Supreme Court To Hear Challenge To Trump’s ‘Birthright Citizenship’ Executive Order
The consequences could be YUGE – no more birthright tourism, no more anchor babies, it would be the legal equivalent of “the Wall” but would not be limited to the southern border.
You may recall what people called the “Birthright Citizenship” case from last July, which wasn’t actually about Birthright Citizenship, it was about universal nationwide injunctions in the context of Birthright Citizenship:
On May 15, 2025, the Supreme Court heard oral arguments in the Birthright Citizenship case. Except that birthright citizenship technically wasn’t before the Court, the issue was lower court national injunctions against Trump’s Executive Order instructing federal departments not to recognize birthright citizenship….
Yet the substantive merits of birthright citizenship hung over the proceedings and reared its head particularly from Justice Sotomayor who acted as if it was a settled question (hint, it’s not really) and was so hot under the collar that at one point CJ Roberts had to admonish her to let the counsel answer questions ….
The Supreme Court eventually ruled for Trump on the universal injunctions, but left a huge loophole (class actions) that allowed judges to get the same result in a different procedural manner. But left open in the SCOTUS ruling was the merits of what Birthright Citizenship is, or whether it actually is anything. Multiple federal courts ruled on the merits against Trump and issued injunctions against the Executive Order, which provides:
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.
(b) Subsection (a) of this section shall apply only to persons who are born within the United States after 30 days from the date of this order.
(c) Nothing in this order shall be construed to affect the entitlement of other individuals, including children of lawful permanent residents, to obtain documentation of their United States citizenship.
Trump filed a Petition for a Writ of Certiorari asking SCOTUS to take the case:
QUESTION PRESENTED The Citizenship Clause of the Fourteenth Amendment provides that those “born * * * in the United States, and subject to the jurisdiction thereof,” are U.S. citizens. U.S. Const. Amend. XIV, § 1. The Clause was adopted to confer citizenship on the newly freed slaves and their children, not on the children of aliens temporarily visiting the United States or of illegal aliens. On January 20, 2025, President Trump issued Executive Order No. 14,160, Protecting the Meaning and Value of American Citizenship, which restores the original meaning of the Citizenship Clause and provides, on a prospective basis only, that children of temporary visitors and illegal aliens are not U.S. citizens by birth. The Citizenship Order directs federal agencies not to issue or accept citizenship documents for such children born more than 30 days after the Order’s effective date.
The question presented is whether the Executive Order complies on its face with the Citizenship Clause and with 8 U.S.C. 1401(a), which codifies that Clause.
You can read the response and reply at the case docket.
Keep in mind at this case is argued on the internet for the next several months, there is no Supreme Court decision ever holding that the children of people illegally in the country or merely here temporarily are entitled to citizenship as a matter of birthright. The media will claim otherwise. But the case they will all cite, United States v. Wong Kim Ark, regarded the children of legal permanent residents. From the Petition:
Wong Kim Ark did not hold otherwise. Wong Kim Ark recognized that the Citizenship Clause guarantees U.S. citizenship not just to children of U.S. citizens, but also to children of aliens “enjoying a permanent domicil and residence” in the United States. 169 U.S. at 653. That limit was central to the analysis; the word “domicil” appears more than 20 times in the opinion. And the opinion suggests that U.S. citizenship does not extend to the children of aliens who are not “permitted by the United States to reside here.” Id. at 694.
Yet, long after the Clause’s adoption, the mistaken view that birth on U.S. territory confers citizenship on anyone subject to the regulatory reach of U.S. law became pervasive, with destructive consequences.
Today the Supreme agreed to hear the case in a short form Order:
25-365 TRUMP, PRESIDENT OF U.S., ET AL. V. BARBARA, ET AL.
The petition for a writ of certiorari before judgment is granted.
So it’s on.
The consequences could be YUGE – no more birthright tourism (where expectant foreign mothers travel here to give birth), no more anchor babies, it would be the legal equivalent of “the Wall” but would not be limited to the southern border.
Here is a small sample of reader comments from the NY Times (relatively neutral) report on SCOTUS taking the case:
If the Supreme Court sides with Trump, I will be in the streets seeks to voice my clear opposition to the authoritarians hiding behind there robes. This would be the final straw for this American citizen.
There is no ambiguity in the United States Constitution about birthright citizenship. We have a rogue Supreme Court.
