Trump and the Executive Order on Birth-Right Citizenship

President Trump announced that he is considering issuing an Executive Order declaring that his administration would no longer treat an illegal alien's newborn child as a US citizen just for being born in America. This has set hair on fire across Washington DC. Democrats, reporters, law professors, and the Speaker have declaimed it.

So the question is, does Trump have a leg to stand on?

I have written about this issue before. In that post, I laid out much of the argument back and forth about birth-right citizenship. Since that time, I have thought about the matter from time to time. I have just re-read that post, and I think some of the comments need to be clarified or better supported in light of the current controversy. 

So let me start again.

In essence, this addresses two questions:

1. How does a person become a natural-born citizen of the USA?
2. Who can be a natural-born citizen?

Constitution as a Legal Document 

As I read the Constitution, I see it as a legal document written by lawyers. The Committee of Detail had 4 out of its 5 members as admitted members of the bars from their respective states. Of these 4, two were future Chief Justices of the United States, one was an original Associate Justice, and the remaining lawyer was the first Attorney General of the United States. These future appointments and confirmations attest to their credibility as lawyers. So it is reasonable to expect the Committee of Detail looked at the Constitution with lawyers' eyes.

The draft went to the Convention, then to the Committee on Style. This committee chaired by William Samuel Johnson (2 degrees from Yale and a lawyer) and consisted of Alexander Hamilton, James Madison, and Rufus King. All lawyers -- except James Madison, the Father of the Constitution. 

Of the 55 delegates, I believe 34 were lawyers or had "read the law," which was the phrase for studying to be admitted to the bar.

So the Constitution in its written form was written by lawyers. The odds that the vocabulary that they knew and understood would be in the document itself is extraordinarily high. There was no movement to "write in plain English" at that time. (Ironically, documents written in "plain English" cause a lot of litigation today, like insurance policy contracts.)

If the Constitution was written by lawyers, a good method for interpreting the Constitution is to understand the legal vocabulary of the day.

Legal Terms to Analyze 

For purposes of this debate about natural born citizens that becomes a bit more difficult and dicey. The only reference to "natural born" in the original text (1787) is the requirement in Article II, Section 5 that says, "No Person except a natural born Citizen . . . shall be eligible to the Office of President." There is no definition. There is no explanation. There is no citation to explain its meaning. 

Then when the Fourteenth Amendment passes Congress (1866), the first line of Section 1 reads, "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." So the key language is "All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens . . . ." The argument is what does it mean to be "subject to the jurisdiction thereof"?

So we know that the Founders knew what it meant to be a "natural born Citizen" and the Congress amended the definition of natural born citizen to be all persons born in the US and subject to the jurisdiction thereof. This suggests that there was one meaning in 1787 that needed amending in 1866.

Defintion in 1787

So first, let's consider what the definition in 1787 was to the 34 lawyers at the Constitutional Convention.

Being well read lawyers to be admitted to the bar, the Constitutional delegates who were lawyers likely all read the great summary text of the English Common Law, Lord Chief Justice Blackstone's Commentaries on the English Common Law (1765). The most significant for our purposes is Book One ("Of the Rights of Persons"), Chapter 10 ("Of the People, whether Aliens, Denizens,

or Native").This Chapter deals with the definition of "The People." His analysis depends on three categories of people (he explains the mechanics of why this categorization, but I will omit for brevity) into Aliens, Denizens, and Native. Natives are "natural-born subjects." "Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it."

The basic premise starting the analysis is where a person is born and what is that person's legal status due to his birth.

Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth[m]. For, immediately upon their birth, they are under the king's protection; at a time too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature[n]. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years-358- hence as well as now.

 * * *

Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king's dominion and protection[p]: and it ceases, the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only: and that for this reason, evidently founded upon the nature of government; that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully. As therefore the prince is always under a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason their allegiance due to him is equally universal and permanent. But, on the other hand, as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire.

So Blackstone establishes that the original definition of natural born subject is one born in the king's dominion (e.g., England or Colonial America) and an alien is one born elsewhere. He establishes that a natural born subject does not lose his rights as a natural born subject by traveling abroad. His status is established by his natural allegiance to the crown by the circumstances of his birth and not the circumstances of his travels. Blackstone also allows aliens are protected temporarily by the crown while visiting the king's dominions but not beyond. The alien's allegiance to the crown is limited to his time in the king's dominion only.

