Birthright Citizenship: The Issue Is Not the 14th Amendment, but Unclean Hands

I don’t like posting twice in one day, but this issue is time-sensitive, since a judge has blocked Trump’s executive order. This is a temporary restraining order, where only one party is present; both sides will argue about whether to make it an injunction instead. Professor Vladeck supplies us with the text.¹ The Justice Department should make the argument I explain in this Substack.²

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If a child is born to an illegal alien, is that person a U.S. citizen? People are arguing about this now, but both conservatives and liberals are getting it all wrong. This is not about how you interpret the 14th Amendment, not really.

To see why, consider birth tourism. Suppose Li from Wuhan comes to America illegally, paying a trafficker to smuggle her in over the Mexican border, so she can have her baby here. She does, and she says the baby, named Ziha, is a U.S. citizen. Moreover, she shouldn’t be made to go back to China, because that would leave the baby stranded. And she has very high priority for a green card, because she has a relative who is a U.S. citizen, as does her husband, and her brother, and her mother, and her niece, and her cousin, and . . .

You are outraged, I expect, unless you are a very partisan liberal. But let’s suppose that the liberals are right, as they probably are, in saying that the 14th Amendment says anybody born in the United States is a U.S. citizen. Does that make you feel better?

No. Even if you are liberal, you will likely say that the baby is a citizen, but you still have a feeling that there’s something wrong going on here. You don’t mind if somebody who’s in the U.S. for other reasons— as a graduate student, for example, or on an H1B— has a child who gets to be a citizen, but you feel uncomfortable that someone’s specifically taking advantage of the system.

Think about that feeling of yours. That’s the real reason you don’t want illegal aliens’ children to be citizens if you’re conservative: because it’s cheating. It’s letting a criminal get away with a crime. People who try to immigrate legally have to wait in line for years and most don’t make it, so their children cannot get the benefits of being a U.S. citizen. But somebody who cheats can get their child to be a citizen easily, with no wait.

When we feel there’s something unfair going on, there’s usually a legal remedy for it. “Where there’s a wrong, there’s a remedy” is one of the maxims of equity. In this case, the equitable rule that solves the problem is that you can’t go to court and ask the court to protect a benefit you obtained illegally. So if the U.S. immigration service seizes Ziha and is set to deport her tomorrow, Li can’t go to a court and ask the court to make the Feds let Ziha go. We say that Li comes to the court with “unclean hands” and must be turned away. So, yes, Ziha may be a citizen. But the government is free to deport her and not to give her a passport and not let her back into America ever in her entire life, because Ziha can’t go to court and get the benefits of her mother’s illegal action.

So the result is what we think is fair. Someone can’t get the rights of a U.S. citizen by cheating. No need to go into details of constitutional law; it’s all taken care of by a standard, age-old, and uncontroversial legal doctrine. And the doctrine is not a technicality or an excuse to get one’s favored policy, like so much of what passes for constitutional law: it matches everyday morality and it’s a neutral principle, not one made up especially to win immigration cases.

The Legal Information Institute does a fine job explaining the doctrine of unclean hands:

The clean-hands doctrine is the principle that a party’s own inequitable misconduct precludes recovery based on equitable claims or defenses . The doctrine requires that a party act fairly in the matter for which they seek a remedy. A party who has violated an equitable principle, such as good faith , is described as having "unclean hands.” The clean-hands doctrine is invoked when a party seeking equitable relief or claiming a defense based in equity has themselves violated a duty of good faith or has acted unconscionably in connection with the same subject matter out of which they claim a right to relief. The doctrine of unclean hands does not deny relief to a party guilty of any past misconduct; only misconduct directly related to the matter in which he seeks relief triggers the defense. As explained in Kendall-Jackson Winery v. Superior Court , 76 Cal.App.4th 970 (Cal. Ct. App. 1999) , the party asserting the unclean hands defense must prove that the misconduct relates directly to the subject matter concerning which a particular claim is made.

How does this apply to the Trump Presidency? It means that the President should issue an executive order saying that anybody who was born in the United States of illegal aliens will be deported. He did something like this saying it would only apply to people born illegally after 2024, but there’s no reason not to apply it to everyone, even if they were born in 1960 and are now collecting Medicare and Social Security benefits.³

The President should then start deporting people. They will go to court and ask for a writ of habeas corpus. The court will, under the doctrine of unclean hands, reject their suits.⁴ Without any court order to stop it, the immigration authorities then deport the illegals.

