Below is my column in the Hill on the move of the Trump Administration against birthright citizenship. The Trump Administration believes that this is a fight worth either winning or even losing in the courts. Roughly half of the country oppose birthright citizenship. The key is where those voters are coming from. The minority of voters supporting the right are overwhelmingly coming from the Democratic core that opposed Trump in the last election. In other words, it is an issue appealing to the very margin voters that will be needed in the midterm election. That makes this a perfect wedge issue either as a court fight or, if unsuccessful, a fight for a constitutional amendment.
Here is the column:
This week, the Trump administration doubled down in its fight against birthright citizenship. The usual alliance of pundits, professors and press lined up to declare any challenge to birthright citizenship as absurd. Yet the administration seemed not only undeterred, but delighted.
There is a reason for that euphoria: They believe that they cannot lose this fight.
The legal case against birthright citizenship has always been tough to make, given the long-standing interpretation of the Fourteenth Amendment in federal courts and agencies. Many in academia and the media have shown unusual outrage toward anyone questioning the basis for birthright citizenship as a legal or policy matter.
This is perhaps best evinced by Harvard Law Professor Laurence Tribe’s profane tirade the last time Trump raised this issue years ago: “This f—ing racist wants to reverse the outcome of the Civil War.”
Putting aside that the Civil War was fought over slavery, not immigration, many at the time would have disagreed that this was one of the outcomes of either the Civil War or the Fourteenth Amendment.
The Fourteenth Amendment starts and ends as a model of clarity, stating that “all persons born or naturalized in the United States” are “citizens of the United States and of the state wherein they reside.” However, sandwiched between those two phrases, Congress inserted the words “and subject to the jurisdiction thereof.” Those six words have perplexed many since they were first drafted.
For some, the line must be read as a whole and guarantees that anyone born within the United States becomes an American citizen. For others, the six words cannot be read out of the amendment as superfluous. They argue that this indicates that the parents must be here in a legal status, either as citizens or legal residents.
This division was evident at the very birth of the amendment. Some of those debating the question clearly believed that the amendment did cover anyone born on our soil regardless of the status of the parents. During the debates, Senator Edgar Cowan of Pennsylvania asked: “Is the child of the Chinese immigrant in California a citizen? Is the child born of a Gypsy born in Pennsylvania a citizen?” Senator John Conness of California answered this in the affirmative.
Others indicated the opposite understanding. Senator Jacob Howard, coauthor of the Fourteenth Amendment, said it was “simply declaratory” of the Civil Rights Act to protect freed slaves.
Howard assured senators, “This will not, of course, include persons born in the United States who are foreigners, aliens, or who belong to the families of ambassadors or foreign ministers.” Likewise, Senator Lyman Trumbull, author of the 13th Amendment and the Civil Rights Act and a drafter of the Fourteenth Amendment, said that the six words included only those “not owing allegiance to anyone else.”
This debate has raged for decades. While Democrats today portray anyone supporting the narrower interpretation as a racist or nutty, it was not long ago that many Democratic leaders opposed birthright citizenship, including former Senate Majority Leader Harry Reid (D-Nev.). He later denounced his old position with the same passion.
The Supreme Court itself seemed conflicted in the relatively few cases that touched on this issue. In 1872, in the Slaughterhouse Cases, the court interpreted the words “subject to its jurisdiction” as “intended to exclude from its operation” children of “citizens or subjects of foreign states born within the United States.” A few years later, in Minor v. Happersett, the court unanimously expressed “doubts” that citizenship would apply for “children born within the jurisdiction without reference to the citizenship of their parents.”
Then, in 1884, the Supreme Court handed down Elk v. Wilkins and held that parents must not merely be “subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and not subject to any foreign power” To claim citizenship, they must owe the U.S. “direct and immediate allegiance.”
Supporters of birthright citizenship can cite countervailing authority to support their position. In 1898, the court ruled in U.S. v. Wong Kim Ark that “the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.”
