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John C. Eastman, professor of law, Chapman University, wrote this in Newsweek a few days ago:

Indeed, the Supreme Court has never held that anyone born on U.S. soil, no matter the circumstances of the parents, is automatically a U.S. citizen.

Granted, our government's view of the Constitution's citizenship mandate has morphed over the decades to what is now an absolute "birth on the soil no matter the circumstances" view—but that morphing does not appear to have begun until the late 1960s, after Kamala Harris' birth in 1964.

Some other legal scholars previously expressed similar opinions. Matthew Spalding, of Hillsdale College wrote in WSJ:

Even when the justices expanded the constitutional mandate U.S. v. Wong Kim Ark (1898), the decision cited as establishing birthright citizenship, they held only that the children of legal permanent residents were automatically citizens. The high court has never held that the clause confers automatic citizenship on the children of temporary visitors, much less of aliens in the country illegally.

Will Kamala Harris's vice-presidential run force SCOTUS to make a decision about birthright citizenship before the election?

Edit: I'd like to emphasize that this question is not about how the Citizenship Clause should be interpreted (which is discussed in a separate question, as @phoog pointed out, and in Prof. Eastman's article itself), but whether SCOTUS can be expected to opine on it, in light of recent controversies.

MWB
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    This question calls for speculation of future events. You should reword the question to be: "What is the current state of the law." – SurpriseDog Aug 15 '20 at 17:55
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    Certainly the Supreme Court will not be "forced" to make a decision. It is possible that someone will bring a suit in District Court, but there is no guarantee that the case would actually be decided on its merits, nor that any decision would be appealed to the Supreme Court, nor that SCOTUS would agree to hear said appeal, nor that any hypothetical decision of the court would have any general implications for birthright citizenship. – Nate Eldredge Aug 15 '20 at 19:04
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    You may recall that there was a lawsuit over John McCain's "natural born citizenship" in 2008. That case (Robinson v. Bowen) didn't make it to the Supreme Court either; it was dismissed by the District Court, on the grounds that the plaintiff did not have standing and had not shown a likelihood of success on the merits, and moreover that any possible lack of eligibility should be judged by Congress when certifying the electoral votes. See https://cases.justia.com/federal/district-courts/california/candce/3:2008cv03836/206145/39/0.pdf – Nate Eldredge Aug 15 '20 at 19:07
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    Josh Blackman has a WSJ oped arguing the 14th A requires birthright citizenship. He is worth paying attention to because he is a:) a law professor, who teaches and writes on constitutional law; b) not a liberal; c) someone who calls them as he sees them (ie, he says the emoluments clause, properly understood, would not cover Trump). https://www.cato.org/publications/commentary/birthright-citizenship-constitutional-mandate – Just a guy Aug 15 '20 at 19:38
  • @NateEldredge might be better as an answer instead of comment? – MWB Aug 15 '20 at 19:41
  • @SurpriseDog Eastman's article already explains "the current state", no? – MWB Aug 15 '20 at 19:44
  • @MaxB: Well, I wasn't sure if that was really what you wanted to know, or whether you wanted to reframe your question instead. – Nate Eldredge Aug 15 '20 at 20:04
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    MaxB: 'Eastman's article already explains "the current state", no?': No. It explains his opinion about the current state. It's one side of a debate. Newsweek offered the other side of the debate in the form of a companion piece by Eugene Volokh. But Eastman's position is so far outside the mainstream that the executive branch itself has not adopted it since 1898 (as far as I can tell), and has even maintained the contrary position for at least several decades. So who has standing to challenge it? – phoog Aug 15 '20 at 22:50
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    This entire argument seems to hinge on the idea that those on a visa are not in a "permanent residence". Literally no one can say they're going to live in the same place for months, years, etc. into the future. Sudden income/job changes, disasters, deaths, etc. can all change where you live, and most people these days live in rented quarters. Relatively few people, citizens or not, actually "own" their living quarters; and those that do tend to have mortgages. – zibadawa timmy Aug 16 '20 at 11:40
  • @zibadawatimmy visa holders are not permanent residents for "immigration purposes", while at the same time, they often are "for tax purposes". The law is a mess, if you ask me. – MWB Aug 16 '20 at 19:31
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    MaxB there is no such thing as "permanent residence" in US tax law, only residence or nonresidence. The determination is made separately for each tax year. @zibadawatimmy under US immigration law the status of "lawful permanent resident" is mutually exclusive with the various temporary nonimmigrant visa statuses that apply to students, temporary workers, etc. It's worth noting that "lawful permanent residence" didn't exist in 1898, so there is some room for leeway in applying that distinction to modern statuses (if one accepts that Wong is only narrowly applicable, which I don't). – phoog Aug 16 '20 at 20:40
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    @phoog Worth mentioning that Eugene Volokh is not a liberal by any means. He is a conservative leaning libertarian legal academic, more likely to be appointed to a judgeship, if anyone every considered him, by a Republican than a Democrat. – ohwilleke Aug 17 '20 at 23:58
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    There is no controversy. Kamala was born in the US just like Obama was. Any drummed up talk about this is purely racist. The Constitution states "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" (relevant parts emphasized). – TylerH Aug 18 '20 at 13:01
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    Also note that Newsweek isn't really Newsweek anymore (for a few years now). It's all editorialized clickbait/hogwash, not the integral news journal it has a prior reputation of being. – TylerH Aug 18 '20 at 13:22
  • I would note that SCOTUS is not really ever "forced" to rule on virtually anything. They can (at least usually) accept or decline cases at will, depending on whether they think it's worth consideration at that level. – reirab Aug 19 '20 at 16:55

