By Howard Hills

What will Trump’s proposed executive order on birthright citizenship mean to territories?

President Trump has not proposed an end to birthright U.S. citizenship by general application of the 14th Amendment to the U.S. Constitution in the states of the union.  At least not with respect to children born to parents who are lawfully present in one of the states.
The executive order Mr. Trump apparently plans to issue widely is expected to require the U.S. Supreme Court to decide with greater precision the legal meaning of the national and state citizenship clause of the 14th Amendment, which reads:
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.
In his remarks during a media interview, the President opposed birthright citizenship for children of foreign citizens unlawfully present in the United States.  However, that is not inconsistent with conferral of birthright citizenship for children born in a state to foreign nation citizens admitted under federal laws exercising federal jurisdiction over entry to the United States.  
Birthright citizenship for children of non-citizens born in a state of the union is “decided law” under the U.S. Supreme Court’s ruling in the 1898 case of Wong Kim Ark.  However, the Wong Kim Ark ruling applied to the son of Chinese citizens lawfully admitted to the United States and born in a state of the union, not to a child born in the U.S. to parents not lawfully admitted to the U.S. by the exercise of its sovereignty and jurisdiction over entry across our national borders.     
That is the conclusion of the Congressional Research Service in its 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 by the respected non-partisan legal research arm of Congress, the CRS concluded:
“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.

There is no indication President Trump seeks to deny birthright citizenship except to children of parents who violated U.S. borders in defiance rather than “subject to” the “jurisdiction of 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



2 Responses

  1. Hills does not mention that if you reside in a non-incorporated US Territory (like Puerto Rico), and then move to a State, you still have a non-permanent statutory US Citizenship (Due Process doesn’t cover suffrage)… Some sources: • US President Task Force on PR Status (2004 & 2006) “If P.R. were to become independent “… those…who had U.S. Citizenship only by statute would cease to be citizens of the United States, unless a different rule were prescribed by legislation or treaty…” (Page 9)
    • The 1997 Congressional GAO Report-U.S. INSULAR AREAS Application of the U.S. Constitution, states: “Citizenship is derived either from the Fourteenth Amendment to the Constitution or from a specific statute that confers citizenship on the inhabitants of an area that, although not a state, is under the sovereignty of the United States. Such legislation has been enacted for Puerto Rico (8 U.S.C. § 1402)…”
    • CONGRESSIONAL RESEARCH SERVICE (1989)- confirmed that Puerto Rico belongs to the United States but is not in the United States. “Whatever its exact status and relationship to the United States,” CRS cautioned, “Puerto Rico is not itself in the United States.” The 14th amendment, according to CRS, therefore doesn’t apply to people born in Puerto Rico.
    o In 2016, the Federal Court WDC confirmed in Tuaua v. U.S. that the Constitution’s 14th amendment does not apply to people born in a U.S. Territory, per, Territorial Clause and Insular Cases-which decided that the U.S. Constitution doesn’t apply entirely to unincorporated territories like Puerto Rico… This is standing law…
    • Tuaua v. United States (2016)- The legal nature of U.S. nationality and citizenship law in “unincorporated” territories was confirmed by the Court of Appeals for the D.C. Circuit; the U.S. Supreme Court rejected a petition to review the Tuaua ruling in 2017.
    o In reality, even people born in Puerto Rico at this time as an “unincorporated” U.S. territory do not have any right to U.S. citizenship under the U.S. Constitution as it applies in a State of the Union. Rather, persons who are not born in a State of the Union do not acquire citizenship unless Congress exercises its discretionary power to grant citizenship by statute (can be revoked).

    • These legal conclusions generally are correct and have been discussed elsewhere at PR51ST. Thus, it is correct that the national and state citizenship clause in Section 1 of the 14th Amendment is not the source of U.S. nationality and citizenship in Puerto Rico or the other unincorporated territories. If the 14th Amendment citizenship clause applied to Puerto Rico there would be no need for 8 U.S.C. 1402 conferring statutory citizenship at birth in the territory. The power of Congress to grant citizenship to persons who do not acquire it by birth in a state under the 14th Amendment exists under Article I, Section 8, Clause 4 (uniform naturalization clause). Inapplicability of the 14th Amendment citizenship clause in the territories was confirmed in the Tuaua ruling, as noted. However, application of the 14th Amendment to the territories is being asserted again in a federal court lawsuit in Utah (Fitisemanu v. U.S.) by the same lobbyist/fundraiser who brought the Tuaua case. If the second attempt being made to get a federal judge to order application of the 14th Amendment to territories is successful the issue will be appealed again. PR51ST has published several posts on this litigation strategy to impose by judicial fiat what only Congress can do, which is to incorporate the unincorporated territories. The problem with that scenario is that it would make constitutional citizenship permanent, but it would not make any commitment to statehood, which a court cannot order. That would mean less than equal citizenship under the 14th Amendment instead of under federal territorial law, because federal voting rights exist only in states. Creating federal voting rights in territories would give non-states the same rights as states, dilute voting rights of citizens in the states, and could be done only by constitutional amendment. Thus, a ruling like that being sought in Fitisemanu would constitute a repeat rather than a correction of the undue judicial intervention on territorial law by the Supreme Court in the Insular Cases. All that said, with respect to the comment posted above, it should be noted that the case of Afroyim v. Rusk protects both constitutionally and statutorily conferred citizenship from arbitrary or discriminatory rescission or extinguishment. However, the case of Roger v. Bellei confirms Congress can and does attach conditions precedent and conditions subsequent to citizenship conferred by statute. In a scenario leading to separate national sovereignty for Puerto Rico with its own national citizenship and constitution, even the CRS and ACLU have recognized that Congress could require U.S. citizens who acquired that status based on birth in the territory to elect one nationality or the other. In addition, in ending conferral of citizenship under statute Congress could provide that citizenship acquired under federal statute during the territorial period does not provide the legal basis for passing citizenship on to children born in Puerto Rico in the post-territorial period. In other words, the mass “dual citizenship” scenario envisioned by some Puerto Rico anti-statehood national sovereignty advocates should not be expected and would not be allowed by operation of federal law.

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