Now there is one special feature of the application of unclean hands here that you will have noticed, and probably you’ve been stewing about it: little Ziha didn’t commit the crime; her mother did. So how can we punish Ziha?

First, note that nobody is punishing anybody. Illegal immigration is a crime, and I suppose there must be a jail penalty for it, but as I understand it, the government never ever prosecutes anybody for it— which is scandalous in itself. Ziha’s mother has committed that crime, and could be jailed. Ziha has not committed it, so she can’t. So we’re not talking about punishment.

Nobody is punished for illegal immigration, but lots of people are deported for it. That is not a punishment. It is just the government preventing you from continuing to indulge in your crime of being in the country illegally. So Ziha’s mother can be deported, and I am claiming Ziha can too, and the courts, under unclean hands, cannot block that. But this is a case in which Ziha has received the benefit of the illegal act, but she did not commit the illegal act; her mother did. Thus, the easy case to see is that her mother can be deported and can’t claim priority as a relative for legal immigration. But what about Ziha?⁵

Well, the logic of the doctrine really doesn’t depend on who committed the crime; it depends on the benefit being unlawfully obtained. Suppose Ziha’s mother steals a diamond ring and gives it to Ziha. Can the owner get the diamond ring back? Of course. Ziha is perfectly innocent, but she is in possession of stolen property. She can’t go to court and complain that the owner took back the ring and the court should make the owner give it to her.

You can’t give the benefit of your illegal act to a friend or relative to protect it from repossession. U.S. citizenship is a benefit worth tens of thousands of dollars. We know that because lots of people would pay $50,000 for the right to be a U.S. citizen. When Ziha’s mother tries to give her citizenship by her illegal immigration, she is in effect stealing $50,000. And Ziha shouldn’t get to keep it.⁶

Footnotes

1. Now that I’ve skimmed the temporary restraining order, I see it is NOT brought by someone wanting to avoid deportation. It is brought by a state agency that wants federal funds and says if there are fewer citizens, it gets less funding.

My argument will work there, but it has to be adjusted. The state agency has unclean hands, because they have been the beneficiary of illegal immigration by using it to increase their federal funding. They, like the baby, are profiting from the mother’s illegal action of coming to America.

The temporary restraining order is very loose though. It’s an emergency, temporary, order, so we can cut the judge some slack, maybe. Note the boilerplate at the start about the defendant’s arguments, “if any”— well, the judge should know if the defendant was present or not at the hearing. The body of the text is sloppy too.

2. Ha ha! Do we really think the Justice Department Democrats will defend President Trump’s executive order? They’ll want to do a bad job. Amicus briefs will be important— arguments submitted to the judge by third parties to help him see things the two parties don’t explain. In this case, DOJ won’t make my Unclean Hands argument, so maybe I’ll have to write an amicus. I hope not. Anybody want to do it for me?

This issue of DOJ trying to “throw” cases will be very important this year. I hope President Trump has a plan.

3. If the illegally born child is covered by one of the many amnesties Presidents have been fond of using to void immigration law, that presents difficulties I won’t go into here. It would depend on the exact language of the amnesty.

4. It gets technical. The U.S. government can’t keep someone in jail forever just because they’re born illegally. They have to release them— but they can release them abroad. The Unclean Hands doctrine doesn’t say the government can push around a criminal any way it wants. Its aim is not to punish. Rather, it is to keep somebody from using the courts to keep the benefits of illegal acts.

5. And what if Ziha’s mother comes to the U.S. on a tourist visa, even though she came specifically to get U.S. citizenship for her daughter? That’s a separate question, but I’ll use this footnote to address it. In that case, Ziha’s mother has still taken advantage of the system, and we still feel it is wrong. What we need to do is specify in a law that anybody who has a baby in America while here on a tourist visa has committed a crime, or at least a civil offense (something with no jail time). Then the birth is illegal even if the stay in Las Vegas is a legal tourist visit.

6. An interesting hypothetical is what would happen if any American could sell his citizenship to a foreigner, leaving and letting that foreigner take his place. What would you think of Ziha’s mother coming to the U.S. every year when she’s pregnant, and then selling the citizenship to wealthy Russian would-be immigrants?