Immigration, Citizenship, and the Constitution (Jurisprudence for Jailhouse Lawyers, Part VI)

by Eric C. Sapp, LSPC Staff Attorney

Few provisions of the U.S. Constitution are clearer than the Fourteenth Amendment’s opening 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.” U.S. Const. Amend. 14, Sec. 1 (emphasis added). Unambiguously, the clause says all persons born in the United States are entitled to citizenship; it allows for no exceptions based on facts about parentage or the history of why someone was located where they were at birth.¹ The unconstitutionality of the President’s January 20, 2025 Executive Order entitled “Protecting the Meaning and Value of American Citizenship” (EO 14160, 90 FR 8449) presents an easy case on the merits, if ever there was one²—the order is blatantly unconstitutional, hence legally invalid. 

What isn’t clear in the Constitution, on the other hand, is whether there is any basis for the federal government to regulate immigration. True, the very clause just quoted envisions a regulation of naturalization—granting citizenship to persons not previously citizens—but it says nothing about federal power to restrict movement across borders or to deport. Nowhere in the text of the Constitution is such a power provided for. Notwithstanding the doctrine of “enumerated powers” whereby the federal government’s authority is supposedly limited, in the immigration context an expansive view of government reigns. Vague invocations of the “necessary and proper” and “Commerce” clauses (U.S. Const., Art I., Sec. 8) are relied on for the power of the government to detain and expel undocumented persons through force, massive curtailments of liberty. There being no textual basis, a judge-made doctrine of constitutional structure fills the void. As Justice Field put in, in what is traditionally known as the Chinese Exclusion Case, “The power of exclusion of foreigners being an incident of sovereignty belonging to the government […] as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of anyone.” Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889). The ideology of immigration enforcement rests on judicial invention. 

That undeniable historical truth renders it highly ironic that proponents of an executive prerogative-to-exclude decry an overreaching judiciary. But this inconsistency is readily explained when one realizes that the function of the assertion of presidential power today is to create an aura of legitimacy even where legality is absent. It further functions to coax the judiciary to self-abdicate whatever remains of their originally designed role of protecting rights of individuals and minorities by ensuring the rule of law. See generally The Federalist, no. 78 (Hamilton, May 28, 1788). 

Classical jurisprudence tends to focus inordinately on the merits of controversies, framing the problem of legal interpretation as concerning the relative scope of easy and hard cases, that is, between questions of legal application where rules and precedents determine unique outcomes and those where multiple outcomes seem more or less equally possible. Critical legal theory posits the transformation of one type into another: boundaries between determinate and indeterminate are not determinate, while the very freedom which this logical situation seemingly opens up is constrained by habits of the judiciary and the broader legal culture. Kennedy, A Left Phenomenological Alternative to the Hart/Kelsen Theory of Legal Interpretation, Legal Reasoning 167-177 (2008); Llewellyn, The Case Law System in America, 88 Columb. L.R. 989, 1005, 1009-1010 (1988). To this picture must be added that there abound in modern law procedural methods of avoiding ever reaching the merits of a controversy, such that a putatively “easy” decision may be exceedingly hard to reach. When virtues of judicial restraint are perverted into a denial of legal protection of basic rights—this I call judicial devoidance.  

More than a hint of this phenomenon was displayed by Trump v. CASA, Inc., 606 U.S. __ (June 27, 2025). Ostensibly, the only issue before the court was whether the preliminary injunction, extending nationwide, was within the district court’s equitable powers when no nationwide class was posed. Id. slip op. at 14. The majority said no. The symbolic effect, however, is more diffuse. The merits untouched, to be litigated in lower courts, the Supreme Court lent the executive’s position an apparent plausibility. The President was given a procedural victory when his lawyers should have been laughed out of court.  

1.  The phrase “birthright citizenship” conflates two distinct categories of citizenship based on birth. Jus soli is the right to citizenship based on being born within a given territory, whereas jus sanguinis citizenship derives from at least one parent’s citizenship status. For persons born in the U.S., jus soli citizenship is automatically and irrevocably conferred pursuant to the Constitution. In contrast, jus sanguinis rights are regulated by statute, the Immigration and Naturalization Act.  ↩︎
2.  Section 1 of that Order reads in part: “Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary […] and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.” Were Trump’s reading of “subject to the jurisdiction thereof” to be made coherent, he would have to admit that a person whose mother was undocumented or had a temporary visa, and whose father was neither a citizen nor a permanent resident, would be immune from any liability for lawbreaking. In particular, the feds would have no jurisdiction over persons in those categories; so ICE enforcement actions would be unlawful.  ↩︎