Thing is an EO would be challenged, and if the SCOTUS ruled in favor, it opens the door for legislation.
Then again it may backfire.
Two Supreme Court opinions, both issued within the decade after ratification of the 14th Amendment are particularly relevant to construing the meaning of the Birthright Citizenship provision. Note that, because the meaning of the Birthright Citizenship provision did not determine the outcome in either case, the Court’s statements in both decisions are dicta, not binding holdings. But the Justices’ words should be considered authoritative insofar as they were expressed by Justices who lived through the enactment of the provision they were construing, and thus were well positioned to comprehend the meaning and intention of the words. These Court-expressed views on the meaning of the Birthright Citizenship provision should also be considered authoritative because the Justices were unanimous in making the statement in one case, and, in the other, the dissenters did not disagree with that particular point.
In the Slaughterhouse Cases,10 the Court wrote that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of … citizens or subjects of foreign States born within the United States.†That is as absolute and complete a statement as can be imagined, and it would deny birthright citizenship to a child born in this country to undocumented immigrants or to a transient alien mother. Then, two years later, in Minor v. Happersett, the Court unanimously and expressly recognized the existence of “doubts†that citizenship was automatic for “children born within the jurisdiction without reference to the citizenship of their parents,†after noting that citizenship attaches only when the immigrant owes “allegiance†to this country.11 These two Supreme Court rejections of automatic birthright citizenship for anyone born in this country, without regard to the parents’ citizenship status, are supported by facts undoubtedly known to those Justices, and certainly known to us.
During the same session in which Congress approved the 14th Amendment, it had already enacted the Civil Rights Act of 1866, providing that, for a U.S.-born baby to be a citizen, the baby must “not [be] subject to any foreign power.â€12 A child, although born in this country, who, after birth, returns with foreign citizen parents to, and lives in, the foreign country of which the child remains a citizen, is subject to that foreign power. Thus, that statute mandated that such U.S.-born children be denied U.S. citizenship. The record makes clear that, in considering the 14th Amendment, Congress did not repudiate the statute it had just enacted. Not even a single member introduced a bill to rescind that legislation. The absence of any attempts to walk back the statute suggests that Congress remained satisfied with that law, and that the same-session approval of the 14th Amendment did not signal any change of view.
