By Howard Hills
It is within the authority and responsibility of Congress to preserve and in a constitutionally permissible way regulate as necessary acquisition of birthright citizenship under Section 1 of the Fourteenth Amendment. Unfortunately, in some important respects Congress has not exercised its authority to prescribe principles for preservation of birthright citizenship with the same degree of vigilance as it regulates and ensures viability of the rights enjoyed by Americans under the Bill of Rights.
Freedom of speech, press, religion, due process and equal protection have been regulated by Congress consistent with interpretations of those rights by the federal courts. In contrast, Congress simply enacted as statutory law the verbatim text of the birthright citizenship provision in Section 1 of the Fourteenth Amendment. (See, Section 301 of the Immigration and Nationality Act; codified at 8 U.S. Code 1401).
As a result, federal law recognizes the distinction between freedom of speech and shouting “Fire!” in a crowded theatre, or between religious freedom and giving LSD to children so they can see God. Those actions are treated as crimes punishable under law. Yet, federal law fails to make any competent distinction between children born in the U.S. to parents in the U.S. unlawfully and those who have a legal status.
Neither Congress nor the courts have given immigration officials at the Department of Justice imitation and border control agencies or even the State Department passport office any guidance or regulatory responsibility for preserving and regulating birthright citizenship under the Fourteenth Amendment. Thus, Congress has not enabled much less required federal authorities to make a constitutionally permissible differentiation between birthright citizenship for children of Americans born in our nation and subject to its jurisdiction, on one hand, and the status of children born to non-citizens present in the U.S. unlawfully, who arguably are not “subject to its jurisdiction” for purposes of acquiring a right to citizenship under the Fourteenth Amendment.
Of course, independent of the birthright citizenship clause in the Fourteenth Amendment, Congress also retains the authority and responsibility it possessed before the Fourteenth Amendment to provide by federal statutory law for conferral of citizenship at birth on persons it deems eligible. As noted, that power exists under the Uniform Naturalization Clause in Article I, Section 8 of the U.S. Constitution, and is the only source of constitutional power to confer citizenship on persons ineligible for birthright citizenship acquired under the Fourteenth Amendment based on birth in a state.
Federal Jurisprudence and Administrative Law under U.S. Dept. of State “Foreign Affairs Manual” (FAM)
The exercise of federal jurisdiction to regulate conferral of birthright citizenship under the Fourteenth Amendment, as well as conferral of statutory citizenship at birth, are grounded in the Uniform Naturalization Clause in Article I, Section 8 of the Constitution. In both cases the exercise of Congressional power is subject to judicial review by the federal courts, including as a last resort the U.S. Supreme Court. The lead ruling of the U.S. Supreme Court on birthright citizenship for children of non-citizens born in the U.S. is Wong Kim Ark, 169 U.S. 649 (1898).
Other than the Wong Kim Ark ruling and repetition of the operative language of Section I of the Fourteenth Amendment in Section 301 of the Immigration and Nationality Act, the exercise of federal jurisdiction governing U.S. State Department policies and practices for issuance of passports to children of non-citizens present in the U.S. is the FAM. Since issuance of a passport to children of border violators under the FAM constitutes a determination that birthright citizenship was conferred on that child under the Fourteenth Amendment, the critical question to be addressed and answered below is whether or not the FAM provisions under which passports are issued to such persons are consistent with the Fourteenth Amendment as interpreted by the Supreme Court in the Wong Kim Ark case.
The legal criteria for determination of eligibility for a passport necessarily must be precisely the same as the legal criteria applied with respect to determination of eligibility for conferral of U.S. citizenship by statute under Section 1 of the 14th Amendment, as well as Section 310 of the United State Immigration and Nationality Act, and any applicable rulings of the U.S. Supreme Court. The following analysis demonstrates that the FAM rules on birthright citizenship are exogenous to the supreme laws of the United States, including the ruling of the U.S. Supreme Court in the Wong Kim Ark case.