Blackstone further explains that children born overseas to a British subject are equally within the king's protection.

When I say, that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration[y], for the naturalization of children of his majesty's English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king's embassadors born abroad were always held to be natural subjects[z]: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father, the embassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants[a]. But by several more modern statutes[b] these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

Blackstone then presents the proposition that alien's children born in the king's dominion are natural born subjects.

The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges-362- of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien

So with the general rule that all born in the king's dominion are natural born subjects, Blackstone looks for exceptions. A denizen is a person who has received royal letters patent to make him a subject of the king. But in his day, that needed a parliamentary act and an oath of allegiance before Parliament to make the person a naturalized subject with full rights to own land and give an inheritance.

So we see from Blackstone that the defining characteristic of a natural born subject was a person born in the king's dominion or born to a subject (assuming no criminal sanction against the parent) because of natural allegiance arising from the protection of the crown. The exceptions were children of aliens who were present in the king's dominion on the business of another country owed no duty of allegiance to the British crown. They were not natural born subjects.

So a reasonable interpretation is that the lawyers at the Constitutional Convention had the idea that "natural born citizen" was the same idea as a "natural born subject," but the concept of royalty was abolished and the allegiance was to the nation and not to the person of the crown. This makes sense in light of the doctrine of in pari materia (upon the same matter or subject). This would mean birth in the dominions of the United States for a citizen or alien would be enough to create citizenship, unless the alien was in the US on business of a foreign government. The duty of allegiance arose naturally by the location of the place of birth or family relationship, if abroad.

Definition in 1866

There is a general rule of interpretation of the law that use of a word should be interpreted the same way across a document, unless some reason to change the definition is explicitly set forth. So in the Constitution the word "president" is used in two different contexts. First, the President of the United States is the chief executive officer under Article II. Second, the Vice-President of the United States is also the President of the Senate under Article I. The Constitution is clear that these two uses of president don't refer to the same person or the same job.

There is another rule of interpretation of the law that an act of a legislative body is set out to fix a particular defect or mischief that the current law does not address, known as the Mischief Rule or the Rule of Heydon's Case. The idea is that judges should advance the remedy sought by the legislature and suppress the means of continuing evasion of the remedy.

The Fourteenth Amendment is largely understood to suppress the Post-Civil War southern states from attempting to define freed slaves as some other status than voting citizen. A simple solution was to adopt the existing Blackstone rule that anyone born in the United States was a citizen. To do that the Fourteenth Amendment's first sentence could have read, "All persons born or naturalized in the United States, and subject to the allegiance thereof, are citizens of the United States and of the State wherein they reside." That would have served as a continuation of Blackstone's interpretation that was well known in the legal community at the Constitution's writing and many decades thereafter.

However, the author of the amendment chose to change the key vocabulary for natural born citizens. He chose "jurisdiction" and not "allegiance." There had to be a reason for this.

Congress passed the Civil Rights Act of 1866 to overturn the Dred Scott decision (declaring slaves are not citizens) and to give freed slaves the rights of citizenship, saying that persons born in the US and not subject to a foreign power are US citizens. 

That all persons born in the United States and not subject to any foreign power, excluding Indians, not taxed, are hereby declared to be citizens of the United States ; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States....

Some doubted that the Thirteenth Amendment abolishing slavery gave Congress the authority. They further feared that a later Congress could repeal the Act. So they sought an additional amendment. 

As the debate on the Fourteenth Amendment continued, members of Congress threw around terms like "subject to the authority of the United States," "allegiance," and "jurisdiction." Some argued that Indians were subject to the jurisdiction. Others argued not. 

The lead proponent of the amendment Sen Lyman Trumball said, 

What do we [the committee reporting the clause] mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means." He then proceeded to expound upon what he meant by "complete jurisdiction": "Can you sue a Navajoe Indian in court?...We make treaties with them, and therefore they are not subject to our jurisdiction.... If we want to control the Navajoes or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense?.... Would he [Sen. Doolittle] think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another?... It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens.

 The author of the citizenship clause Sen. Jacob Howard of Michigan said,

Indians born within the limits of the United States, and maintain their tribal relations, are not, in the sense of the amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations. 

Even in the later parts of the debate, many senators questioned whether the courts' previous actions undermined the proponents' proposed interpretation.  (In 1924, Indians were granted US citizenship by statute.)

