On substance, I believe President Trump is right on birthright citizenship — the 14th Amendment does not require it. I do not believe, however, that the president may change the interpretation of the 14th Amendment, which has been in effect for decades, by executive order, as he is reportedly contemplating.
My friend John Eastman explained why the 14th Amendment does not mandate birthright citizenship in this 2015 New York Times op-ed. In a nutshell, the Amendment states: “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.” The highlighted term, “subject to the jurisdiction thereof” was understood at the time of adoption to mean not owing allegiance to any other sovereign. To take the obvious example, if a child is born in France to a married couple who are both American citizens, the child is an American citizen.
I won’t rehash the arguments on both sides. With due respect to our friend Dan McLaughlin (see here), I think Professor Eastman has the better of the argument. As I have observed before, and as we editorialized when Donald Trump was a candidate (here), this is a very charged issue, and it is entirely foreseeable that the Supreme Court (to say nothing of the lower federal courts teeming with Obama appointees) would construe the term jurisdiction differently from what it meant when the 14th Amendment was ratified.
For today, the more narrow question is: Assuming arguendo that the 14th Amendment does not require birthright citizenship, is our practice of conferring it merely an executive policy that the president has the power to change by executive order?
I don’t think so.
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— Jonah Goldberg (@JonahNRO) October 30, 2018
The Birthright EO will be a fascinating test for Trump boosters who insisted that Obama's unconstitutional EO on DACA was outrageous.
— Jonah Goldberg (@JonahNRO) October 30, 2018
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