Ron DeSantis Is Dead Wrong About the Children of Undocumented Immigrants And the 14th Amendment
A fringe and dangerous legal theory endorsed by a mainstream candidate
The first time I ever wrote a piece published in a mainstream publication occurred in 2003, when a case named Hamdi v. Rumsfeld was being briefed before the United States Supreme Court. Hamdi was the first major “war on terror” case, in which the Bush Administration argued it had absolute power to declare anyone an “enemy combatant” and to imprison them indefinitely. Lurking behind Hamdi was the fact that Bush not only wanted to detain these prisoners, but denied they were entitled to the protections of international law; he wanted to be able to torture them as well.
There was another fact about Hamdi that made the case even more notable- Hamdi was a citizen. He was born in Louisiana to Saudi immigrant parents. Under the 14th Amendment to the Constitution, “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”. There had been older cases like Johnson v. Eisentrager, from the 1950’s, that had discussed the treatment of what the Supreme Court called “enemy aliens”, but Johnson didn’t apply to US citizens. Did a US citizen have the right to challenge his designation by the President as an “enemy combatant” and his indefinite imprisonment? It was a very important question.
But a local law professor, John Eastman of Chapman University, a man who would later achieve infamy as the hackish lawyer who falsely advised Donald Trump that the law permitted him and Mike Pence to steal the 2020 election, was commissioned to write a piece in the Los Angeles Daily Journal, which at the time was delivered to almost every law office in Greater Los Angeles. Prof. Eastman didn’t use that space to write about the issue before the Supreme Court in Hamdi; instead, he urged the Court to decide a different issue. He wanted the Court to declare that Hamdi wasn’t a citizen even though he was born in the United States, because that would then allow the courts and/or Congress to deny citizenship to all children of immigrants (and especially undocumented immigrants). I was asked to write the response.
I will spare all the details of what I wrote about Prof. Eastman, because a lot of it is not germane to what I am going to discuss here. But suffice to say, part of my outrage was directed at the idea that someone would want to hijack this extremely important Supreme Court case that was going to affect everyone’s civil liberties and the future direction of the war on terrorism, to instead decide a pet issue he clearly had with respect to an unrelated issue, immigration, and to make a hugely consequential policy change in that area when that issue was not squarely presented by the case.
But the main part of my outrage was over Prof. Eastman’s 14th Amendment argument itself. It was, and remains, bats. Bats both as a matter of law, and also as a matter of immigration policy. And unfortunately, rather than being consigned to the dustbin of bad arguments (as Prof. Eastman’s claim that Vice Presidents can use their power to count the electoral votes to reverse a presidential election will be), as the Republican Party has become more and more anti-immigrant, Prof. Eastman’s argument has obtained a whole bunch of new conservative fans, including Gov. Ron DeSantis of Florida. So it needs to be refuted.
So let’s start with some history. There are two basic theories of how someone becomes a citizen of a country- jus soli and jus sanguinis. Under jus soli (“right of the soil”), you can become a citizen because of where you are born. If you are born in Country X, you become a citizen of Country X; if you are born in Country Y, you become a citizen of Country Y. Jus soli doesn’t exclude other means of citizenship- a person born in X to parents from Y could be born or become a dual citzens of country. But the basic principle of citizenship is tied to land.
Under jus sanguinis (“right of the blood”), you can become a citizen because of who you are born to. If you are born to citizens of Country X, you become a citizen of Country X, even if you are physically born in Country Y. Again, this doesn’t necessarily exclude other means of citizenship- many countries that use a jus sanguinis regime also allow many immigrants and their children to naturalize and become citizens. But the basic principle of citizenship is tied to ancestry.
The United States, from its inception, was a jus soli country. At the time of the founding of the country, the residents of the states were made citizens of the states and (to the extent the concept existed) citizens of the United States. If you were born here, you were a citizen. However, there were two major exceptions as well as a few minor ones. The major exceptions were slaves and members of Indian tribes. Slave states did not grant citizenship status to slaves born in their territories. And Indian tribes were considered separate nations within United States territory; an Indian child would be a citizen of the tribe rather than a citizen of the United States or the state she was born in.
One of the seminal events in the run up to the Civil War was the Supreme Court’s decision in Dred Scott v. Sandford, which involved a slave who traveled into a free state and who argued for his freedom. In ruling against the slave’s claim for freedom, the Court held that not only were slaves excluded from citizenship, but that the Constitution did not grant citizenship rights to Black people at all, even free Blacks. This was, of course, highly controversial, and enraged a lot of people in the North. So when the Civil War was won by the Union, the 14th Amendment was enacted. Among other things, it contained what is called the Citizenship Clause:
“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.”
The Citizenship Clause was specifically intended to overturn Dred Scott and to codify the United States’ tradition of jus soli citizenship. If you are born here, you are a citizen. And contra-Dred Scott, it don’t matter if you’re Black or white. There will no longer be a class of Americans, born in America, who lack the rights of citizenship. (The next clause says that no such citizens may be denied the privileges or immunities of their citizenship.)
