s revolution. They have to decide what losses is it going to inflict on his administration and when is it going to let him.”
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Moyn highlighted that courts reviewing the case will have to decide whether Wong Kim Ark is “just about permanent residents and their children or is it about any foreigner who happens to be on the territory and has a child.”
“If it's the first Trump has an argument, if it's the second he loses,” Moyn said. “If he does have an argument and Wong Kim Ark is distinguished there is going to be a concerted debate about history and tradition,” Moyn said. “There is a very long history of recognizing the birthright citizenship of immigration.”
Then, Moyn said, the question for the arch-conservatives on the Supreme Court becomes “do conservatives take history and tradition seriously in this case?”
James Sample, a professor of law at Hofstra University, told Salon that “almost no scholars or constitutional lawyers, including very, very conservative thinkers, believe that this is constitutional or that it will succeed.”
“But even if it fails in the courts the mere fact that we’re talking about it means that Trump has succeeded in shifting the Overton window and Trump has succeeded in taking our focus to something that has been settled for 130 years,” Sample said. “There’s a special tone deafness to people of European descent and other descendants telling Native Americans what their citizenship is and is not.”
Sample said that Trump has effectively attempted to amend the Constitution via executive order, adding that “even bills passed by both houses of Congress and signed by the president don't get priority over the Constitution of the United States” and calling the attempt “arrogant.”
Sample, however, highlighted the practical consequences of such a legal theory being accepted, which could reopen the debate over which people born in the United States are considered citizens as well as casting people who have only ever lived in the United States into legal limbo.
“If you have a child who is by law a citizen of the United States and you separate the family that is already incredibly disruptive, but if you start down the road of saying that the children born on U.S. soil don’t get birthright citizenship then my question becomes this: Where exactly are those children supposed to go or supposed to be when the only home they’ve known is the United States?” Sample said.
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