If the Justices do not rule 9-0 on this one it’s an abdication of their already fringe legitimacy and the 25th amendment must be invoked to protect this country against any more of their mind breaking decisions
So yeah, if SCOTUS shoots down Birthright Citizenship there will be a reaction. Not quite Abortion-ruling-level reaction, but reaction. It would be one of, if not the, most consequential achievements of the Trump presidency.
If SCOTUS overturns birthright citizenship for illegal aliens, it will make Trump the greatest president in living memory.
I don’t care if he plays golf for the next three years, he will still be the best https://t.co/hWTUi5t8op
— Ryan James Girdusky (@RyanGirdusky) December 5, 2025
My view: There's no way the court will allow Trump to eliminate birthright citizenship in this manner.
The last time I said something like this, it was about how the court would never grant the president absolute immunity from criminal prosecution. https://t.co/u9u8zvcVqs
— Damon Linker (@DamonLinker) December 5, 2025
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to the full extent allowed by law.
Comments
Fingers and toes are crossed. Children of permanent resident aliens is one things. Those of visitors, legal or otherwise, is something completely different.
I predict the Supreme Court will rule that all children who are born of mothers who are in the country legally, citizen or not, shall be deemed to have birthright citizenship. But if a mother who is in the country illegally has a child it will also be illegal unless the father is a citizen.
Two illegals cannot begat a legal.
Agreed. Any other conclusion is in opposition to the original intent of the founding fathers and common sense. No other nation on earth permits this.
It also goes against the long standing common law principle that a person can’t benefit from an illegal act.
A person cannot benefit from an illegal act. Suppose, back in the bad old day of prohibition and on into the time when moonshining was illegal, Joe Blowe’s grandpappy ran an illegal still which the “revenoors” never found. With money earned, Joe Blowe’s grandpappy bought land on which he built a house, which he bequeathed to Joe Blowe’s father, and in which Joe Blowe was born, and which Joe inherited on his father’s demise. If it is found out that Joe Blowe has been enjoying the land and house bought with his grandsire’s ill-gotten gains, will Joe be required to turn the house and land over to the state; and, perhaps, any principal and interest accrued to monies left him by his moonshining grandfather?
That would be the SANE ruling but we don’t live in a sane world!!
Perhaps a more nuanced version of this is people LEGALLY residing in the Country with a legal mother or father. This would then cut out people legally here by accident (ie people passing through on their way to somewhere else) etc.
Anyone traveling while that pregnant is definitely hoping to have the child on a plane or in an airport.
As things have stood until now, a child born in US airspace or on a US-flagged carrier is born a citizen.
As far as I know, children born on foreign ships that happen to be transiting through US waters at the time, but will not land in the USA, are not citizens. Presumably the same would apply to someone born on a foreign plane flying over the USA on its way to Canada.
“No one is born or dies while in the air. They are born or declared dead where the plane lands.” – Some flight school instructor in a class I took years ago.
Not necessarily G. Friend had a premature birth while travelling in NZ at 24 weeks!! (Baby survived).
Justices Sotomayor, Jackson, and Kagan, in order of likelihood, will more likely than not dissent using their feelings dressed up as legal arguments, as usual.
But a woman has complete control of her body including abortion and the “father” has no say in it so why should he be used in this manner?
I pause to recognize Paula’s bigotry in assuming only women can give birth. /sarc
It was fairly common for storks to bring babies until recently when Biden opened the southern border and allowed birthing machines to enter.
It will not rule that. The constitution is clear, and the senate debate on its introduction bears that out. It was intended to include absolutely anyone except those who are immune from US law.
That must be why the Supreme Court granted certiorari. The issue is so clear that there is no room for reasonable debate so they have invited debate. Thanks for settling that Milhouse.
The issue is clear, and I can only imagine that cert was granted precisely in order to put the issue to rest once and for all. But we shall see.
You absolutely overeducated fool. Tell me how a country whose bedrock is a foundation of laws would then turn around and bestow upon someone who did something illegal a positive benefit.
There was no such thing as illegal immigration at the time of the 14th Amendment was being debated. The issue at hand was how should we repair what was done to the slave? Since it was unconscionable to send slaves back to a land that was no longer theirs, the Framers of the 14th Amendment thought it best to give those slaves and their heirs citizenship in America. Not even the Indian was considered America citizens until years later.
This is absurd. People like you leave been intentionally abusing the clause “subject to the jurisdiction thereof” to give a positive benefit to foreigners who blatantly committed an illegal act. And we Americans are sick of it.