So we can see that the Fourteenth Amendment was intended to exclude some persons from being natural born citizens because the traditional language was changed. This means that there was clearly a different intent. The debate about what that changed intent was is not easily resolved to universal satisfaction.

Most readers are likely to be less than satisfied that the use of the word "jurisdiction" is clean and clear.

I do suggest that changing from "allegiance" to "jurisdiction," using Blackstone's definition of who owes allegiance, has a significance that cannot be ignored. Blackstone's allegiance comes automatically by birth unless an exception exists: parent with foreign loyalty in government service.

Effect of Late Immigration Laws

At the time that the Fourteenth Amendment was passed and ratified, immigration rules were almost non-existent. This meant that entry rules were limited. You arrived and stayed; you were a resident. Naturalization had restrictions from almost the first Congress, but they were more about statements of intent to seek citizenship and waiting periods, not exclusion from the country. So as the debate on the Fourteenth Amendment took place, children born in the United States to aliens immigrating here was a regular occurrence. The language of the debate is consistent with this conclusion.

By 1898, the Chinese Exclusion Act (prohibiting most Chinese immigration without Chinese government emigration papers, terms negotiated by treaty) had been in effect for a couple of decades. A Chinese family lived in the states, visited China and returned to the US. When the son born in the US applied for citizenship, he was denied citizenship. The Supreme Court overturned this result based on the Fourteenth Amendment of birth in the US. The Act was found Constitutional by the Supreme Court, declaring that "the power of exclusion of foreigners [is] an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution."  The act was repealed in 1943.

In 1921, the Emergency Quota Act restricted immigration to this country for Southern Europeans. No restrictions were imposed on Central Americans, including Mexico. Further restrictions were imposed in 1924. The 1924 Act required a visa for entry and imposed deportations for violators of the quotas. For the first time it was illegal to be present in the US without documentation.

So the American practice from 1790 to 1924 is to only pay attention to Blackstone's natural born citizens and aliens. With the creation of visas, we have a new status of immigration: documented, legal immigration. The Chinese Exclusion Act and following exclusionary acts prevented immigration, but in the Ellis Island fashion was handled by excluding violators. Now the law allowed entry with documents issued overseas.

Accepting Jurisdiction of the US in a Visa World

So a new problem for the definition of natural born citizen arises. Is the child "subject to the jurisdiction" of the United States if the parent is an undocumented or expired-document illegal alien? Are those parents subject to the jurisdiction?

In the debate over the Fourteenth Amendment, the question put by Sen. Turnbull about Indians being subject to the jurisdiction of the US is whether a citizen could sue an Indian in American courts. As a practical matter, this question arises anew. Can you sue an illegal alien in court? The courts would say, "Yes," because they take all comers. But as a practical matter, it just isn't so easy. Illegal aliens are highly unlikely to appear in court if they fear the outcome is negative or they will be arrested. That means they pick and choose when they want to submit to the jurisdiction of the courts.

In more forgiving definition of aliens, Blackstone would merely expect temporary allegiance from the immigrant as a basis to grant his child natural born citizen status. In the more restricted "subject to the jurisdiction" interpretation, something more is required to obtain natural born status. Illegal immigrants offer no allegiance by breaking the law by entering the country or staying without a visa, use fake IDs to hide their illegal presence or avoid taxes, or otherwise avoid obligations that a citizen would be required to uphold. They don't act as if they have accepted the jurisdiction of the United States.

In a court of law, a foreigner can be sued and avoid any liability, unless his home country has a treaty with the US on litigation. This applies to criminal law. We have seen this played out recently with the Special Prosecutor Robert Mueller's screw up. He indicted Russian spies and Russian companies. Most have snubbed their noses at Mueller. One company chose to fight. It hired an American lawyer and showed up in court. It "accepted the jurisdiction" of the American courts, meaning that it accepted the authority of the court over the company.

Accepting the jurisdiction means that you follow the legal authority and do as ordered by properly constituted agents of the government.

Do illegal alien accept the jurisdiction of the United States? If they violate its laws on entry, identification, and appearing in court as ordered, how can they be seen as accepting the jurisdiction let alone being subject to it.

If the alien won't accept jurisdiction voluntarily, why should jurisdiction and legal privileges be proffered or forced upon them? No duty owed; no privilege obtained.

Trump's Order

So all of this background to deal with President Trump's theoretical order to refuse to allow natural born status to illegal aliens' children.

