Unlike the recent suggestions of President Donald Trump, you cannot end birthright citizenship with an executive order. Or even a bill in Congress. So says the Constitution. But don’t trust this president or the next Congress to necessarily agree with the plain meaning of these words. Or future federal officials. Or even the federal courts. Because unbeknownst to most Americans, for more than a century all three branches of government have perpetuated an unconstitutional denial of birthright citizenship. On Wednesday, the Trump administration will appear in federal court to defend the ability of the political branches to unilaterally restrict the Constitution’s guarantee of birthright citizenship. No, it will not be to defend an executive order or congressional statute denying citizenship to U.S.-born children of unauthorized immigrants. Rather, in Fitisemanu v. United States, the administration is defending the unconstitutional denial of birthright citizenship in U.S. territories before the U.S. District Court for the District of Utah. Many assume that the overwhelming bipartisan consensus condemning the constitutionality of Trump’s plan to restrict birthright citizenship by executive order or congressional statute makes such plans dead on arrival. Simply put, the original understanding of the Citizenship Clause requires recognizing all born on U.S. soil as citizens (the only narrow exceptions are for the children of foreign diplomats, enemy soldiers, or certain Indian tribes). An unbroken line of Supreme Court precedent agrees.
But America’s unsavory history of denying birthright citizenship in overseas U.S. territories offers a cautionary tale.
Today, the federal government labels people born in American Samoa as “non-citizens,” even though it has been a U.S. territory since 1900. Moreover, it holds that the citizenship of millions of Americans born in Puerto Rico and other territories is based on statute, not constitutional right, and could be rolled back by Congress.
Legal scholars across the ideological spectrum reject this view as a racist, anachronistic, and “unconstitutional exception … invented by administrators and legislators.”
Yet, here we are.