The baby did not commit any illegal act. Its parents acts are none of its business.
The public meaning of the text is what matters, not what the various legislatures who ratified it might have intended. But as it happens we have a good idea what the legislatures did intend, because in the senate debate it was made clear that it covered absolutely everyone except children born to diplomats and to Indians who were not subject to US law. Even invading armies were not brought up as an exception; it took the Kim Wong Ark court to add that one.
I admire your certainty on this (and all issues). There are brilliant lawyers in the U.S. who are not so certain, including some in the SCOTUS. Even the professor does not seem predict the outcome. Thank you for sharing your brilliant legal analysis, which isn’t gaslighting at all.
Either you haven’t actually read the debate or your reading comprehension isn’t what you think it is.
Have you read the debate? I’ve seen the excerpts from the debate that the proponents of your position constantly and DISHONESTLY quote to support them. One need only actually read those quotes to see how they lie about them.
I’m not so certain, It ends us as a choice between the text and the legislative intent, the former supporting your position and the latter against it. I’d love to see the Court go with legislative intent, but I won’t be shocked if they go with the text.
If it did end up as a choice between what the text says and what the various legislators in the Congress and the states might have intended, then the answer is clear. The text always wins. A law means what the public meaning of its text says, not what legislators might have thought.
But in this case those legislators who did express their understanding said they understood it to mean exactly what it sounds like. The only exceptions would be babies born to parents who were exempt from US law. Diplomats, Indians Not Taxed, and (though they never mentioned it) invading armies.
Milhouse, I don’t necessarily agree with you, and in this case I think you’re being too emphatic, but I do respect your analysis. On this one, I want the Supremes to rule on intent rather than the text, but I can easily imagine it going the other way. In any case, you’re no dummy, and all the downvotes put me off.
Once this is done we should hope for a constitutional amendment to eliminate sanctuary cities & states. Naturally this would be difficult with enemy democrat opposition but it can be done under Article V.
No, it can’t be done without Congress. Also it’s impossible to get 38 state legislatures to ratify an amendment without bipartisan support.
But more importantly, the states shouldn’t want such an amendment, because it would strip them of a right they have fought for and used for over 200 years. Even states that support the federal government in the current fight over immigration will remember other fights in which they didn’t support the feds, and know that there will be future fights in which they won’t support the feds, and will miss this right to refuse cooperation, if they repeal it now.
I hope you are right Paula
Liberals love to point to United States v. Wong Kim Ark (1898) as legal precedent here, with the the SCOTUS having already deliberated on Congress’ 14th Amendment intentions; however, as the author of this article notes, Wong Kim Ark’s parents were legal US residents when he was born.
The idea that a nine-months-pregnant citizen of another nation can take up residency in this one without permission and, presto-change-o, give birth to a US citizen who will now be the basis for naturalizing not only the mother but also close relatives is ridiculous on its face.
That “idea” was baked in bad faith. It was none other than an illusionist’s trick to create more votes out of thin air, the goal being the securing of a permanent voting majority as liberals began to realize the odds of winning the culture war weren’t moving in their favor.
The answer to asylee question isn’t as cut and dried. Liberals worked hard to find this loophole, expand it, then drive a Mack truck through it.
The fact that Wong Kim Ark’s parents were legal US residents when he was born was irrelevant to his case. The reasoning is exactly the same regardless of his parents’ legal status. So long as they were not immune from US laws he would have been a citizen.
On the contrary, the opposition to this idea is in bad faith. No one actually believes that “jurisdiction” in the 14A means something different than it means in every other context. And as the WKA decision states, anyone who is in a country is subject to its jurisdiction, “independently of a residence with intention to continue such residence; independently of any domiciliation […] unless his case is varied by some treaty stipulations.”
“The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution…
[fifty or so pages of mostly unintelligible dicta, and then the holding]
…The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.
Those were the facts of that particular plaintiff. However nothing in the decision rests in any way on those facts. The exact same reasoning applies equally to anyone who was born in the USA to parents who were subject to US law. There is not one word in the decision suggesting otherwise.
Uh huh, nothing in the decision rests on those facts, other than the clear and unequival language limiting the issue and holding to the specific facts agreed upon; namely, the citizenship status of the child of permanent legal residents.
But you’re right, the reasoning would apply to the children of permanent legal residents, not, however, to the children of illegals or itinerants.
Do you understand how court decisions work? A court can only decide the case before it, and therefore is limited by that case’s facts.
