Courting change: Marco Rubio defended birthright citizenship in legal filing

As a presidential candidate in 2016, Marco Rubio defended the conventional understanding of birthright citizenship, which contradicts the view embraced by the administration he currently serves as secretary of state. The contrast is especially striking because Rubio is one of the defendants in federal lawsuits challenging President Donald Trump's attempt to restrict birthright citizenship by executive decree.

When New York Times reporter Adam Liptak noted those points this week, State Department spokesman Tommy Pigott said it was "absurd" that the paper was "wasting time digging around for decade-old made-up stories." Yet Rubio's history on this issue is relevant to the birthright citizenship debate because it illustrates the clash between Trump's idiosyncratic reading of the 14th Amendment and a longstanding, bipartisan consensus about its meaning.

The 14th Amendment says "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are "citizens of the United States." An executive order that Trump issued on his first day in office nevertheless purported to exclude U.S.-born children from citizenship when neither parent is a citizen or legal permanent resident.

That order is consistent with the 14th Amendment, Trump argues, because the children it covers are not subject to U.S. jurisdiction. The government's lawyers say jurisdiction requires both "primary allegiance" and "permanent domicile" — criteria that undocumented immigrants, legal visitors, and authorized temporary residents cannot meet.

Trump's position is untenable for reasons that Rubio's attorney, election law specialist Jason Torchinsky, explained in a 2016 motion to dismiss a lawsuit by fringe presidential candidate David Librace. The lawsuit argued that Rubio, then a Florida senator, was not qualified to run for president because his Cuban immigrant parents were not U.S. citizens when he was born.

That argument was fundamentally mistaken, Torchinsky said, because Rubio was indisputably born in the U.S, which was enough to make him a "natural born citizen" — the requirement that Librace claimed Rubio did not meet. "Under the common law of England at the time of the American founding, under U.S. Supreme Court precedent, and under U.S. historical practice," Torchinsky noted, "anyone born in the United States, regardless of ancestry and immigration status of the parents, is a 'natural born citizen' under the Constitution."

English common law recognized just two exceptions to the general rule of citizenship by birth: children of diplomats and foreign military invaders, groups that were not subject to English jurisdiction. When the 14th Amendment was ratified in 1868, Torchinsky wrote, "there was no question that persons born in the United States to foreign parents (who were not diplomats or hostile, occupying enemies) were citizens of the United States by virtue of their birth."

That understanding was apparent in early judicial decisions and in subsequent legislative debates. The Supreme Court confirmed it in 1898, when the justices held that a man who had been born to Chinese parents in San Francisco thereby qualified as a U.S. citizen.

The Court recognized one additional exception to birthright citizenship in the American context: Like the offspring of diplomats and foreign enemies, it said, "children of members of the Indian tribes owing direct allegiance to their several tribes," which had quasi-sovereign status, were not subject to U.S. jurisdiction within the meaning of the 14th Amendment. But apart from those three exceptions, the Court ruled, anyone born in the United States automatically becomes a U.S. citizen.

The Supreme Court has repeatedly reiterated that principle, holding that even children of unauthorized residents are citizens by birth — a position echoed by officials in the executive and legislative branches. This background explains why Rubio's lawyer warned that "entertaining Mr. Librace's argument would jeopardize centuries of precedent."

That is precisely what Trump aims to do, but so far his plan has not fared well in the courts. The Supreme Court is expected to take up the issue during its next term.

Where will Rubio stand then? According to Pigott, the secretary of state is "100 percent aligned with President Trump's agenda."

Jacob Sullum is a senior editor at Reason magazine.