Revisiting the Scope of Constitutional Birthright Citizenship

Abstract

On the day he took office for his second term, President Trump signed an executive order purporting to end citizenship by birth for the children of illegal aliens and temporary visitors. Since then, several federal judges have entered preliminary injunctions or temporary restraining orders enjoining the executive order's enforcement indefinitely. A torrent of criticism has come from law school professors, with several competing to condemn the order in the harshest terms. These criticisms reinforce the conventional academic view that the Citizenship Clause of the 14th Amendment provides citizenship by birth to the children of parents who have entered this country unlawfully or as temporary visitors (what we call the "expansive view"). As we see it, the case for the expansive view, at least with regard to the issue of parents not lawfully in this country, has not been made out.

Keywords: bithright citizenship, nationality, constitutional law, immigration law