But nothing in this decision rests on those facts, and it explicitly and approvingly quotes Daniel Webster as saying that anyone who is in a country is subject to that country’s jurisdiction “independently of a residence with intention to continue such residence; independently of any domiciliation“, unless there’s a treaty that says otherwise.
That’s an explicit statement that the reasoning applies to illegals, itinerants, and anyone else without immunity to the law. If you can’t shoot someone at noon on fifth avenue without being arrested, then your child born here is a citizen.
Nothing in the holding rests on those facts? The holding depends on those facts Milhouse. What you’re attempting to do is extend this holding beyond the facts to support a broader interpretation of the scope of the Citizenship Clause. The case did not address temporary visitors to the US or illegals. And its legal rational embraced the common law understanding of complete jurisdiction necessary to be born a citizen under the 14th amendment. Not anything broader, although there is a lot of rambling dicta.
No, the holding does not depend on those facts. You’re simply misrepresenting the truth. Its rationale applies equally to anyone who is under US jurisdiction, i.e. who can be taxed, arrested, prosecuted, sued, compelled to testify, etc., even if he is just passing through for an hour on his way to Canada or something. It explicitly says that the only people who are in the US and yet not under its jurisdiction are diplomats, tribal indians, and invading soldiers.
Based on that logic, foreigners on vacation in the United States are “subject to its jurisdiction.” If they commit murder while here, for example, they can be arrested, tried, convicted, and sentenced here before being deported if ever released.
No one, however, argues that children born here while their foreign mothers are visiting Disney World are ipso facto US citizens.
On the contrary, no one disputes that they are indeed US citizens. It is absolutely routine and common knowledge, and I can’t understand how you could ever have heard otherwise.
For what it’s worth, Google AI agrees with you and even extends citizenship to children born in the United States while their foreign mothers are on vacation here.
This is problematic in the sense that, if Google AI’s interpretation of Congress’ deliberations prior to passing the 14th Amendment is correct, Congress either didn’t consider how the Amendment might be abused or didn’t care.
Both Congress and the states knew perfectly well, and didn’t consider that abuse.
Bearing in mind that amendments are proposed by Congress and ratified by the states. So no one legislator’s views can really be determinative. But from what we know of the various debates, they were aware of exactly what they were approving. Indeed at least one senator was opposed precisely because he correctly perceived that it would make citizens out of Gypsies’ children, and he regarded that with horror.
I learned a lot from looking into your replies in this thread, however unpleasant the implications are, so thanks for that.
It is way past time that this gray area was adjudicated. For far too long liberals screamed at anyone who dared challenge this “sacred” interpretation that anyone born in the US is a citizen. Should the court rule for the President’s favor it will be epic.
I can’t wait to hear Justice AutoPen’s performance in oral arguments.
There’s also some other precedent supporting the Trump Admin position in particular with cases regarding Puerto Rico and subsequent Congressional legislation to address the Citizenship of residents of Puerto Rico and other territories captured in the Spanish American War. The phrase ‘subject to the jurisdiction’ can’t simply mean a potential for LEO to detain or give lawful orders in an interaction. Can’t even create that distinction for those present in the USA with diplomatic immunity b/c the USA can order them out of the country and they gotta obey this use of ‘jurisdiction’ by the Federal government. Instead the phrase encapsulates reciprocal duties and responsibilities from the person; jury duty, serving in a Sheriff’s Posse, service in the unorganized Militia IOW a legal basis of allegiance to the USA.
That’s just utter garbage. There is no question whatsoever that Puerto Ricans, and for that matter American Samoans, are fully subject to US jurisdiction. People born there are not US citizens by right of the 14A (and in the case of American Samoans are not US citizens at all) because they are not born in the USA. That is all.
The 14A requires two criteria: “born or naturalized in the United States”, and “subject to the jurisdiction thereof”. Puerto Ricans and American Samoans fulfill the second criterion but not the first. Puerto Ricans are nonetheless US citizens because Congress said so; American Samoans are not, because Congress never said they are.
But someone who is born in the USA, and has no immunity from US law, fulfills both criteria and is thus undoubtedly a US citizen by right of the 14A, and Congress can’t change that.
SCOTUS has never ruled directly on the question of whether the offspring of non Citizen/non lawful permanent residents are automatically US Citizens. The closest case is Wong Kim Ark in which he was ruled to be a Citizen at least in part b/c his Parents were in the Nation under what what now be ‘lawful permanent resident status’ aka green cards.