Anti-birthright advocates stress the court’s additional emphasis that the parents had to have “a permanent domicil[e] and residence in the United States, and [be] there carrying on business.”
Yet in 1982, in Plyler v. Doe, the court voted 5-4 that the Fourteenth Amendment required Texas to provide public schooling to the children of illegal immigrants, noting that there is “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
There are strong arguments in favor of the broader interpretation to include birthright citizenship, and the case law favors the conventional interpretation. Indeed, it is not clear whether the Trump administration could secure a majority of the court to adopt the narrower interpretation, including potentially skeptical conservatives such as John Roberts, Brett Kavanaugh and Amy Coney Barrett.
What is clear is that such an interpretation would likely need to be made by the Supreme Court (rather than lower courts) given the existing precedent in favor of birthright citizenship.
So what makes this a win-win proposition for the Trump administration? The politics are stronger than the precedent.
Even if the administration loses before the Supreme Court, it will force Democrats again to fight against a tougher stance on immigration issues. Democrats maintained that position in the last election despite polling showing that 83 percent of Americans support deportations of immigrants with violent criminal records and almost half support mass deportation of all undocumented persons.
On birthright citizenship, roughly half of the country now opposes it, according to a recent Emerson poll. That is consistent with much of the world. The U.S. is actually in the minority on the issue.
Our closest allies in Europe reject birthright citizens and follow the common practice of “jus sanguinis,” or right of blood. We are part of a smaller number of countries following “jus soli,” or right of soil.
That is why the Trump administration may win either way. It will either secure a new interpretation from the high court or it could spur a campaign for a constitutional amendment. All of this could unfold around the time of the midterm elections, when incumbents of the president’s party are generally disfavored. This is a wedge issue that many in the Republican Party might welcome.
Indeed, the most relevant quote from the Civil War period may be that of Gen. Ulysses S. Grant in the final year of the war, when he declared “I propose to fight it out on this line if it takes all summer.” It was a war of attrition, and Grant liked the odds. Some conservatives seem to have the same view of the lay of the land in the fight over birthright citizenship.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”
DJT wife Melania Trump:
She became a citizen of the United States on July 28, 2006. She then sponsored her parents using the “chain migration” immigration process that her husband later repeatedly criticized. Melania and Barron maintain dual citizenship, both in the United States and Slovenia.
So her son Barron is an anchor baby.
No, “anchor baby” refers to a newborn having zero US citizenship by inheritance. Barron inherited his father’s citizenship.
ATS – while I agree with Turley that Trump will likely lose this fight at the supreme court.
I also do not support narrowing birth right citizenship to exclude the tiny problem of the children of illegal immigrants.
This is all much ado about nothing – but as Turley notes it is a winning issue for Trump.
This issue has NOTHING to do with the children of legal immigrants, or the children of parents were atleast one parent is a US citizen.
It is about the citizenship of children whose parents entered the country illegally – who are not legal residents, who are subject to deportation if caught.
# Melanie is naturalized because spouses do not inherit citizenship from husband or wives. Barron was born to both citizen parents and her parents have been sponsored by DJT and Melanie meaning they pay for the Medicare and upkeep of parents without charge to the public. Have her parents naturalized? They’re deceased. It’s hard to do if you’re deceased.
But she’s an American so it’s OK.
Just ask the American Founders through their legislation which persisted for 71 years and was never legislatively abrogated.
_____________________________________________________________________________________________________________________________________
Naturalization Acts of 1790, 1795, 1798, and 1802
United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen…
The wording of the amendment, plus the explanatory statements made by one of the authors of the amendment leave little doubt that Trump is correct and that decades of willful ignorance of that information by left/prog justices through time have set as false a precedent as Roe v Wade and now needs the close constitutional scrutiny that it finally deserves. Of course anchor babies and tourist babies are not allowed automatic American citizenship and this was just another tool of the prog/left to “fundamentally transform” this nation. The average citizen needs become aware of the grift being pulled on us by democrat/progs.
