By Howard Hills
What will Trump’s proposed executive order on birthright citizenship mean to territories?
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.This amendment places denial of the acquisition of equal national and state citizenship rights beyond the reach of the federal and state governments, except as determined permissible by the U.S. Supreme Court. Like all the individual freedoms enshrined in the first ten amendments we know as the Bill of Rights, the acquisition of national and state citizenship under the 14th Amendment can be regulated by government measures if found by the high court to be consistent with rather than an infringement of our constitutional rights.
“Wong Kim Ark made no distinction between lawfully and unlawfully present alien parents…because Wong’s parents were legal resident aliens,” (p. 15). “The courts apparently have never ruled on the specific issue 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). “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).
Arguably, it would not be inconsistent with either the Wong Kim Ark case or the CRS findings for President Trump to issue an order that children born in a state to non-citizen foreign nationals without being lawfully admitted to the U.S. are not “subject to” federal laws exercising “the jurisdiction of the United States” for purposes of entry and acquisition of a legal status or vested rights in the United States.
14th Amendment not applicable to “unincorporated” territories
It is not expected that President Trump or even his legal team would know the U.S. Supreme Court has ruled the U.S. Constitution applies directly and of its own force in U.S. territories where Congress has exercised federal jurisdiction and its power to “incorporate” a territory into the union as a step toward statehood. That means U.S. citizens in “incorporated” territories have rights and duties equal to all other citizens, except for those rights allocated to and exercised exclusively by citizens in a state, including federal voting rights for representation in Congress and the Electoral College.
Thus, historically children born in incorporated territories were recognized as having birthright citizenship right under Section 1 of the 14th Amendment, and upon admission to statehood that status was perfected forevermore. See, Hawaii v Mankichi(1903) and Rassmussen v. U.S. (1905).
However, the birthright citizenship clause in the 14th Amendment does not apply in “unincorporated” territories. Rather, the U.S. Supreme Court decided in 1901 that the U.S. Constitution does not apply directly of its own force except as determined on an ad hoc basis by Congress and the federal courts. Instead, the only source of U.S. nationality and citizenship for persons born in non-incorporated territories is the “uniform naturalization clause” in Article I, Section 8, Clause 4 of the U.S. Constitution.
Before the 14th Amendment was adopted, federal statutes adopted under the uniform naturalization clause in Article I were the only source of nationality and citizenship. Since the 14th Amendment that power is exercised by Congress to grant national citizenship at its discretion to persons who do not acquire it by operation of the 14th Amendment in the states and incorporated territories. That historically and currently includes children of U.S. citizens born in foreign nations, and persons born in U.S. territories under U.S. sovereignty and federal jurisdiction (currently American Samoa, Guam, Northern Marianas, Puerto Rico and U.S. Virgin Islands).
Birthright citizenship in states not same as “at birth” citizenship in territories
It is important to note that children born in U.S. unincorporated territories do not derive U.S. nationality and citizenship by blood from parents residing in a territory who are U.S. citizens. Rather, like their parents, children born in unincorporated territories are granted U.S. nationality “at birth” by federal territorial statutes.
Congress exercises federal jurisdiction in such non-incoporporated territories under the “territorial clause” in Article IV, Section 3, Clause 2, not under the 14th Amendment. So the entire discussion of what “subject to the jurisdiction of the United States” means under the 14th Amendment so far has never been relevant to the legal and political status of the unincorporated territories.
Congress has exercised federal jurisdiction in the unincorporated territories by ratifying in federal territorial law the doctrine of the 1904 case of Gonzales v. Williams. In that ruling the U.S. Supreme Court held that unless Congress otherwise provides, U.S. sovereignty over non-incorporated territories gives the residents therein the status of “nationals” but not citizens.
Under federal laws organizing local governments, Congress has classified the nationals of Guam, Northern Marianas, Puerto Rico and USVI as “U.S. citizens,” but as citizens without a state or even incorporation of the territory as a step toward statehood, this provisional territorial form of “citizenship” in the territory is a less than equal status compared to citizenship in a state.
American Samoan exception proves the rule
The same analysis applies to U.S. national status in American Samoa, the only current territory where the majority of residents and local territorial government have not petitioned for classification of “U.S. citizenship” under federal territorial law. Thus, it is important to note that “national” and “citizen” mean the same thing and define a fully equal status for persons born and residing in a state under the U.S. Constitution. But in an unincorporated territory “nationals” and “citizens” have the same status and are denied equal rights of U.S. citizenship that come only with statehood, including federal voting rights and representation allocate by the U.S. Constitution only to citizens of states.
It is only upon leaving a territory and moving to a state that “national” and “citizen” has a different meaning for persons born in an unincorporated territory. It is really a distinction that ultimately is without any material difference. Specifically, “nationals” in a territory classified under federal territorial law as “citizens” upon being born in a territory are full citizens with equal rights upon meeting residency requirements and registering to vote in any state. But nationals from American Samoa who move to a state must apply for reclassification as “citizens” in order to register to vote in federal elections.
What it all really means for territories
What the preceding analysis means is that citizenship “at birth” in a territory is not “birthright citizenship” under the 14th Amendment. Rather, it is a statutory grant of U.S. nationality that can be classified as “citizenship,” and this status exists under federal territorial laws enacted under the uniform naturalization clause in Article I and the territorial clause in Article IV, as applicable only in unincorporated territories.
Since the 14th Amendment is not the source of U.S. nationality and citizenship in non-incprorporated territories, under current “decided law” a presidential executive order, act of Congress or U.S. Supreme Court ruling on birthright citizenship under the 14th Amendment is irrelevant to the status of citizens in the territories.
In other words, the battle over birthright citizenship in the states is a constitutional issue, and the continuation or termination of citizenship at birth in a territory is a matter of statutory federal territorial law and policy. Accordingly, to limit nationality and citizenship in current territories to children of persons present therein legally, Congress would have to amend the federal territorial statutes conferring citizenship “at birth” in the unincorporated territories.
Of course, a presidential executive order limiting federal recognition or enforcement of 14th Amendment constitutional birthright citizenship in states to lawfully present foreign citizen parents could also be extended to statutory nationality and citizenship at birth in territories. But the “subject to the jurisdiction of the United States” phrase in Section 1 of the amendment that Trump appears to rely on in the proposed executive order does not operate in the territories. Any change to current status of persons born in the territories first and foremost a statutory matter within the powers of Congress over territories.
Howard Hills is a former legal counsel on territorial affairs in the Executive Office of the President, State Department and National Security Council