President Donald Trump’s executive order 14160, aimed at redefining birthright citizenship, is at odds with the text, history, and structure of a pivotal 1952 statute. This statute, the Immigration and Nationality Act, specifically 8 U.S.C. § 1401(a), mirrors the citizenship clause of the 14th Amendment, stating, “The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof” (8 U.S.C. § 1401(a)).
The solicitor general, D. John Sauer, argues that the 14th Amendment does not inherently grant birthright citizenship to American-born children of individuals such as illegal aliens or temporary visitors, suggesting a dependence on the status of the parents. This interpretation overlooks historical precedent, including the Supreme Court’s ruling in the 1898 case of United States v. Wong Kim Ark, which emphasized citizenship by birth within the U.S. as a fundamental principle reaffirmed by the 14th Amendment.
The FDR administration’s 1938 report to Congress asserted that it is the act of birth within the territory that determines nationality, rather than the domicile or status of the parents, a notion reflected in the 1940 Act and its 1952 successor. Moreover, the legislative history from the 1930s to 1950s consistently upheld the understanding that U.S. birthright citizenship applies to children born on American soil, regardless of parental citizenship or visa status (Justia).
The legislative process of the time, alongside executive practices post-1940, continually recognized individuals born within the U.S. as citizens, contrasting starkly with the assumptions made in Trump’s executive order. The 1952 Act, through repeated affirmations in legislative discourse, contradicts the executive redefinition proposed by Sauer and the Trump administration (Barbara amicus brief).
Critics argue that Sauer’s interpretation misrepresents the original intentions of the 1952 Act, failing to align with both historical application and textual analysis. Consequently, the statutory framework established by Congress in 1952 stands in opposition to the executive order, maintaining its validity under the reigning legislative and constitutional frameworks (Professor Scott Titshaw’s forthcoming essay).