It is without dispute that after the 14A was ratified, the children of all immigrants were citizens by birth. Thus if it was true then it must continue to be true now.
To me, this issue is pretty simple: Children born here to foreign nationals don’t need visas to return to the country of their parents’ citizenship, they are generally recognized as citizens of their parents’ home countries at birth, and admitted after a simple registration process. Therefore, they are not “under the full jurisdiction” of the United States, and they owe at least some allegience to a foreign government, and the 14th doesn’t grant them citizenship.
Note also that children of Native Americans were not automatically citizens until an act of Congress changed that. Pretty hard to find any baby born in the US that would be more entitled to US citizenship than one born to NATIVE AMERICANS.
Further, Wong Kim Ark was an adult who was born and had lived his entire life in the US when the case was argued, meaning that he had virtually no allegiance to China. And, the context of his case was the Chinese Exclusion Act, which carried an exception for children of merchants (among other people), which would have included his domiciled parents who were merchants in a legally-registered business in San Francisco.
As an aside, the US applies conditions for a child born abroad to US citizens to acquire citizenship for the child: At least one parent must have been a resident of the US at some point.
# 😂 At last we get to the Obama birther argument illegitimate president as the child of an Indonesian mother and adopted by an Indonesian stepfather while Kenyan citizen by derivative from his biological father. There’s no extant DNA of his mother’s lineage due to cremation.
He returned to the US before 18 to claim his deceased mother’s original citizenship WITHOUT giving up his Indonesian and Kenyan citizenship via naturalization if he so chose to give them up owing allegiances to 3 nations but in his heart a true American 😂.
Oh brother, a true joke of a case.
Obama’s birth mother grew up a white girl in Wichita KS, a US Citizen. That would be enough to secure him Citizenship by Inheritance. He was born in Hawaii in 1961, a year after Hawaii achieved statehood. So, he met 2 redundant criteria for citizenship. His mom and his time in Indonesia doesn’t affect US Citizenship — US Citizens can live anywhere in the world those countries allows.
# She wasn’t really his mother at all. He was an exchange student from Indonesia. His papers are fraudulent BUT
It’s a first! Triple citizen. Sure. I’ve got some stolen crap 4 sale. I’ll send my ebay account.thanks
Obama must have had “parents,” plural, and a father who were citizens at the time of birth of the candidate.
“THE NATIVES OR NATURAL BORN CITIZENS”
The Law of Nations or the Principles of Natural Law (1758)
Emmerich de Vattel
BOOK 1, CHAPTER 19
§ 212. Citizens and natives.
The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.
_____________________________________________________________________________________________________________
“The Law of Nations “has been continually in the hands of the members of our congress, now sitting,…”
Letter From Benjamin Franklin to Charles-Guillaume-Frédéric Dumas, 9 December 1775
“I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly, that copy which I kept, (after depositing one in our own public library here, and sending the other to the college of Massachusetts Bay, as you directed3) has been continually in the hands of the members of our congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author.”
– Ben Franklin
Blah blah but she gave it up and was under the jurisdiction of Indonesia and Barry became an Indonesian citizen. 😂
It’s a first!
Vattel is irrelevant to the US constitution. There is NO EVIDENCE that many of the delegates at Philadelphia, let alone the delegates at the 13 ratifying conventions, had ever read him. That Franklin gave one copy to the Boston library doesn’t show anything.
George Washington evidently hadn’t read him, since he borrowed the book from the Congressional library AFTER he became president, and never got around to finishing and returning it.
Stanley Dunham never renounced her US citizenship. And she COULDN’T have renounced her son’s citizenship. There is not a shred of evidence that either of them ever became Indonesian citizens, but it wouldn’t matter if they did, because the ONLY way to lose US citizensihp is to voluntarily renounce it, which a child can’t do.
Wong Kim Ark was the child of LEGAL chinese residents who did not become citizens.