To take the view that anyone born under the jurisdiction of the USA is automatically a Citizen as you must do if you try and warp Wong isn’t tenable. Not within a legal/historical framework see the Insular cases nor from a practical standpoint. Your opinion would have no limiting principle, every person whose Mother managed to be ‘subject to the jurisdiction’ of the USA would automatically be granted Citizenship. That is simply not a workable interpretation. Beyond which it ignores any reciprocal duties and obligations of the Parents to the USA and to the State/community in which they temporarily and unlawfully reside.
We’ll find out soon enough from SCOTUS and their majority opinion is what counts, not yours or mine.
That is not true. The fact that his parents were here legally played no part at all in that decision. The court was clear that all that mattered was that they were here, and were subject to US laws.
You left out the first criterion. The 14A specifies both born in the USA and subject to their jurisdiction. The insular cases do not question even for a moment that people in unincorporated territories are subject to US jurisdiction. Their children don’t get automatic citizenship because they’re not in the USA.
That is the limiting principle, but also that they must be actually in the USA. American Samoans are subject to US jurisdiction but are not in the USA, so they’re not citizens. The same applies to Puerto Ricans, except that Congress decided to make them citizens anyway. Congress could change its mind tomorrow, and children born thereafter in PR would not be US citizens. But it can’t do that to those born in the USA, because their citizenship derives not from Congress but from the 14A.
This has been undisputed law for over a century.
It has definitely not been ‘undisputed law’ for over a century. If you want to say your argument is the predominant interpretation of 14A re birthright Citizenship then sure I don’t disagree. The fact is there’s considerable disagreement about the phrase ‘subject to the jurisdiction’. IMO your view in essence turns it into a matter of geography and renders it meaningless b/c in your formulation it is subsumed by ‘born in the USA’.
In my view it is a separate, independent criteria which is met through reciprocal duties obligations and loyalties between the sovereign and the individual. That it excludes those not Citizens or lawful permanent aliens b/c only those two categories have reciprocal obligations; jury duty, service in Sheriff’s posse, service in unorganized militia.
It has definitely been undisputed law for over a century. Even today no one honestly disputes it.
No, there is no controversy at all about what being subject to a jurisdiction means, in any other context. That means any “controversy” about it in this context is invented and disingenuous.
Have you even bothered reading what I have written? I’ve informed you at least three times that they are two separate independent criteria. The “subject to the jurisdiction” criterion was inserted specifically to exclude people born in the USA who were not subject to US jurisdiction at the time.
There are three classes of such people: Those with diplomatic immunity, “Indians not taxed” (a class that still legally exists but has been empty since 1924), and members of invading armies (a class not mentioned in the debates on the 14A, but that was picked up on by the Wong Kim Ark court).
To be an automatic citizen both criteria must be satisfied at birth. Geographic location within the USA, which excludes PR, USVI, American Samoa, etc., and being subject to US law, which excludes only those with immunity. If you can be arrested, sued, forced to testify, and taxed, you are subject to US jurisdiction.
The Wong Kim Ark court quoted Webster for the proposition that anyone who is geographically present in a country is subject to its jurisdiction, unless there’s a treaty that says otherwise.
Yes, it did.
No, it wasn’t. It wasn’t even peripheral. It happened to be that Wong Kim Ark’s parents were here legally, but the analysis in no way hinged on that. The decision would have been exactly the same had they not been. And that makes all reference to his parents’ legal status dicta.
No, it suggests no such thing. On the contrary, at the bottom of the previous page it quotes Daniel Webster: “independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations.”
I repeat: “independently of any domiciliation“. So all references to domicile are dicta, and the same reasoning applies to those not domiciled, for as long or as short as they are physically here.
Therefore the phrase at the bottom of that page, “so long as they are permitted by the United States to reside here”, simply means “so long as they have not been deported”. Obviously once someone has been deported, and thus is no longer being permitted to reside here, he’s no longer subject to US jurisdiction.
On the other hand this comment is just bizarre:
I agree that if they don’t rule 9-0 for birthright citizenship I will be surprised, but their legitimacy is not in any way “fringe”, and I can’t imagine what relevance the commenter thinks the 25th amendment could have. How could invoking it (by the vice president and the majority of the cabinet) in any way affect a Supreme Court ruling? How could such invocation (installing J. D. Vance as president) possibly “protect this country against any more of their mind breaking decisions”, assuming it needed such protection? Has this commenter ever read the 25th amendment, or have any idea what it says?
