The Invalidity of the Proposed Executive Order on Statutory Grounds

Another fatal flaw in the proposed Executive Order that would create two legal classes of babies in this country (one born to citizen parents and the other not) is that there is a contrary federal statute on this subject. 8 U.S.C. Section 1401(a) defines citizenship as "a person born in the United States, and subject to the jurisdiction thereof." This statute was enacted in 1952.

Thus, the relevant standard for deciding whether any proposed executive order on this subject is lawful must look what "subject to the jurisdiction thereof" meant then. And at that time children born here to noncitizen parents were routinely given citizenship in line with the Supreme Court's opinion in Wong Kim Ark. In no way can the President's proposed order be read as consistent with that statute, even without considering the flagrant unconstitutionality of such a proposal.