5 Answers5

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Probably not, because there is no legal case or controversy, and the law is clear enough. In US v. Wong Kim Ark, 169 U.S. 649, SCOTUS held that

A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution

The opinion has a long analysis of the "subject to jurisdiction" clause, reasoning that this excludes only children of diplomats, who are not subject to US law. Harris's parents were not immune diplomats so she was never immune to US jurisdiction.

They are never forced to take any case, and are especially not likely to take a case so lacking in legal merits.

user6726
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49

I think it's quite unlikely that this will lead to a Supreme Court decision on the question of birthright citizenship in general.

Consider what would have to happen to get to that point:

  • Someone would have to file a lawsuit in US District Court challenging Harris's eligibility.

  • That plaintiff would have to have standing to sue; otherwise the lawsuit would be dismissed. A random voter would not. A rival candidate probably would; various people in the Trump administration and campaign have said that they do not contest Harris's citizenship, though conceivably a third-party candidate could also have standing.

    For comparison, there were challenges to John McCain's qualification as a "natural-born citizen" when he ran for president in 2008. A lawsuit was brought by the leader of the American Independent Party (not the AIP candidate himself), but was dismissed partly on the grounds that he lacked standing. See Robinson v. Bowen.

  • The decision of the District Court would have to be appealed by the losing side, first to the Circuit Court of Appeals and then to the Supreme Court. I don't know the precise criteria under which the Circuit Court would have to consider the appeal, but the Supreme Court would have discretion whether to hear an appeal (grant certiorari) or not. If it declined then the lower court's decision would stand, and if they feel that the lower court's decision was clearly correct, that's what they would probably do. Most commentators (other than Eastman) seem to think that it is well established in case law that someone in Harris's position is a citizen from birth, and so assuming that lower courts ruled that way, I think it's unlikely that the Supreme Court would feel the need to take up the case.

  • Even if the Supreme Court did take the case, their decision would not have to resolve anything about birthright citizenship overall. Their task is only to decide the case at hand, and their decision may or may not be based on principles that apply more broadly. They might, as a hypothetical, reach a narrow decision based on citizenship law as it stood between 1961 and 1967 and as it applied to a person whose parents were specifically from India and Jamaica and held visas of a particular type. Such a decision would not be applicable to the question of birthright citizenship for anybody not meeting those criteria, which would continue to be based on previous precedent.

    They could even reach a decision unrelated to the issue of citizenship at all; e.g. that the plaintiff did not have standing after all, or that the issue is not properly one to be decided by the courts. Part of the District Court's ruling in Robinson was that the election should be allowed to go ahead, and any questions about the winner's qualifications should be decided by Congress when it counts electoral votes, and only then might it be appropriate for a court to review that decision. I'm skeptical that higher courts would agree with this particular argument, which seems to me very impractical, but they could find some other reason why the decision was out of their hands.