The discussion of the status of WKA’s parents was central to the decision. There was long discussion on who didn’t generally qualify based on their reasons for being in the realm.
My thoughts on this though is that SCOTUS could kick the issue to Congress.
No, it was not central at all. It wasn’t even peripheral. It was completely irrelevant. The reasoning in no way depends on it, and the decision itself says the opposite. The decision says the only ones who don’t qualify are those with diplomatic immunity, members of invading armies, and “Indians not taxed”.
How can you say that when SCOTUS recognized the following as the central question in the case:
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States,
The legal status of the parents was therefore the deciding factor in the decision. SCOTUS didn’t rule on the applicability to people illegally in the US at all.
Those were the facts of that case. But the question didn’t depend in any way on the fact that they were here legally. The reasoning did not hinge on that at all. Have you even read the case?! The court was clear that all that matters is presence and jurisdiction, and that the only people who can be present in the USA without being subject to its jurisdiction are diplomats, “Indians not taxed”, and invading soldiers.
SCOTUS:
The petition for a writ of certiorari before judgment is granted.
That is proof positive to me that this is not clear in the constitution.
That clarification is their one job. Their ruling fills in the gaps, whether you agree or not.
No, it isn’t proof. Cert is often granted on cases that end up being decided 9-0.
I lack any legal credentials, but would like to call attention to what appears to me to be obvious.
The 14th ammendment does not specify that the exceptions to “born * * * in the United States, and subject to the jurisdiction thereof” are limited to foreign diplomats and enemy combatants. These exceptions are assumed due to precedent in British common law, and subsequent court interpretations.
Therefore, the Supreme Court absolutely can change the exceptions, and hopefully will.
That is completely false. There ARE NO exceptions to “born * * * in the United States, and subject to the jurisdiction thereof”.
Children born to foreign diplomats and to invading armies are NOT exceptions at all They are not born citizens precisely because they are NOT subject to US jurisdiction. That’s exactly why that criterion was included in the first place. The same is true of Indians Not Taxed. They were not subject to US jurisdiction, and therefore their children were not citizens. That’s not an exception, it’s exactly what the rule specifies.
So there’s no need to resort to British common law, or to precedents. The text is clear: if the baby is born within US territory (i.e. not Puerto Rico, USVI, American Samoa, etc.), and its parents have to obey US law, can be arrested if they don’t, can be sued, and forced to give testimony, and have to pay taxes, then the baby is automatically a citizen.
The inclusion of the “Indians Not Taxed” provision taken from the Enumeration Clause seems to me to be a pretty clear indication the authors of the 14th Amendment definitely expected there would continue to be people residing and children born in United States territory that were not subject to the jurisdiction thereof and thus not citizens, and this would not be limited to edge cases like tourists and foreign diplomats. As has been pointed out numerous times, there would have been no need for a 1924 bill, when the last person born prior to the adoption of the 14th Amendment would have been nearly 60, to grant Indians citizenship if your claim the authors clearly intended to make every child born in the US after its adoption a citizen was true. You might be able to make the claim that Kim Wong Ark changed the interpretation but even then there’s no reason that the current SCOTUS has to defer to a precent that does not speak directly to the issue of persons born to parents here without legal justification for their residency.
The phrasing of section 1 of the Amendment is clearly a way to describe descendants of slaves without actually using the word, and was clearly meant to block the ability of a subsequent Congress to declare them non-citizens, and thus not granted the rights of citizens, because their ancestors had been brought into the United States involuntarily and they had been forced to remain in the United States under laws that allowed human bondage. The extension of this language to people who are here not just voluntarily but in contravention of our border control policies is just crazy.
Your interpretation of jurisdiction is similarly so expansive as to be meaningless for all practical purposes which is the only way you continue to make your absurd claims about every child born on US soil being a US citizen. Criminal prosecutions of foreign nationals are done with the concurrence from their national government that the prosecution is warranted and will be done justly. That’s the whole reason extradition treaties exist. If another government can prevent (even if it happens rarely) the criminal prosecution of a citizen then that person is not ‘under the jurisdiction’ of the country where they committed a crime.
Of course there would be. This was made very clear during the debates.
On the contrary. Tourists are not an edge case, and are not excluded. Children born here to tourists are automatically citizens, and no one has ever disputed that. And the debates made it clear that the only exceptions contemplated were diplomats and tribal Indians. They weren’t even thinking of invading armies; it took the Wong Kim Ark court to point out that they were a third example of people physically in the US but not subject to its jurisdiction.
