Does the 14th Amendment mandate that the children born of illegal immigrants and birth tourists are automatically American citizens? The answer is not as obvious as has been suggested in the press.

President Trump’s announcement that he would alter the rules of birthright citizenship by executive order is the latest episode in his administration’s push against the immigration system that has prevailed since 1986. It also shows again how the fight over policy choices in America is increasingly waged in the courts and through executive action instead of where it is meant to take place: in Congress.

Does the 14th Amendment mandate that the children born of illegal immigrants and birth tourists are automatically American citizens? The answer is not as obvious as has been suggested in the press. The solution to that ambiguity is that Americans have to decide what policy their country should adopt, and Congress has to pass that into law. If the past few decades are any indication, Congress will continue to shirk this duty and the people will continue to let them get away with it.

What the Supreme Court Actually Said

Trump has staked out a position that would represent a significant shift in the definition of citizenship. In response, his antagonists in the news media have not only disagreed with his aims, but have argued that the Constitution makes Trump’s goal impossible. It is, as has become typical from Trump’s interactions with the media, a step too far. In their zeal to oppose the president, they have drastically overstated the degree to which birthright citizenship is the irrefutable law of the land.

The birthright citizens brigade claims that Supreme Court rulings in United States v. Wong Kim Ark and Plyler v. Doe prove conclusively that anyone born in this country, even the children of illegal immigrants, is automatically a citizen. Those claims are rarely accompanied by a citation to any specific lines in those cases. If that raises your suspicions, it should. The rulings in Wong Kim Ark and Plyler could be mean what they claim, but such an argument has never explicitly been before the Supreme Court, much less accepted by it.

Wong Kim Ark was an 1898 case about the Citizenship Clause of the 14th Amendment. The plaintiff Wong’s parents were born in China. Under the racist naturalization laws then in place, they could never become citizens, but they had immigrated to the United States legally and were entitled to remain here. Wong was born in San Francisco and had assumed the 14th Amendment applied to him until he was refused re-entry to the United States after a visit to China.

The 14th Amendment declares that, “All 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.” Interpreting that clause in light of English common law on the subject, the Supreme Court in Wong ruled that nearly anyone born in the United States was a citizen from birth.

They noted four exceptions: “children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and … children of members of the Indian tribes owing direct allegiance to their several tribes.” As Wong fell under none of these exceptions, he was a citizen.

Rules and Exceptions

All of these exceptions have their roots in the 14th Amendment’s phrase “and subject to the jurisdiction thereof.” At just six words, it is brief, but like most terms of art in the law, it incorporates centuries of legal tradition. All of the four exceptions to the rule in some way involve people who were born of parents who had not accepted the jurisdiction of the United States. (The final exception, members of Indian tribes, no longer applies. Native Americans have all been citizens of the United States since the Indian Citizenship Act of 1924.)

In 1982, the Supreme Court took up the case of Plyler v. Doe. This case is often cited for the idea that the children of illegal immigrants are citizens, but the rights of such people were never at issue in Plyler. That case instead was about a Texas law that barred illegal immigrants from public schools. Not the American-born children of illegal immigrants, but illegal immigrants themselves. As the dissenters noted in that 5-4 decision, “Children born in this country to illegal alien parents, including some of appellees’ siblings, are not excluded from the Texas schools.”

Although the legal analysis focuses on the same section of the 14th Amendment that determines birthright citizenship, a different sentence of that section is at issue. While the first sentence defines who is a citizen, the second merely states that, “No State shall … deprive any person [emphasis added] of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The result in Plyler was not based on who was a citizen, it was based on who was a person. As the court noted accurately, “Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term.” Because illegal immigrant children were obviously people, Texas could not deprive them of equal protection of the law, which the Supreme Court here held included access to public education.

The confusion arises when the author of the Plyler decision, Justice William J. Brennan, writes in a footnote about his opinion of the first sentence of that clause, even though it was not at issue in the case. He cites Wong Kim Ark, which states: “It is impossible to construe the words ‘subject to the jurisdiction thereof,’ in the opening sentence, as less comprehensive than the words ‘within its jurisdiction,’ in the concluding sentence of the same section; or to hold that persons ‘within the jurisdiction’ of one of the States of the Union are not ‘subject to the jurisdiction of the United States.’”

There are a couple of problems here. First, American courts are only permitted to rule on the subject before them, not on any potential controversy that catches their fancy. Plyler was about the rights of illegal immigrants, and the court ruled on that. But the question of whether some of those people were actually citizens was never at issue in Plyler, and Brennan’s thoughts on the matter are what lawyers call “dicta,” that is, merely words, not law.

The second problem is that the court in Wong indeed said what Brennan quoted it as saying, but six pages later that opinion also enumerated the four exceptions to the rule, as discussed above. Had this been an issue in Plyler, this out-of-context quote might have drawn more objections. As it did not, the argument proceeds mostly upon equal protection grounds — a separate issue from citizenship.

An Open Question

Trump may have goaded the media into overstating their case, but Trump’s version of the law is also not obviously true. In addition to the four exceptions named in Wong Kim Ark, two more anomalous situations have arisen more recently: the children of illegal immigrants and the children of birth tourists. Any court ruling on the subject would have to analyze these within the framework of Wong Kim Ark.

