In a flurry of controversial executive orders, one item stood out from the others on January 20 when President Trump ordered the end of "birthright citizenship," Protecting The Meaning And Value Of American Citizenship.
Sec. 2. Policy. (a) It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s 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 was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
Predictably, a lot of people had a cow. At last count, four federal district court judges have blocked the implementation of Trump's policy. Much like a YouTube commenter posting "FIRST" without having watched the video, Judge John C. Coughenour, a Reagan appointee, took 25 minutes of arguments and proclaimed:
"I’ve been on the bench for over four decades," Coughenour, a Ronald Reagan appointee, said. "I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order."
The issue of birthright citizenship is not quite as complex as Trump's opponents have made it seem; in fact, a New York Times op-ed by two law school professors thinks this is not the slam dunk that the left thinks it is.
Everyone knows the history of the 14th Amendment. It was passed specifically to give American citizenship to freed slaves and to disavow the finding in Dred Scott vs. Sanford that "A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States." Indians did not enjoy birthright citizenship until the "Indian Citizenship Act of 1924." This, right there, should be a clue that the 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,” did not apply to everyone.
The central question raised by Mr. Trump’s order is what it means to be “subject to the jurisdiction” of the United States. The answer most legal observers give is that it includes virtually anyone born on American soil, including those whom the order is meant to exclude, namely children born to parents in the country illegally or temporarily. Indeed, on Monday, the American Bar Association described the order as an attack on a “constitutionally protected” right. Federal judges in four states have enjoined the order, with one claiming that it “conflicts with the plain language of the 14th Amendment.”
Not necessarily.
The Supreme Court has held, in the 1898 case United States v. Wong Kim Ark, that children born here to permanent residents are citizens. But it has never squarely held that children born to those illegally present are citizens. When the court addresses that question — which it almost certainly must — it should consider the 14th Amendment’s original purpose and the common-law principle of “jus soli,” or birthright citizenship, which informed the original public meaning of the text. Both relate to the idea of social compact and contradict today’s general assumption that the common-law principle depends solely upon place of birth.
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Many scholars take the view that “subject to the jurisdiction” meant simply subject to the power of the U.S. government, its army, its courts and its laws. This view, however, cannot explain several anomalies, including the status of children born to citizens residing within enemy-occupied territory, who appear to have been considered citizens if their parents remained loyal (the Supreme Court outlined this scenario in the 1830 case Inglis v. Trustees of Sailor’s Snug Harbor). And it cannot explain the status of children born to foreigners on foreign public vessels in U.S. waters, who were not considered citizens.
As President Trump posted on Truth Social Sunday:
The 14th Amendment Right of American Citizenship never had anything to do with modern day "gate crashers," illegal immigrants who break the Law by being in our Country, it had everything to do with giving Citizenship to former slaves. Our Founding Fathers are "spinning in their…
— Donald J. Trump Posts From His Truth Social (@TrumpDailyPosts) February 16, 2025
The 14th Amendment Right of American Citizenship never had anything to do with modern day "gate crashers," illegal immigrants who break the Law by being in our Country, it had everything to do with giving Citizenship to former slaves. Our Founding Fathers are "spinning in their graves" at the idea that our Country can be taken away from us. No Nation in the World has anything like this. Our lawyers and Judges have to be tough, and protect America!
This idea that the children of illegals is based on "we've always done it that way." The seminal citizenship case United States v. Wong Kim Ark involves legal resident aliens. The sole reference to the children of illegals being citizens is a footnote in a case concerning the access of illegals to public schools decided in 1982. That footnote infers citizenship because Texas did not bar children born of illegals living in Texas from Texas public schools, only children who had crossed into the country illegally.
Scholars of the 14th Amendment are not unanimous. For instance, Dr. John Eastman says the clear meaning of the 14th Amendment precludes citizenship for the offspring of illegals.
The Citizenship Clause of the Fourteenth Amendment states: “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.”
— Molly McCann Sanders (@molmccann) January 22, 2025
“Subject to the jurisdiction thereof” should be interpreted to mean owing sole allegiance to the United States. This is confirmed by one of the primary drafters of the clause, Sen. Lyman Trumbull, who stated “subject to the jurisdiction” meant subject to “complete”…
— Molly McCann Sanders (@molmccann) January 22, 2025
SCOTUS confirmed this understanding in Elk v. Wilkins when it denied birthright citizenship to an Indian born on a reservation who claimed citizenship as an adult. The Court held that the claim of birthright required him not to be “subject in some respect or degree to the…
— Molly McCann Sanders (@molmccann) January 22, 2025
As Eastman points out, the gloss placed on Wong Kim Ark is much broader than even its holding, which addressed the child of legal permanent residents. Birthright citizenship should, at the least, be limited to children of parents here legally. The situation we have today is,…
— Molly McCann Sanders (@molmccann) January 22, 2025
Sometime in the next four years, we will get an answer. In my personal view, there is nothing in the Constitution that requires or permits the children of illegal aliens to claim US citizenship or for illegal aliens to gain permanent residence status by the simple means of having a kid.