Nate Eldredge
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    Bingo! It may be worth pointing out that all of this happened, even though the case against McCain was much stronger than the case against Harris. https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1089&context=mlr_fi – Just a guy Aug 16 '20 at 21:37
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    I dont like this answer, as it does not at a basic level acknowledge that there is no question of law here. The constitution plainly says so, and SCOTUS has affirmed it in 1898, not in the 1960's as Eastman falsely claims. – Kphysics Aug 16 '20 at 23:09
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    @Kostas: I understood the question to be about the procedural aspects rather than the legal merits, but I added a brief note in the third bullet that the clarity of the law makes it even less likely that the case would reach the Supreme Court. – Nate Eldredge Aug 16 '20 at 23:16
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    @Kostas Eastman talks about the 1898 ruling, actually. He does not mention any SCOTUS ruling in the 60s. I believe you misread something. – MWB Aug 17 '20 at 02:37
  • @MaxB Eastman doesn't talk about a specific ruling in the 60s, but vaguely asserts that the idea that the status of the parents did not matter only began to take hold in the late 60s. – phoog Aug 17 '20 at 17:13
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    Good answer overall, but I'd take issue with "The decision of the District Court would have to be appealed by the losing side, first to the Circuit Court of Appeals and then to the Supreme Court. Either of those courts could decline to hear the appeal"---While the Supreme Court has discretion not to hear a case that they could exercise jurisdiction over in almost any circumstance, it's quite the opposite at the Courts of Appeals: Most appeals at the intermediate level are of right and the COA does not have discretion not to hear the case – duckmayr Aug 17 '20 at 17:41
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    @duckmayr: I edited. – Nate Eldredge Aug 17 '20 at 19:47
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    @ruakh: Thanks, clarified. – Nate Eldredge Aug 18 '20 at 00:55
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    @MaxB Eastman says, quote: "that morphing does not appear to have begun until the late 1960s" In reality, there are affirming rulings from SCOTUS all through the 1800's and the concept has well established origin in British law for several hundred years prior. That is important because it precludes someone claiming the framers did not mean it. – Kphysics Aug 18 '20 at 10:28
  • @Kostas That's talking about the distinction between "anyone at all born on U.S. soil, including temporary visitors or even illegal aliens" vs. "legal permanent residents." This distinction is covered in the portion of Eastman that is actually quoted in the question itself. The former of those isn't even true in British law today, let alone for several hundred years. The U.S. is very nearly alone, especially among developed nations, in having such a policy. That said, I'd agree that that's clearly what the 14th Amendment says. – reirab Aug 19 '20 at 17:02
  • @Kostas As far as whether there's a question of law, though, I'd agree that there's not really any question about birthright citizenship in general, but I suppose there still could technically be a question about whether birthright citizenship counts as being a "natural born citizen" or not for purposes of eligibility for the office of President, particularly since the "natural born citizen" clause long predates the citizenship clause. That being said, I think the answer to even that question is almost certainly, "Yes, it does." – reirab Aug 19 '20 at 17:10
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No. The circumstances of Kamala Harris's birth fall squarely within the terms of United States v. Wong Kim Ark. As described in the other answer, the fact that Wong's parents had a permanent domicile in the US was not a deciding fact in the analysis.

Some people think that a foreign student, a temporary worker, or an illegal immigrant is just as much outside the jurisdiction of the US as an ambassador, but this is not the case. An ambassador to the United States is literally immune from the jurisdiction of the United States, to the point of being able to escape prosecution for crimes as serious as murder. The same is not true of other foreigners, whether they be lawful permanent residents, temporary nonimmigrants, or illegal immigrants.

In fact, this issue arose with respect to illegal aliens in Plyler v. Doe, as described in a very thorough answer to the question What is the meaning of “and subject to the jurisdiction thereof” in the 14th amendment? on this site. There, Texas argued that children of illegal immigrants were outside of its jurisdiction and therefore not entitled to 14th amendment protections. The Supreme Court found that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful." Even the dissent found that "the Equal Protection Clause of the Fourteenth Amendment applies to immigrants who, after their illegal entry into this country, are indeed physically 'within the jurisdiction' of a state."

