What the Justice Department overlooks in its historical argument to end birthright citizenship

Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices.

In my last column, I discussed how the Justice Department – in the battle over birthright citizenship – had selectively interpreted the original meaning of the citizenship clause of the 14th Amendment. But that is not the only hole in the government’s argument – in this column I explore how the DOJ has also overlooked the historical importance of certain key laws enacted by Congress.

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In the executive order seeking to end birthright citizenship, issued the day that Donald Trump returned to the White House, the president claims that the 14th amendment – added to the Constitution in 1868 – does not grant U.S. citizenship to children born to a father who is neither a U.S. citizen nor lawful permanent resident and a mother who is in the United States without the federal government’s authorization or with only temporary authorization. A lawsuit challenging Trump’s executive order, Trump v. Barbara, is currently pending before the Supreme Court. The solicitor general, which represents the federal government in Supreme Court litigation, submitted its written argument to the court last month. Oral arguments are now scheduled for April 1.

To bolster Trump’s attempt to deny citizenship to children born to mothers who were lawfully present in the United States under a temporary visa, the solicitor general’s written brief describes the experiences of Ludwig Hausding and Richard Greisser (though it does not name either man), who were born in the United States but nevertheless denied U.S. passports in 1885 on the basis that they were not U.S. citizens. According to the solicitor general, such “[e]xecutive practice from the 19th century [] supports the Citizenship Order” in showing “that children of temporarily present aliens” such as the parents of Hausding and Greisser do not “become citizens by birth.”

In support of this historical evidence, the government relies on an authoritative source, A Digest of the International Law of the United States, published in 1886 and edited by Francis Wharton. Wharton was at times an English professor, Episcopalian minister, and State Department bureaucrat, and his digest includes treatises, diplomatic announcements, and his own interpretation of the law. After explaining that Native Americans do not acquire U.S. citizenship at birth under the 14th Amendment, for example, Wharton adds (in apparent support of the DOJ’s position), “[t]he same reasoning, it may be argued, would exclude children born in the United States to foreigners here on transient residence, such children not being by the law of nations ‘subject to the jurisdiction of the United States.’” But Wharton does not explain why this position, which he describes as nothing more than reasoning that “may be argued,” should convince anyone else. And he follows this sentence by moving on to quote an 1854 letter from Secretary of State William Marcy explaining that, according to the common law, “any person born in the United States, unless he be born in one of the foreign legations therein, may be considered a citizen thereof until he formally renounces his citizenship.” Marcy also adds that there is no statute on this subject and there had not (at least back then) been any judicial decisions concerning it.

The latter view of citizenship actually aligns neatly with the Supreme Court’s eventual 1898 decision in United States v. Wong Kim Ark – extending citizenship to everyone born in the United States except children of diplomats, Native Americans, and invading military forces – that the Justice Department now hopes to narrow. But, despite Wharton quoting a source that conflicts with his own aspiration, the solicitor general does not grapple with this or the contradictions within Wharton’s assessment of the law of citizenship.

Which brings us back to Hausding and Greisser, concerning whom the government’s brief references letters from high-ranking government officials that Wharton compiled and preserved. As the solicitor general correctly describes, Hausding and Greisser attempted to acquire U.S. passports on the basis that they were U.S. citizens, the Department of State concluded that neither was a U.S. citizen based on their parentage, and the executive denied both applications in 1885 – 17 years after the 14th amendment was ratified. Lastly, the solicitor general is correct that U.S. government officials believed that both men were born in the United States; Hausding in Michigan and Greisser in Ohio.

However, a close analysis of Hausding and Greisser’s attempts to acquire passports reveals that describing their experiences as historical evidence of the nation’s constitutional citizenship law is misleading. While both were denied U.S. citizenship after the 14th amendment was ratified, neither citizenship claim appears to have rested on that constitutional provision. Instead, both claims centered on statutes enacted by Congress; specifically, the Naturalization Act of 1802 and the Civil Rights Act of 1866.

Indeed, Secretary of State Frederick Theodore Frelinghuysen didn’t even mention the 14th amendment in his letter concluding that Hausding was not born a U.S. citizen. Instead, Frelinghuysen explained that Hausding was not entitled to citizenship under the 1802 Act, which automatically granted citizenship to certain children whose parents acquired citizenship through the naturalization process. Frelinghuysen also mentions the 1866 law, which extended citizenship to some people born in the United States “not subject to any foreign power” as well as “Indians not taxed,” but implies that Hausding didn’t base his request on that law.

Considering Greisser’s claim to citizenship, Secretary of State Thomas Bayard –  in his view that Greisser should be denied such citizenship – also discusses the 1866 law. Bayard concludes that Greisser didn’t qualify for citizenship under this law because, as the child of a German citizen, he was born a German citizen. As the solicitor general notes, Bayard added that Greisser did not acquire citizenship under the 14th amendment because he was not born “subject to the jurisdiction” of the United States. But Bayard didn’t explain how he reached this conclusion.

One reason that the 14th amendment played no role in Hausding’s citizenship claim and only appears as an afterthought in Greisser’s attempt to acquire a U.S. passport – which goes unmentioned by the solicitor general – may be that the Constitution only had 13 amendments when the youngest of the two was born. Hausding was born in July 1861, according to an 1884 letter that the U.S. consular officer to Germany, John A. Kasson, wrote to Frelinghuysen, and Greisser was born in 1867, according to an 1885 letter from Bayard. Given this, the citizenship clause may not have been seen as particularly applicable to them, and its use as historical evidence to defend Trump’s executive order is of limited relevance.

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There can be no doubt that many people – including those born in the United States – were denied citizenship after the 14th amendment was ratified. Just two years later, for example, Congress enacted a law maintaining the country’s longstanding exclusion of most people of color from becoming naturalized citizens, a practice that wouldn’t end completely until 1952. But rather than endorse Trump’s narrow interpretation of the citizenship clause, the two late 19th century examples that the solicitor general discusses reveal the complexity of citizenship law.

Without a doubt, the 14th amendment is extraordinarily important. But it is merely one source of citizenship. As described above, before and after 1868, Congress has repeatedly passed laws granting citizenship to some people and not others. Each law reflects the political realities of the moment. For us today, the challenge is to understand each step in the nation’s long struggle with citizenship on its own terms – and not to simplify or overlook the historical record.