Deconstructing the FAM
Volume 7, Section 1111(d)(2) of the Department of State Foreign Affairs Manual (hereinafter referred to as the “FAM”) establishes a legal presumption of birthright citizenship, except and unless otherwise determined based on exceptions recognized by the Department of State. Thus, it is presumed all children born within the physical boundaries of the United States have an absolute and automatic right to conferral of United States citizenship, by virtually universal operation of Section 1 of the Fourteenth Amendment to the United States Constitution and Section 301 of the Immigration and Nationality Act (8 U.S.C. 1401).
The policy and practices adopted by the Department of State under 7 FAM 1111(d)(2) are carried out under the color of federal law through the administrative, regulatory and ministerial acts of the State Department confirming birthright citizenship in tens of thousands of individual cases annually. The U.S. Department of State has issued millions of passports based on birth certificates issued to children born within U.S. borders to non-citizen parents who were foreign nationals with no allegiance to the United States. These passports rewarding alien border violators are given full force and effect of federal law under the authority of the Office of the Secretary of State, including with respect to the issuance of United States passports under 22 U.S.C. 212.
In furtherance of the administratively determined inclusionary policy for conferral of birthright citizenship under 7 FAM 1111(d)(2), it is provided at 7 FAM 1111(d)(2)(a) that, “Acquisition of U.S. citizenship generally is not affected by the fact that the parents may be in the United States temporarily or illegally.” 7 FAM 1111(d)(2)(b) provides that birthright citizenship also is automatic in the case of U.S. born children of illegal aliens in the custody of federal immigration authorities “…even if the child’s parents have not been legally admitted to the United States and, for immigration purposes, may be viewed as not being in the United States.”
Under the U.S. Immigration and Nationality Act, “not being in the United States” refers to persons not recognized as having acquired a status vesting legal rights because entry to U.S. was unlawful. This legal principle is based on the rule that persons who are present in the U.S. but do not have permission of the sovereign nation to be present in our country can be treated as outside the U.S. while awaiting deportation.
What this means is that border violators in that suspended state “present but not recognized as being in the United States” are subject to federal jurisdiction for purposes of being held for removal back to their nation of origin, but are not subject to U.S. jurisdiction for purposes of acquiring a legal entry status under applicable law. Thus, 7 FAM 1111(d)(2)(b) requires the Department of State to issue passports to persons not “subject to the jurisdiction of the United States” for any purpose other than removal from the U.S. by federal immigration officials.
This arguably is contrary to the 14th Amendment requirement that birthright citizenship be based not only on physical birth within U.S border, but subject to U.S jurisdiction over entry and legal status in the U.S. for purposes of birthright citizenship. 7 FAM 1111(d)(2)(b) also is at odds with the passport issuance authorization in 22 U.S Code 212, which requires allegiance presumed based on birth under U.S. sovereign rule or for adult passport applicants a declaration of allegiance. How can U.S. jurisdiction much less allegiance be established for a child born to parents who legally and for purposes of federal law and authority are “not in the United States” at the tome of birth or afterwards?
FAM’s legal presumptions defy logic
Notwithstanding the automatic birthright citizenship policy set forth in 7 FAM 1111(d)(2), the provisions of 7 FAM 1111(d)(3) and 7 FAM 1112-1119 paradoxically recognize broad administrative discretion retained by the Secretary of State and other federal authorities for disposition of the status of parents and children who are not lawfully present in the United States. Federal immigration officials have broad powers to administratively determine that certain classifications of children born in the United States will be deemed ineligible for birthright citizenship and denied naturalization.
Despite the presumption of birthright citizenship under FAM 1111(d)(2), federal authors can deny citizenship based on a legal finding that the alien parents and children are not “subject to the jurisdiction” of the United States for purposes of birthright citizenship conferred under Section 1 of the Fourteenth Amendment.
