As I've said, everyone wants in on birthright citizenship now. At Just Security, Adam Cox, Pamela Karlan, Marty Lederman, Trevor Morrison and Cristina Rodríguez: The Fundamental Flaws in the Barnett/Wurman Defense of Trump’s Birthright Citizenship Executive Order. From the introduction:
The Citizenship Clause of the Fourteenth Amendment states that “[a]ll 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.” In 1995, Walter Dellinger, then the Assistant Attorney General for the Office of Legal Counsel (OLC), testified before Congress that legislative proposals to deny birthright citizenship to children born to undocumented parents would “unquestionably” violate this constitutional guarantee. Indeed, Dellinger pointedly declared that although OLC “grapples with many difficult and close issues of constitutional law,” this is “not among them.”
That has been the consensus understanding among courts, scholars and executive branch agencies for well over a century … until four weeks ago, when President Trump issued Executive Order 14160. Section 1 of that Order declares that neither the Fourteenth Amendment nor the federal statute incorporating similar language (8 U.S.C. 1401(a)) confers U.S. citizenship upon two categories of “persons born … in the United States” whose fathers are not citizens or lawful permanent residents: (i) those whose mothers were “unlawfully present in the United States” on their date of birth; and (ii) those whose mothers were lawfully present in the country at the time of birth but only on a “temporary” basis (such as a mother present in the U.S. on a student, work or tourist visa).
[Recently], the New York Times published an Op-Ed by professors Randy Barnett and Ilan Wurman that attempts to defend the E.O.’s radical departure from generations of legal and scholarly consensus. According to Barnett and Wurman, Trump’s Order is “not necessarily” inconsistent with the plain language of the Citizenship Clause. They argue, in particular, that the Clause might not guarantee citizenship to someone born in the U.S. if both of their parents were not U.S. citizens and entered the U.S. unlawfully.
As we’ll explain below, Barnett and Wurman’s apologia for the Trump Executive Order is fundamentally flawed and irresponsible in several critical respects—most importantly, in its contention that a child born in the United States is denied citizenship because his or her parents once violated the law. The wide-ranging criticism the Op-Ed has generated in just four days should not be understood to reflect a serious scholarly debate among reasonable, competing perspectives; rather, it is a sign of how simultaneously wrong and dangerous the Barnett/Wurman attempt to defend the Trump Executive Order truly is.
I mostly agree with the essay's substantive arguments that follow. I do not, however, think it appropriate to characterize the Barnett/Wurman piece as "irresponsible" or "dangerous" (whatever that invective is supposed to mean in this context) or to claim that this "should not be understood to reflect a serious scholarly debate among reasonable, competing perspectives." That is just bullying and political posturing, not reasoned analysis. The arguments either persuade or fail to persuade. But it's not irresponsible or dangerous to make arguments that Professors Cox et al. find unpersuasive, or unsupportive of their political positions. And the fact that Barnett and Wurman have faced "widespread criticism" does not make them wrong.
A separate point is this: the authors are all nonoriginalists and in some cases vocal anti-originalists. Yet most of the arguments in the essay are originalist. (The essay relies a good bit on the Supreme Court's Wong Kim Ark decision, but that was a strongly originalist opinion.) Of course, non-originalists who are pluralists are entitled to make originalist arguments. But doing so acknowledges that (a) originalism is not a fundamentally flawed approach, either practically, historically, linguistically or morally; and (b) sometimes, at least, originalism leads to definite results in contested modern cases (on the current issue, apparently so definite a result that disagreement is "irresponsible" and "dangerous"!).
RELATED: Anthony Michael Kreis (Georgia State University College of Law), Evan D. Bernick (Northern Illinois University College of Law) & Paul A. Gowder (Northwestern University Pritzker School of Law) have posted Birthright Citizenship and the Dunning School of Unoriginal Meanings (111 Cornell Law Review Online (forthcoming 2025)) (32 pages) on SSRN, principally responding to the Barnett/Wurman argument. Again I mostly agree with it apart from the snark and outrage; I think, however, that the force of their argument is undermined by rather shrill attempts to delegitimize their opponents rather than simply to refute them.
(Thanks to Andrew Hyman for the pointer.)
UPDATE: Evan Bernick comments on my comments on his article:
Posted at 6:19 AM