Birthright Citizenship

Hours after President Trump was inaugurated on January 20, 2025, he signed an Executive Order which serves to undo birthright citizenship. The Executive Order states that citizenship does not automatically extend to persons born in the US in two circumstances:

1. when that person’s mother was unlawfully present in the United States and the 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 at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

The Executive Order seeks to solve two issues that have continued to increase in the last 20 years: anchor babies birthed to illegal aliens and birth tourism by well-off foreigners.

As expected, Trump’s Executive Order was immediately challenged. Today, US district court judge John C. Coughenour (a Reagan nominee) in the Western District of Washington – Seattle Division issued a temporary restraining order enjoining the Trump Administration from not issuing citizenship documents to children of illegal/temporary aliens or otherwise taking actions in accordance with its citizenship policy.

This issue will soon make it to the Supreme Court.

The citizenship clause of the Fourteenth Amendment, ratified in 1868, 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.”

As to birthright citizenship, this clause two obvious parts: the person must be born in the US, and they must be “subject to the jurisdiction thereof.”

The question of whether citizenship is afforded by law to all children born on US soil – including those of illegal aliens or temporary visitors on visa – has not been specifically addressed by the Supreme Court, though the Court has ruled on similar issues. And this question has been of increasing importance, both with the emergence of Trump – the man who promised to end birthright citizenship – and the millions of children born in the US by illegal immigrants, which effectively makes their parents permanent residents (anchored, albeit still illegally).

This comes down to the interpretation of what it means to be “subject to the jurisdiction” of the United States. And even among conservatives, the meaning of that phrase isn’t uniform. If we can briefly explain…

The Fourteenth Amendment’s citizenship clause was “meant to constitutionalize a similar declaration of natural-born citizenship in the Civil Rights act of 1866”, which prohibited discrimination on the basis of race and provided citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”

Opponents of birthright citizenship (or, perhaps more accurately, those advocating for an originalist interpretation of the citizenship clause) argue it “does not mandate that the U.S.-born children of illegal or nonpermanent resident aliens be treated as U.S. citizens as the result of their mere birth on U.S. soil.”

That conclusion is supported by the legislative record, and Congressional debates concerning the content of the Fourteenth Amendment do provide some context as to what the citizenship clause meant at the time. Ohio Senator Jacob Howard, who served on the Joint Committee on Reconstruction, stated:

“This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

Consistent with that view, the Supreme Court, in the Slaughter-House Cases, stated “The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Slaughter-House Cases, 83 US 36, 73 (1873).

Also instructive are the views of legal scholars contemporary to the time the Fourteenth Amendment was passed. In 1880, Thomas Cooley wrote that to be “subject to the jurisdiction thereof” meant “full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”

And in 1881, Alex Porter Morse concluded:

the “children of aliens, the accident of whose birth occurs in American soil, and minors commorant in the country, are invested with the national character of the parent.” Aliens “are subject to the jurisdiction of the United States only to a limited extent.”

Similarly, then-Supreme Court Justice Samuel Miller in 1981 stated:

“If a stranger or traveller passing through, or temporarily residing in this country, who has not himself been naturalized, and who claims to owe no allegiance to our Government, has a child born here which goes out of the country with its father, such child is not a citizen of the United States, because it was not subject to its jurisdiction.”

It seems these interpretations are natural, if only because of the inherent power of a nation to control its borders and the legal status of those who cross illegally. Illegal aliens do not enjoy the same rights or benefits as legal residents or US citizens (though they are subject to US taxes). They cannot vote, they cannot possess guns, and their unlawful entry into the US is itself a federal offense. Federal law allows states to deny illegal aliens many public benefits and “imposes sanctions on employers who hire unauthorized workers.” Arizona v. US, 567 US 387 (2012). They are transient by definition – arriving illegally and being subject to immediate removal, generally. Are we to believe that the Fourteenth Amendment was ratified to allow for citizenship for their offspring?

Yet, like we said, there is no conservative uniformity on this issue.

Many argue that the Fourteenth Amendment codifies the English common law birthright citizenship. John Yoo (like others) concludes that “subject to the jurisdiction thereof” is in reference “to discrete categories of persons that American law does not govern, such as diplomats and enemy soldiers occupying U.S. territory during war.”

Yoo also writes the citizenship clause was not drafted “to alter the concept of citizenship, but to affirm American practice dating from the origins of our Republic.” After all, the US “followed the British rule of jus solis (citizenship defined by birthplace), rather than the rule of jus sanguinis (citizenship defined by that of parents) that prevails in much of Europe.”

In explaining the British rule, Yoo cites to William Blackstone, the 18^th century English jurist who had a profound influence on the founding generation, who wrote: “the children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such.” In the next sentence, Blackstone compared the English rule to that of France, which established “if a child be of foreign parents, it is an alien.”

What did citizenship look like in early America – did the US follow the English rule? Others have observed that a “comprehensive survey of antebellum citizenship law concludes that birthright citizenship was the legal norm in the first half of the nineteenth century.”

The common law history was extensively cited and considered instructive in US v. Wong Kim Ark, an 1898 case where the Supreme Court held:

“The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.”

Those on the other side of the Fourteenth Amendment – those who believe it does not grant birthright citizenship without exception – argue the American Revolution rejected jus soli (citizenship by birthplace), that the Declaration of Independence “is a complete and categorical rejection of jus soli.” We aren’t convinced by those arguments; rather, there is a much more straightforward answer from the Wong Kim Ark dissent: “unless the municipal law of England appears to have been affirmatively accepted, it cannot be allowed to control in the matter of construction.”

What of the Fourteenth Amendment’s legislative history discussed above? It goes both ways. Law Professor Garrett Epps describes the discussions concerning the Fourteenth Amendment’s proposed citizenship clause between two Senators:

“The Senator from Maine suggests to me, in an undertone, that persons may be born in the United States and yet not be citizens of the United States. Most assuredly they would be citizens of the United States unless they went to another country and expatriated themselves . . .”

Other Senators had similar views, such as John Conness of California: “I voted for the proposition to declare that the children of all parentage whatever, born in California should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.”

Yoo also notes that “If the 14th Amendment’s drafters had wanted ‘jurisdiction’ to exclude children of aliens, they easily could have required citizenship only for those with no ‘allegiance to a foreign power.’”

One of the best rebuttals to that point comes from Amy Swearer, writing that “the term ‘allegiance’ was considered and explicitly rejected because it could have been construed under the English common law as including all those owing ‘a sort of allegiance,’ such as temporary sojourner and Indians born within the sovereign dominions of the United States.” Thomas Cooley had similar thoughts on the allegiance issue back in 1880.

With that brief exposition setting out both sides, there is the reality that the Trump Administration faces a Supreme Court that is undoubtedly hesitant to overturn a broadly accepted Constitutional citizenship rule – one that has existed for 100+ years – that would implicate the lives and the fundamental rights of millions to come. (When you think of judges, always think of pragmatics.) Not that Trump is wrong – it’s that the Supreme Court doesn’t want to go that far.

If we may can make an early a prediction: the Supreme Court undergoes a textual analysis of the Fourteenth Amendment’s Citizenship Clause, cites to birthright citizenship being recognized throughout this country’s history and tradition, and rejects the arguments from the Trump Administration (and others). Birthright citizenship is here to stay.

Apologies for any disappointment this might cause, but that’s just our honest assessment.