Indeed, as the Cato Institute's Josh Blackman says in Birthright Citizenship Is a Constitutional Mandate, "the reason such people are called “illegal aliens” is that they are subject to U.S. law[s], and not in compliance with them." (I owe thanks to Just a guy for posting the link in comments.)

If illegal immigrants are within the jurisdiction of the United States, then legal nonimmigrants surely are as well, for all the same reasons and, on top of those, because they subjected themselves to its jurisdiction when they applied for a visa (if they did) and when they applied for admission as nonimmigrants under US immigration law.

In response to your edit:

I'd like to emphasize that this question is not about how the Citizenship Clause should be interpreted (...), but whether SCOTUS can be expected to opine on it, in light of recent controversies.

For the question to make it to the Supreme Court, someone would have to assert that someone born in the US is not a US citizen, and someone else would have to challenge that assertion. Furthermore, there would have to be some meaningful consequence of the dispute.

The most likely way for this to happen, it seems to me, is for a federal administration to adopt the position that a person born on US soil to illegal immigrant parents is not a US citizen. At some point in this person's life, it would become necessary to challenge that in court, either to defend against deportation or to seek some benefit, such as a US passport, provided by the federal government. The present administration made some noise a couple of years ago threatening to adopt such a policy, but they backed down, for reasons I cannot discern.

Whether a future administration might go through with it requires a crystal ball to predict, but given the huge headache this would cause every US citizen, who would be forced to document their parents' immigration status at the time they were born, and possibly their grandparents' immigration status at the time their parents were born, and perhaps going back even farther, it seems very unlikely to me.

phoog
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  • For Plyler vs Doe, Wiki says the four dissenting justices argued that the Texas law was not so objectionable as to be unconstitutional – MWB Aug 15 '20 at 23:21
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    @MaxB that is true, but they also found in general that illegal immigrants are subject to the jurisdiction of a state. So all 9 justices held that to be true, and that is the only element of Plyler v. Doe that is relevant to the citizenship question. That the education law was or was not constitutional does not have a bearing on the citizenship question. Remember, Plyler was about foreign-born alien children; their citizenship was not in question. Everyone accepted that they were not US citizens. – phoog Aug 15 '20 at 23:29
  • I skimmed the dissenting opinion in https://www.law.cornell.edu/supremecourt/text/457/202 and I can't seem to find the part about they also found in general that illegal immigrants are subject to the jurisdiction of a state. Can you give a more specific ref? – MWB Aug 18 '20 at 13:49
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    @MaxB it's identified in the answer to the other question that I linked to in this answer, in a quotation from the Wikipedia article (which no longer seems to be present in the Wikipedia article). The sentence is in paragraph 68, and it is also quoted in this answer: "I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically 'within the jurisdiction' of a state." – phoog Aug 18 '20 at 15:29
  • But why do you think they said in general? They specifically said that about the equal protection clause. I see nothing about extra generality. AFAIK case law is full of instances where the same term is claimed to have different meanings in different contexts, resident being one example. – MWB Aug 18 '20 at 17:12
  • @MaxB they didn't say "in general"; I did. I said "in general" because the finding that aliens are subject to the equal protection clause is more general than the finding that the Texas law under consideration was (or wasn't) constitutional. To argue that illegal aliens are not subject to US jurisdiction despite being covered by the equal protection clause because of their physical presence "'within the jurisdiction' of a state" is nonsensical. – phoog Aug 18 '20 at 18:23
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While I'm not directly addressing whether Eastman's argument in Newsweek is sound, it's worth noting that Eastman wrote in Newsweek, back in 2016, that Ted Cruz was clearly a natural-born citizen, and Cruz wasn't even born in the US.

I understand that citizenship by descent and citizenship by physical location at time of birth are different dimensions to analyse, but I believe it's generally accepted that natural-born citizenship by descent when born outside of the US is the less clear argument of the two. So, Eastman's analysis seems somewhat easy to dismiss as naked partisanship.