The result of that analysis is far from certain. Illegal immigrants are not like diplomats, because diplomats enter the country with our permission and their presence here is governed by treaties. Nor are they like an invading army, contrary to the more hysterical cries of nativists. They come here to get jobs, not to conquer the land for a foreign enemy.

An analogy to Indian tribes does not work, either, since those semi-sovereign nations also have their basis in treaty and law, both of which govern peoples who were here before the United States existed. People “born on foreign public ships” is closer, but even that is not completely on point, since foreign sailors stay in American ports for a far shorter time than illegal immigrants stay in the United States.

That it is an open question, constitutionally, is not a bad thing. That just means that the question is a policy question and that we, through our legislature, should decide the right thing for America to do about it.

Rule by Decree

Both sides have missed something in their analysis of how policy questions should be decided in a democratic republic. Trump’s position is, perhaps, the more egregious. In saying that he wants to change the qualifications for citizenship through executive order, he seriously misunderstands the nature of the presidency.

But if he does so, he is not without precedent. Congressional delegation has been enlarging the power of the executive branch at their own expense since the New Deal. For most of our history, laws in the United States have been made by legislatures. The growth of the administrative state has meant that more of the government rules that affect Americans’ lives come from little-noticed bureaucratic enactments.

President Obama took this trend to new heights when promising to rule with “a pen and a phone” if Congress did not act in accordance with his wishes. In the field of immigration law, specifically, Obama’s actions were the most egregious. After Congress declined to pass legislation granting a path to citizenship for illegal immigrants who arrived as children, Obama attempted to do so without them.

His Deferred Action for Childhood Arrivals policy (DACA) was announced in an executive branch memo in 2012 and purported to grant work permits to illegal immigrants who arrived as children. In 2014, he launched Deferred Action for Parents of Americans (DAPA) by the same means, attempting to allow illegal immigrants who came here as adults to remain and work legally if they had children who were born here or otherwise permitted to stay here.

All of this was well beyond the authority delegated to the president in our immigration laws, and courts eventually struck down DAPA. DACA, too, has been held unconstitutional in cases that are still wending their way through the judiciary. But in the meantime, having heard Democrats and the media defend Obama’s policies, is it not surprising that Trump thought he could act by the same extra-constitutional means?

The Solution to the Problem

The courts have stepped in to defend the separation of powers in the DACA and DAPA cases, but their role in Congress’s diminishing strength is not blameless. Congress started ceding power to the presidency in the 1930s, but since the 1950s the courts have been all too willing to grab some for themselves.

Why not leave to the legislature the business of making laws? Most often it is because the legislature was not accomplishing the result the courts wish. In this, the courts are no different than Trump and Obama in finding that the end justifies the means, and the policy result is more important than the rule of law.

The harder question to answer is this: Why has Congress acquiesced in its own destruction as a policy-making body? This is a flaw in the system the Founding Fathers frankly did not foresee. They created a system where each separate branch would have only a part of the power of government and, they believed, would jealously guard its control of that part.

The Founders were brave men, and did not anticipate how cowardly and lazy their successors in Congress would be. Policy-making is hard work. Compromises are difficult to arrange with many contending interests at play, and doing so in a workable manner requires studying the issue and risking political capital to make a solution that works and will endure.

It is much easier to make speeches and blame the other branches for the lack of action. Republicans bear some blame in this, as they have steadfastly refused to pass any immigration reform since the 1990s, and no major overhaul since 1965. But Democrats play the same games. This year, when Democrats proposed a bill to abolish the Immigrations and Customs Enforcement agency, House Speaker Paul Ryan unexpectedly allowed it to come to a floor vote.

Instead of being pleased at the chance to enact a policy they believed in, the bill’s sponsors were outraged that they were being asked to vote publicly for the thing they claimed to want. Ryan knew the bill was just an excuse to make speeches and raise campaign funds and he expertly called their bluff.

The Difficult Course

If the Constitution does not dictate one course or the other, what does that mean for the children of illegal immigrants and birth tourists born in America? It means that we, the people, have to actually make a choice about policy. We and our elected representatives in Congress need to debate the issue, consider the pros and cons, and make a decision. That is the way laws are supposed to get written, and it can be that way again with a little courage and a bit of effort.

This is not the easiest course. It would be simpler to leave everything to the nine black-robed philosopher-kings and -queens sitting on the high court. But that kind of government does not befit a free people. A democratic republic, the rule of law, the consent of the governed — these are the birthrights of all Americans. It does take more effort than being ruled by a king, but the expenditure of time and energy is worth it to secure our freedom.

There are decent arguments on both sides of the birthright citizenship debate. I, personally, am convinced by articles published in these pages by Ben Domenech and Lyman Stone, who argue that birthright citizenship is a good idea independent of its constitutionality. But we all must return to a state of mind that lets us believe something is good without also insisting that the Constitution demands it.

The Constitution says a lot of things, and many of them are good. But the document is not—and was never intended to be—the sum of all political wisdom. Many policy choices are intentionally left to the people. Birthright citizenship is one of them, and it is up to us to decide its status in law.