Can Marco Rubio Be Deported?

I am sometimes asked if Marco Rubio is deportable. I am not an immigration attorney, but here is my analysis of the question from a constitutional law perspective.

Rubio’s Citizenship

Under the Fourteenth Amendment, Rubio is a citizen of the United States if he was born or naturalized in the United States. It does not appear that he is a naturalized citizen. On January 15, 2025, he said he “**had the privilege to be born a citizen.” Naturalization is only [available to non-citizens](https://www.uscis.gov/laws-and-policy/legislation/immigration-and-nationality-act). Accordingly, the question turns on whether he was born in the United States and, if so, whether the Fourteenth Amendment means what it seems to say. See [U.S. Const.Amend. 14, §1](https://www.law.cornell.edu/constitution/amendmentxiv)** (“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.”)

Rubio was born in the United States on May 28, 1971. Under a natural reading of the Fourteenth Amendment, therefore, he would be a citizen.

But wait . . .

Trump’s Executive Order on Birthright Citizenship

On January 20, 2025, President Trump issued an **Executive Order Protecting the Meaning and Value of American Citizenship**, Exec. Order №14,160, 90 Fed. Reg. 8449 (Jan. 29, 2025) directing federal officials to adopt an unnatural reading of the Fourteenth Amendment. Specifically, they are to read the “born or naturalized” clause as if it contained a proviso that the “born” part does not apply if the person’s mother was either in the United States on a visa or unlawfully present in the United States, unless the father was a U.S. citizen or a lawful permanent resident.

Does the Executive Order Make Rubio a Noncitizen?

No.

According to reports in ***The Washington Post and [The Atlantic](https://www.theatlantic.com/politics/archive/2011/10/rubios-parents-were-plain-old-immigrants-not-refugees/336501/)*, Rubio’s parents were not U.S. citizens at the time he was born; they did not become citizens until 1975. See Adam Martin, [Rubio’s Parents Were Plain Old Immigrants, Not Refugees](https://www.theatlantic.com/politics/archive/2011/10/rubios-parents-were-plain-old-immigrants-not-refugees/336501/)*, The Atlantic* (October 20, 2011).

That does not mean that the Executive Order now makes him a noncitizen, however.

First, by its terms, the **Executive Order **only applies to persons who are born in the United States more than 30 days after the date of the Order.

Second, the Executive Order only applies to people whose mothers were in the United States either pursuant to a visa or unlawfully. If Rubio’s mother was a lawful permanent resident at the time she gave birth to Marco, then the Executive Order would not apply even if it was retroactive.

Third, even if the Executive Order was retroactive and his mother was merely a visa holder or was unlawfully present, the Order still would not apply if his father was a lawful permanent resident at the time. Although his parents had not yet become citizens at the time he was born, one or both of them could have been a lawful permanent resident at the time, in which case the Order would not apply even if it was retroactive.

Could a U.S. Supreme Court Ruling Affect Rubio’s Citizenship?

Possibly.

**Several federal courts have declared the Executive Order unconstitutional and enjoined its enforcement. The U.S. government, however, has [filed a challenge](https://www.supremecourt.gov/DocketPDF/24/24A884/352051/20250313135341225_Trump%20v.%20CASA%20Inc%20application.pdf)* to these rulings in the United States Supreme Court. They argue that because of the “subject to the jurisdiction” condition on birthright citizenship, children born to citizens of other countries do not get the benefit of the Fourteenth Amendment. In this context, they argue, jurisdiction *means “political” jurisdiction, not regulatory jurisdiction. “Political jurisdiction,” they say, means that a person “owes allegiance to” the country. Apparently, the idea is that babies are conclusively presumed to have pledged allegiance to the United States if their parents are domiciled here, but they are presumed to not have pledged allegiance to the United States if their parents are not domiciled here.