David
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  • generally accepted it isn't generally accepted, according to the editors: https://www.newsweek.com/editors-note-eastmans-newsweek-column-has-nothing-do-racist-birtherism-1524800 – MWB Aug 17 '20 at 05:34
  • Do you have a source for your claim about what's "generally accepted"? Before the last election, a Bush and a Clinton SG wrote this about Ted Cruz in the HLR: "Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a “natural born Citizen” within the meaning of the Constitution." https://harvardlawreview.org/wp-content/uploads/2015/03/vol128_ClementKatyal.pdf#page=3 – Just a guy Aug 17 '20 at 06:23
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    I agree that Cruz is a citizen. I'm in the same category. I'm just saying it's even more obvious that being born in the US makes anyone a citizen, other than the children of diplomats. – David Aug 17 '20 at 06:25
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    I think they're both fairly clear. The discussion here mentions how the treatment has changed over the early years, regarding which parents had to be citizens, etc. for a birth abroad to count, and the fact that articles have been written is because more people have questioned it. But that's my opinion. https://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/ – David Aug 17 '20 at 06:44
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    I don't see how it's possible to dismiss Eastman's analysis as "naked partisanship." This implies he came up with this analysis because it hurts Kamala Harris. This just isn't true. Eastman started making this argument over a decade ago -- he was writing articles using this argument and testifying about in front of Congress in 2008. – Just a guy Aug 17 '20 at 07:31
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    His argument conflates loyalty and jurisdiction. By implication, he's saying that anyone born with dual citizenship can't be natural-born. – David Aug 17 '20 at 07:58
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    A person convicted of treason has been shown to have no loyalty to the United States, but is very much under its jurisdiction. – David Aug 17 '20 at 07:59
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    Indeed. If owing allegiance to a foreign state is tantamount to not being subject to the jurisdiction of the United States, then how is it that foreigners are arrested, charged, tried, and punished for crimes? How are they subject to civil suits? – phoog Aug 17 '20 at 17:16
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    @Justaguy and what was the political contest of the 2008 articles and testimony? Was he arguing that John McCain shouldn't be qualified to be president? – phoog Aug 17 '20 at 17:17
  • @phoog Eastman's 2008 article and testimony had nothing to do with McCain. They were about birthright citizenship for undocumented aliens under the 14th Amendment. McCain's eligibility involves a statute, not the Constitution. FWIW, I think Eastman's argument is many bad things. I simply don't think his record justifies dismissing it as "naked partisanship." – Just a guy Aug 17 '20 at 17:35
  • @Justaguy - How about "his argument is non-partisan but anti-immigrant, and his not applying to Ted Cruz is naked partisanship"? – Obie 2.0 Sep 12 '22 at 21:33
  • How about "this is the same guy who tried to orchestrate overthrowing the government when his candidate lost the election". Sure, we didn't know it back then, but it certainly adds weight to the argument that he's a partisan hack. – David Sep 14 '22 at 19:23
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"Nonsense," runs the counter-commentary. Indeed, PolitiFact rated the claim of ineligibility as "Pants on Fire" false, Snopes rated it simply "False," and from the other side of the political spectrum, Conservative Daily News likewise rated it "False." All three (and numerous others) simply assert that Harris is eligible because she was born in Oakland—and is therefore a natural-born citizen from location of birth. The 14th Amendment says so, they all claim, and the Supreme Court so held in the 1898 case of U.S. v. Wong Kim Ark.

John Eastman's argument is so deeply contrary to all of the well settled, uncontroversial precedents of U.S. law (set forth above) and to the language of the Immigration and Nationality Act, that the U.S. Supreme Court would be exceedingly unlikely to even take up the issue. It verges upon being so frivolous that a court would impose sanctions on someone who tried to make it. This wouldn't even be close.

The District Court would rule that she was a natural born citizen on the pleadings without an evidentiary hearing, a unanimous three judge circuit court of appeals would affirm summarily in a very short per curiam opinion, and that would be that. There would be no en banc review and no serious consideration of granting certiorari.

Newsweek has apologized for even giving John Eastman's radical and bizarre interpretation a voice at all.

ohwilleke
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