You will note the phrase “subject to the jurisdiction thereof”. What does that mean? Well, first of all, there was still the matter of Indians. As of 1868, they were not automatically made citizens and Congress dealt with the Indians through its treaty power, by making treaties with Indian tribes and treating them as separate nations. So if you were an Indian child, you were not subject to the jurisdiction of the United States, only to your tribe, so you were not made automatically a citizen. (This was later changed by Congress, which passed legislation making all Indian children citizens.)
And second, there was a narrow class of children of diplomats who may have been within the United States but were not subject to our laws in the same way that other children were. So they were “not subject to the jurisdiction thereof” in 1868 and, as far as I can tell, still are not now.
So that’s what “subject to the jurisdiction thereof” means- there were some people born here whom the United States had no power over, because they were born within the jurisdiction of another Nation (an Indian tribe, or a foreign sovereign’s diplomatic mission).
So that’s the background, and now let’s get to DeSantis’ and Eastman’s argument. They want “subject to the jurisdiction thereof” to mean that somehow the children of foreigners (or maybe only the children of undocumented foreigners) are subject to foreign jurisdiction, and therefore not within the Citizenship Clause. But that’s absolutely crazy. A child of foreigners, born here, is clearly subject to United States jurisdiction. He doesn’t have diplomatic immunity. There isn’t a tribal law that determines his rights. He is subject to United States child custody, juvenile delinquency, inheritance, property, contract, tort, and criminal laws. Indeed, it’s crazy to say otherwise. Imagine a variant of Hamdi where the offspring of foreign immigrants commits a terrorist act, and at his trial says “you can’t try me, I am not subject to the jurisdiction of the United States, because my parents were foreigners!”. Somehow I don’t think that defense would succeed.
In contrast, it’s very possible that United States courts wouldn’t apply United States child custody law to a diplomat’s child in the event the parents divorced. Indeed, it’s quite likely they would say they have no jurisdiction to do so. And there’s all sorts of constitutional and statutory limits as to when United States general law applies to Indian tribe members. That’s what it means to not be subject to jurisdiction!
If that isn’t bad enough, the Supreme Court has already ruled on this. In United States v. Wong Kim Ark, back in 1898, the Court held that the Citizenship Clause made a child of Chinese immigrants born in the US a citizen of the United States. At the time Wong Kim Ark was decided, Chinese immigration to the United States had basically been made illegal. Nonetheless, a child born here was a citizen and had all the rights of a citizen.
Eastman and DeSantis have an answer on Wong Kim Ark, but not a very good one. They say that the parents of Wong Kim Ark were not illegal immigrants. But that is, as we lawyers say, a distinction without a difference. Remember, the phrase in the Constitution is “subject to the jurisdiction thereof”. It doesn’t say anything about whether the parents have papers are not. The only issue is, is the child subject to the jurisdiction of the United States? And why would that ever depend on whether the parents have papers? Does anyone seriously believe that, for instance, our courts have no power to make rulings affecting children of undocumented immigrants in the same way they have no power to make rulings affecting diplomats? This is simply not how distinguishing cases work- it’s like arguing that case A is distinguishable because it was decided on a Tuesday and now it’s Friday instead when we are ruling on case B, so we don’t have to follow the rule of case A. The legality of the parents’ immigration status is immaterial to whether the child is subject to jurisdiction.
Eastman and DeSantis make one other move. They spin out hypotheticals as to what might happen if, say, the United States were invaded. Would we be required to grant citizenship to enemy alien children of the invaders born on our soil? Well, perhaps not- but that’s because if part of the United States were conquered, children born there would not be subject to our jurisdiction, because the country would have no power in the conquered lands! Whereas right now, there’s no invasion, no conquest, and babies born here are subject to our jurisdiction.
This would all be completely silly except it is deadly serious. DeSantis’ adoption of this argument shows you that this is becoming a powerful intellectual force in the Republican Party, whereas when Prof. Eastman was saying it he was just a crank. And the reality is, turning this country’s back on jus soli would be a terrible mistake. It would create a permanent underclass of people we lack the capacity to deport (and who over time may not even speak their ancestors’ native languages, as the children learn English) but who lack equal rights. It would tear the country apart.
Now I guess I should mention what is really motivating the people who believe in this- the fear of what is called “birth tourism” or “anchor babies”. Yes, I have to concede, it is possible to game the jus soli system. A pregnant woman can come to the United States to give birth and the child will gain citizenship rights which may later benefit the mother. And yes, this does happen. But how often does it happen? Go watch the footage of migrant flows at the border. How many of those people are pregnant women?
The reality is the physical difficulties of border crossing are all the deterrent against “anchor babies” you ever need. It’s difficult to cross when you are pregnant. Do some couples cross and then conceive children after they get here? Surely. But we have no reason at all to think that means that the reason they are conceiving those children is because they want to create an anchor to the United States, as opposed to them just wanting to have children as many young couples do.
And here’s the point- however large the actual number of “anchor babies”, it’s not that large, and in contrast, what people are proposing is gutting the 14th Amendment which is a lot more important. The 14th Amendment expresses the judgment of the country that Dred Scott was wrong and that we would never again create large number of stateless Americans, born on this soil but with foreign ancestors, who lacked the equal rights of citizenship. Even if you think “anchor babies” are a problem, the solution isn’t to bring back the theory of citizenship favored by the slaveholders who lost the Civil War.