It may be questioned whether babies have the legal capacity to pledge or owe anything. In any event, at the time the Fourteenth Amendment was enacted, “[d]omicile was neither mediated nor restricted by state or federal law and could arise irrespective of governmental consent.” See Mark Shawhan, The Significance of Domicile in Lyman Trumbull’s Conception of Citizenship, **119 Yale Law Journal 1351, 1359 **(2010).

Nevertheless, the U.S. government **is arguing **before the Supreme Court that children who are born to parents who are only temporarily present in the country, that is to say, parents who have not established a permanent domicile in the country, are not U.S. citizens.

If the Supreme Court Rules in the Government’s Favor

If the U.S. Supreme Court interprets the Fourteenth Amendment to limit citizenship to people who are either naturalized or born to a citizen, then Rubio would not be a citizen. His parents were not citizens when he was born.

If the U.S. Supreme Court interprets birthright citizenship to include children who are born to people who are either citizens or domiciled in the United States at the time of birth, then Rubio might or might not be a citizen, depending on the intentions of his parents at the time he was born.

**Rubio has said **his parents “had always hoped to one day return to Cuba if things improved and traveled there several times.” That suggests an intention not to remain in the United States permanently. If their intentions never changed, then they would never have established a domicile in the United States. Under the U.S. government’s novel domicile theory, Rubio therefore would not be a citizen unless his parents changed their minds and formed the intention to remain permanently in the United States sometime before 1971.

The fact that his parents **waited 15 years to petition for naturalization and that it came [four years after Rubio was born](https://www.scribd.com/document/62055196/Rubio-Naturalization-Petition-CERTIFIED-from-National-Archives) might cast doubt on the claim that they formed an intention to remain in the United States permanently before he was born. On the other hand, if there is evidence that Rubio’s parent(s) had been granted lawful permanent resident status before he was born, that might support a finding of domicile at the time of Rubio’s birth. Even if a certification under oath of an intention to remain in the United States permanently does not appear in an [application for permanent residence status](https://www.uscis.gov/sites/default/files/document/forms/i-485.pdf)**, I would think that it can reasonably be inferred, even if not conclusively, that someone who applies for, and is issued, lawful permanent residence status very probably intends to remain in the United States permanently. I’m not an immigration law specialist, but I would expect that evidence of a contrary intent could also be considered, if any such evidence exists.

If the Supreme Court Does Not Rule in the Government’s Favor

Even if the “political allegiance” interpretation of jurisdiction is valid (and I am not saying it is), U.S. Supreme Court precedent at the time the Fourteenth Amendment was enacted supports a conclusion that noncitizens who are in a country only temporarily nevertheless owe allegiance to the country while they are there. In *T**he Schooner Exchange v. McFaddon***, 11 U.S. 116 (1812), Justice Marshall wrote that temporary visitors to the United States “owe temporary and local allegiance” to the United States and are “amenable to the jurisdiction of the country.”

It seems unlikely that the Supreme Court is going to decide in the government’s favor on this one. **Strange things **are always possible, though. No attorney can ever offer an absolutely certain prediction about how the Supreme Court is going to interpret the Constitution.

If the Supreme Court does indeed rule against the government, then the Fourteenth Amendment will mean what it says: any person born or naturalized in the United States is a citizen. Rubio will be safe.

Conclusion

It seems likely that Rubio is a citizen and that the U.S. Supreme Court will, one day, render a decision that assures him certainty of that.

If the administration of which he is a part wins in the Supreme Court, however, then he might someday have to defend his citizenship in court, if a procedurally adequate challenge to it is filed.

Even if a court were to decide against him, though, he still could not be deported unless grounds for deportation exist, such as that he **violated a law. He might also be deportable if he [decides that his presence might have adverse foreign policy consequences](https://www.law.cornell.edu/uscode/text/8/1227)**. Whether and to what extent he could challenge his decision to deport himself is a topic for a day when I decide to address how many angels could dance on the head of a pin over which a pig is flying.