The explicit assumption underlying 7 FAM 1111(d) is that absolute and automatic birthright citizenship for children born in the U.S. is not subject to regulation by Congress under federal law in a manner inconsistent with the exceptions recognized by the Department of State in 7 FAM 1111-1119. The tandem assumption is that determination of whether a child born to non-citizen parents in the U.S. is “subject to the jurisdiction” of the United States for purposes of exceptions to birthright citizenship for alien children should be made by the Department of State under 7 FAM 1111(d)(3).
Determination of the status of children born to non-citizens unlawfully present in the U.S. and whether such children are “subject to the jurisdiction” of the United States for purposes of naturalization under Section 1 of the Fourteenth Amendment and Section 301 of the Immigration and Nationality Act is vested in Congress under the Uniform Naturalization Clause in Article I, Section 8 of the United States Constitution.
Notwithstanding the plenary power of Congress under Article I, Section 8 of the U.S. Constitution to determine the scope and purposes of federal jurisdiction exercised over children born in the U.S. during a period of unlawful presence by alien parents, the provisions of 7 FAM 1111(d) purport to limit exceptions to absolute and automatic birthright citizenship to those defined in 7 FAM 1111-1119, based on historical norms of international relations law involving children of diplomatic representatives, and children born in the U.S. but under circumstances implicating the sovereign jurisdiction of foreign governments.
Concomitantly, the provisions of 7 FAM 1111-1119 purport to establish that birth within the physical borders of the U.S. subjects all children not excluded under those FAM exceptions to federal jurisdiction for purposes of determining the nationality of the child, thereby triggering the general policy of absolute and automatic birthright citizenship for children of illegal aliens, and placing the legal status of such children beyond the reach of Congress in the exercise of its power over naturalization under Article I, Section 8.
To provide a juridical context for rationalization of its internal assumptions, 7 FAM 1111(d)(1) states that the policies and practices of the Department of State set forth in the FAM with respect to recognition of the conferral of birthright citizenship are predicated legally on the ruling of the United States Supreme Court in the case of U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), and that FAM provisions on birthright citizenship for children of illegal aliens were promulgated in reliance upon the interpretation of Section 1 of the Fourteenth Amendment in the Wong Kim Ark ruling.
Department of State reliance upon the Wong Kim Ark ruling to sustain the legal authority of the FAM provisions on birthright citizenship is misplaced, because the actual ruling of the United States Supreme Court in that case explicitly limited conferral of birthright citizenship to children of alien parents who “have permanent domicil and residence in the United States,” and who thus have a status that makes the parents “subject to the jurisdiction of the United States” by operation of federal law governing their presence in the United States, enacted by Congress under Article I, Section 8 of the U.S. Constitution.
Congressional Research Service Report Reveals FAM’s fatal flaw
The anomalous and irreconcilable legal policies embodied in FAM 1111(d) are not resolved by the provisions of 7 FAM 1111(d)(1) invoking the Wong Kim Ark ruling, as demonstrated by the Congressional Research Service report entitled “Birthright Citizenship Under the Fourteenth Amendment of Persons Born in the United States to Alien Parents,” (RL33079 – August 12, 2010). In that report the nonpartisan CRS states: “Wong Kim Ark made no distinction between lawfully and unlawfully present alien parents…because Wong’s parents were legal resident aliens,” (p. 15). The same Congressional Research Service report states that, “The courts apparently have never ruled on the specific issues of whether the native-born child of unauthorized aliens as opposed to the child of lawfully present aliens may be a U.S. citizen,” (p. 16).
Even more pointedly, the CRS report confirms as well that, “…since Congress has broad power to pass necessary and proper legislation to regulate immigration and naturalization under the Constitution, Art. I, Sec. 8…arguably Congress has the power to define ‘subject to the jurisdiction thereof’ for the purpose of regulating immigration.” (p. 15).