No, it isn’t. Indians Not Taxed no longer exist, and invading armies are not a practical concern, but diplomats continue to exist and the jurisdiction clause was specifically designed to exclude their children from automatic citizenship. That is a very practical application, that we make use of all the time.
There was even a recent court case about it. Don’t you remember the ISIS woman who claimed citizenship by right of birth, and was denied it because her parents had diplomatic immunity at the time of her birth?
No, they are not. You have no idea what you’re talking about. Their governments are not even consulted.
Now you’re just being completely lunatic. Extradition treaties exist only to get foreign governments to hand over criminals who are not in our jurisdiction, and for us to hand over to other countries criminals who are in ours. If we want a criminal who is physically present in the USA, and has no diplomatic immunity, we just arrest and try him, and his government has no say in the matter. Likewise if a foreign government wants to arrest a US citizen who is in its country and has no immunity, it does so and doesn’t consult us. I can’t understand how you could possibly have got any other impression.
It can’t. No government can ever do that, unless there’s a treaty that says otherwise.
As Daniel Webster wrote in 1851, regarding a US citizen arrested in Cuba: “independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations.”
The Wong Kim Ark decision quoted this and said it had been repeatedly endorsed by the courts. Webster was talking about how Cuba had every right to arrest a US citizen just because he happened to be in Cuba at the time; in Wong Kim Ark the court turned that around to show that anyone present in the USA is subject to its jurisdiction.
I forgot this one:
Until 1924 there were still some Indians who were outside US law. They could not be arrested, they could not be sued, they could not be taxed, and they were not counted in the census. Therefore their children did not become automatic US citizens. In 1924 Congress decided that all Indians would now be subject to US law, and therefore would be counted in the census and their children born thereafter would be US citizens. It also granted citizenship to those of them who were already born. That is all. None of this is relevant to people who have always been subject to US law, including tourists and illegal aliens. The rule is clear: if you can shoot someone at noon on fifth avenue and get away with it, you’re not subject to US jurisdiction; if you can’t then you are.
Justice Jackson, “I don’t know nothin’ bout birthin’ babies.”
If Congress had to pass a law “The Indian Citizen Act of 1924” to grant citizenship for native americans. It would seem that the 14th Amendment did not apply to those born to here. They surely had more grounds to claim “birthright” citizenship. So applying this logic, there is no birthright citizenship, for illegals
See section 2 of the 14th amendment. That’s why.
I don’t think that Section means what you appear to think it does. Enumeration for representation under the Constitution has never been conditioned on citizenship or having the right to vote, or else the 3/5ths provision would have been meaningless. Women and children have always been counted, as well. The ‘Indians not taxed’ language is a straight copy of what appears in the Enumeration Clause (Article I, Section 2, Clause 3) so the only thing modified there was removal of the 3/5ths provision. The rest of the section is a somewhat complicated penalty for a state attempting to discriminate against a class of voters.
In fact, ‘Indians not taxed’ clearly contemplates there are residents of United States territory who are not “subject to the jurisdiction thereof” and are therefore not citizens. The claim the authors of the 14th Amendment thought that *all* babies born after its ratification were US citizens is also contradicted by this phrase because the status of being an ‘Indian not taxed’ is implicitly tied to being born of at least one parent that shares the same status.
Indeed section 2 is not directly relevant here. However this paragraph is wrong:
Of course there are residents of United States territory who are not “subject to the jurisdiction thereof”. That’s why that clause was inserted! If there weren’t any then that clause would be meaningless.
No one has ever claimed that *all* babies born after its ratification were US citizens. The jurisdiction clause was put in specifically to exclude two categories of babies born in the USA: Those born to foreign diplomats, and those born to “Indians not taxed”, i.e. those Indians who were immune from US law.
The Kim Wong Ark court pointed out a third category that is not subject to US jurisdiction, but which had escaped the notice of those involved in ratifying the 14A: Children born to invading armies. Since invading soldiers are not subject to US law (they can be taken prisoner, but they can’t be arrested or charged with crimes) any children born to them on US territory would not be automatically citizens.
The 14th amendment specifies two criteria for citizenship: (1) Born or naturalized in the USA, and (2) subject to the jurisdiction thereof.