These families do not accept American jurisdiction unconditionally. They pick and choose the benefits they want. They are not showing any allegiance. No matter how you phrase it, to give the children natural born status is to effectively forgive the parents of illegal actions that should have excluded them from the country or caused their deportation. Only through the luck of timing of the birth were these actions not carried out before the birth. The same child born in Mexico one day after the mother's deportation would have no claim to American citizenship. How can omission to act obtain the same result?

Put another way, to this point, we are de facto forgiving criminal acts by failing to carry out the remedy for these criminal violations. As a matter of legal principle, no legal rights can be conveyed by an illegal act. If I steal your ring, I cannot promise to sell it to a purchaser on a promissory note, then sue the purchaser to enforce the promissory note. The sale of a stolen item is illegal and cannot be the basis of a lawsuit.

The act of entering without a visa, staying on an expired visa, or using fake IDs to be here cannot convey a legal right of being under the jurisdiction of the US legally. The alien has committed at least one criminal act in violation of the jurisdiction of the United States.

That means that such person with a child born during the unremediated criminal act needs an act of clemency to reinstate their good standing and acceptance of the jurisdiction of the United States. They need a presidential pardon.

So the problem is not with Trump's theoretical order. The problem is that we have been granting citizenship to ineligible persons born in the US without a proper remedy for the problem. Trump's order would do more to restore law and order than the current elitist dismissal that there is no problem.

UPDATE: On a different website, one commenter mentioned that the phrase "and of the State wherein they reside" would also exclude tourists from having American citizen children. They presumption is that you have to be resident. To be resident, an immigrant must live there and intend to remain their indefinitely. A tourist visa does not allow the ability to remain indefinitely. 

UPDATE 11/1/2018: Interesting to see a similar argument at Fox News by Hans A. von Spakovsky of the Heritage Foundation.

Solution for Determining Who are Congressional Witnesses?

If Monica Showalter is correct, that sending letters to Congressional Committee Members on a matter before the committee can be prosecuted for perjury, that suggests a quick solution to most of these judicial committee allegations.

In a court of law, the cause of action is started with a complaint that outlines the basic facts: who, what, when, where, and how law was violated. The defendant then has a chance to address these allegations simply to identify the issues in dispute.

So I would simply suggest that the Judicial Committee for all future allegations against a judicial nominee that a letter describing any legal or ethical violations at least meet the requirements of the Federal Rules of Civil Procedure for a Complaint. At that point, the world is on notice about what she is alleging. The letter would only be accepted if it was addressed to the Chair and Ranking Committee Member. That would invoke the law. The correspondent has some skin in the game (see Nasim Taleb's book of the same name for details on why that is important).

If they are not willing to go to jail for gross lies, we should not have to suffer their potentially libelous claims as if they were true. If they are telling the truth or telling the story with a good faith belief that it is true, there is no risk of jail.

Scurrilous lies are not a basis for Congressional, Judicial, or Executive investigation or action. Failing to take a risk of perjury is a necessary first step to avoid the risk of wasting time on what could turn out to be scurrilous lies.

Why Comey memos should be released

This is very simple. Byron York has written well about it. He hits one point that is really the key.

If the memo supposes to be proof of Trump's obstruction of justice, who is the proper investigator?

The special counsel is a member of the executive branch with special dispensation from following normal protocols. As such, it is proper to investigate where conflicts of interest lie. The problem with the appointment process is that it ignores the Constitution. The president vice-president and federal judges are immune from prosecution while in office. A grand jury has no jurisdiction, no matter what court precedent would do to twist this fact.

So the House of Representatives is the proper grand jury for these immunized officers. So if the House demands access to evidence, the special counsel should respond as he would to a grand jury making such a demand.

This is simple. Occum's Razor simple. To create other arguments and stillborn claim Constitutional compliance only results in farce. Is this political? See Andrew McCarthy's book on that subject. Spoiler alert: yes, it is inherently and intentionally political.

So the House should vote a resolution ordering the Special Counsel to deliver the memos. Failure to comply should be met with an immediate Contempt of Congress citation and defunding of Mueller's office for violation of the Constitution.

Publius of the Federalist Papers expected the branches to defend their own privileges, not be a mere lapdog to the Supreme Court and the judiciary. Court precedent is irrelevant. Speaker Ryan needs to stand up and defend his committee chairs more aggressively. These votes need to be scheduled immediately. If there are concerns about national security, those can be address by procedures set forth in the House resolution and contempt citation.