In addition to the FAM provisions creating an inclusionary policy extending birthright citizenship to the children of illegal aliens without express authorization of Congress pursuant to Article I, Section 8, Clause 4 of the Constitution, Volume 7 of the FAM also purports to rely upon the Wong Kim Ark case to limit exclusionary exceptions to absolute, universal and automatic birthright citizenship, and thereby expand the inclusionary practices that confer passports on children of unlawful migrants. This policy under FAM purports to invoke the Wong Kim Ark case as its source of legal authority to define and regulate application of historic diplomatic protocols and foreign relations powers of the President and Secretary of State, in order to limit narrowly the exclusionary enforcement under Wong Kim Ark in cases where birthright citizenship is denied for the U.S. born children of foreign diplomats.
By carefully limiting enforcement of exclusionary rules the FAM operates to exempt the children of illegal migrants from exclusion, thereby giving effect to a presumptive inclusionary policy for children of unlawfully present non-citizens, even though the Wong Kim Ark case did not address the citizenship status of children born to illegal aliens. Nor did the Wong Kim Ark case address certain other possible exclusionary exceptions to birthright citizenship which the FAM purports to promulgate. Thus, in addition to limited exclusionary exceptions allowed under the Wong Kim Ark case and FAM 1111-1119, the FAM prescribes sui generis exclusionary exceptions which, while part of the narrowly drawn FAM menu of grounds for denial of birthright citizenship, appear to have no source of legal authority under Wong Kim Ark or any federal statute enacted by Congress pursuant to the Uniform Naturalization Clause in Article I, Section 8 of the United States Constitution.
Again, neither the uniform naturalization law clause of Article I, Section 8, the provisions of Section 1 of the Fourteenth Amendment nor Section 301 of the Immigration and Nationality Act authorize the Department of State to determine administratively the law of the United States with respect to discretionary exclusionary and inclusionary policy to be applied in the case of persons born in the U.S. who may or may not be subject to the jurisdiction of the United States for purposes of conferral of birthright citizenship
The cases in which federal courts as well as federal immigration authorities lack a sufficient statutory and regulatory framework for coherent determination of birthright citizenship issues include those in which children born within the physical boundaries of the United States to parents present but not lawfully admitted are granted birthright citizenship under the general inclusionary principle of the Fourteenth Amendment and Section 301(a) of the Immigration and Nationality Act, but the non-citizen parents subsequently are determined by adjudication under the Immigration and Nationality Act to be deportable as illegal or undesirable aliens, thereby giving rise to legal and social anomalies that include misinformed and often insufficiently discerning administrative and judicial disposition of the status of alien parents and children due to family separation issues;
In light of the foregoing, it is clear that Congress has the plenary authority and responsibility to promulgate governing statutory law prescribing legal provisions under which the Secretary of the Department of State, and where applicable the Attorney General and the Secretary of the Department of Homeland Security, shall administer lawful procedures related to the determination and disposition of any claim or application for acquisition of U.S. citizenship. Retention or enjoyment of the rights of United States nationality and citizenship, by persons who upon birth in the United States may or may not have been subject to the jurisdiction thereof, implicates matters determined by Congress to be material to conferral of United States nationality and citizenship under the Constitution and laws of the United States.
All these matters should be addressed only as prescribed by Congress in a statute defining the jurisdiction of the U.S. and terms for determining how and when it attaches to non-citizens who give birth to children while in the U.S. in violation of its laws. If the U.S. is to give universal, automatic birthright citizenship to children of unlawfully present parents, that should be mandated by Congress in an amendment to 22 U.S. Code 212. It should not be given the force and effect of law by State Department lawyers writing regulations based on Supreme Court rulings that do not apply to border violators and their children born within the borders of the U.S., but arguably not within U.S. jurisdiction of the U.S for purposes of citizenship.
Howard Hills is former legal counsel on territory law in the U.S. Department of State, National Security Council and Executive Office of the President. He is author of the book Citizens Without A State.