Until 1924, not all Indians were subject to US jurisdiction. There was a category that the constitution calls “Indians not taxed”. Such Indians were exempt, not just from US taxes, but from US law generally. They could not be prosecuted or sued in US courts, they could not be compelled to testify in US courts, basically they were the same as diplomats.
An Indian could choose at any time to leave that category and become subject to US law, and any child born to him in the USA after that time would automatically be a US citizen, but he himself would have to be naturalized because at the time of his birth he was not subject to US jurisdiction.
In 1924 Congress abolished that whole category, by subjecting all Indians to US law. Since 1924 all Indians can be prosecuted in US courts, they can be sued in US courts, and they have to pay taxes. Therefore they are counted in the census and their children are US citizens.
Prior to recent times, no welfare or benefits were given to any immigrant. Considering the welfare state presently, illegally here and giving birth has the intent to defraud the US citizens. A nation cannot exist as a welfare state with open borders. Milhouse….. in the past… “original intent” for immigration did not include or infer the welfare state. We need to go back to original intent and that societal understanding for this case… not predicated on present wishes…especially those of Cloward and Piven nor the Democrat Party.
None of that matters. The constitution is clear, and if you don’t like it you have to amend it. You can’t ignore a constitutional provision just because it has become inconvenient.
I have very mixed thoughts about this one.
First of all, I’m glad to see that the challenge to birthright citizenship does not include the children of one citizen or one lawful permanent resident parent. I am all for discouraging illegal immigration.
But, how do we define an American? Will children of foreign students in the USA or intracompany transfer residents (a nonimmigrant status worked into law in reognition of how deeply intertwined US and Canadian economies were; and now used by many international companies with US interests) be affected?
With the abolition of birthright citizenship, we might also see situations in which persons born in the USA to illegal immigrant parents live long enough in the USA to give birth to a new generation in illegal status. The Arab states’ keeping the Falastin Arab refugees of the 1948 war and their descendants stateless “refugees” down to the fifth generation has created no end of problems for the host countries. Do we want something like that in the USA? I hope not!
I think the answer to your question is found in various bills, notably the 1924 Indian Citizenship Act, whereby Congress granted citizenship to Native Americans. Moving away from birthright citizenship being a Constitutional provision would mean that Congress could legislatively grant citizenship or provide for paths to naturalization for various groups.
This hinges on “illegal”. It’s truly “unfair” to break in line for those that want to be and are willing to go through the process. Citizenship has value.
As for the “refugees”, they were transformed into a militant force by the Arab states who didn’t want them. They became refugees for several reasons… fear of being caught in crossfire, fear of being murdered by the attacking armies that said that anyone still in Israel were traitors, instructed by imams to leave, and those promised to get all the dead Jews possessions once they killed all the Jews. Pick your poison….
In Wong Kim Ark, the definition of lawful permanent resident was not as carefully spelled out in law as it is today. The decision merely noted that Wong’s parents were not in any diplomatic status accredited by the Emperor of China.
While I recognize that the longstanding understanding of birthright citizenship has been abused, I’m queasy about the President’s action.. Policing illegal immigration has never been easy. We could easily create an intergenerational class of people living in the shadows as two illegals have children who grow up and have children with other illegals. Nationality statutes presume that a foundling under the age of five encountered in the USA is a citizen by birth. Would this have to change? If not, could it lead to an epidemic of illegals abandoning small children born here, creating public charges? We’ve already seen parents leaving older children in the care of coyotes (who are not nice people) in order to get them into the USA. How will a hypothetical John Doe born in the USA–if Trump’s desire carry–prove that he was not born to people here illegally if he is challenged?
And, will this grow into a “racial” issue? The large number of illegal Latin migrants admitted under Biden may well be begetting and bearing children in the USA as we discuss the issue here. Will we come to prejudge that a swarthy Latin must prove his right to birthright citizenship, while ignoring the blonde children of Irish, Israelis, or Poles living and working here illegally (we have such people–well, many of the Israelis are actually swarthy)?
And, what of the children of persons who give birth in the USA while their possibly dicey asylum or other immigration-related cases are pending adjudication?
Because, as it said, that was the only thing that mattered.
It didn’t matter how long they were here, or whether they were residents or just passing through. A person’s mere presence in a country, “independently of a residence with intention to continue such residence; independently of any domiciliation”, means he is under its jurisdiction unless there is a treaty that said otherwise.
They weren’t diplomats, they weren’t members of an Indian tribe, and they weren’t members of an invading army. That meant Wong was born within the USA and under its jurisdiction, and was therefore a US citizen.