His parents Left the US. US law at the time prevented legal residents who returned to china from coming back to the US.
Wong Kim Ark then traveled to China to visit his parents and was denied entry on his return.
The court found he was a citizen – because he was born in the US of Legal US residents.
“THOSE CHILDREN NATURALLY FOLLOW THE CONDITION OF THEIR FATHERS”
“As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent.”
– The Law of Nations or the Principles of Natural Law (1758), BOOK 1, CHAPTER 19, § 212, Emmerich de Vattel
_______________________________________________________________________________________________________________________
“THE LAW OF NATIONS ‘HAS BEEN CONTINUALLY IN THE HANDS OF THE MEMBERS OF OUR CONGRESS, NOW SITTING…”
Letter From Benjamin Franklin to Charles-Guillaume-Frédéric Dumas, 9 December 1775
“I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly, that copy which I kept, (after depositing one in our own public library here, and sending the other to the college of Massachusetts Bay, as you directed3) has been continually in the hands of the members of our congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author.”
– Ben Franklin
Vattel is irrelevant. He had no influence whatsoever on the US constituiton.
The fact that Wong’s parents were legal residents is irrelevant. It’s dicta, because it didn’t affect the decision, which would have been the same had they been here illegally.
# They’ll need their nation of origin passport and visa to return home? Oops
False. Passports etc, are a convenient way to prove citizenship. They are NOT the sole proof.
Most US citizens do not have a passport – they are still citizens.
Are you sure they don’t need a passport visa to return? 😂
Tell me how a court can issue an opinion which changes the rulings of previous courts without a change in the Constitution or the laws??? Ark goes against the lawmakers definition of subject to the jurisdiction and previous SCOTUS rulings….one of those previous rulings included GRAY. In Ark, it says the parents still owe allegiance and are subject to the Chinese Emperor. That excludes Ark as a citizen per the 14th Amendment lawmakers definition AND previous SCOTUS rulings as to the definition of ‘subject to the jurisdiction.’
Ark was an illegal ‘interpretation’ and should be reversed. SCOTUS needs to right this egregious wrong.
In addition, Ark concerned legal residents, not invaders. Invaders have no standing to citizenship.
Courts are to use the law as defined by the law-makers to settle disputes between parties. Courts have zero authority to create a different meaning of the Constitution and our laws.
Wong Kim Ark’s case can teach us some important things about Naturalization and Citizenship by Derivation.
Naturalization – the process by which immigrants and their children obtain US Citizenship
Naturalization by Derivation – minor children automatically become US Citizens on the same day their parents are Naturalized Citizens. If the child was born on US soil, that child becomes a Natural Born Citizen at the time of the parents’ Naturalization
These processes were established by the first Congress in 1790 (Naturalization Act).
WKA’s issue arose because Washington entered into a Treaty with the Chinese Emporer keeping Chinese-Americans as his subjects; Ark’s parents applied for Naturalization (they had more than met the residency requirement), but were turned away. This meant that their son Ark could not receive Naturalization by Derivation, not after age 18, apply on his own behalf.
Up until this 1884 case, Naturalization and Derived Naturalization for children had never been questioned, except in regards to racial preferences and the status of emancipated slaves. There was no intent to change these processes during passage of the 14th Amendment, and they continued as standard practice for another 30 years. This is proof that the 14th Amendment was not intending to modify how immigrants (and their children) became citizens.
WKA’s lawyer needed a basis to argue for his unfair exception to Naturalization Law. The wording of the Citizenship Clause was repurposed (reinterpreted out of historical context) to help WKA win his case.
Very interesting. Thank you.
pbinca some of your facts as well as your intepretation of them is incorrect.
The operative law in the WKA case was not the 1849 treaty with China, but the much later Chinese Exclusionary acts.
These prohibited the naturalization fo chinese legal residents, and required that if they left the US they had to re-app;y for residency to enter.
Numerous cases prior to WKA had found that Chinese born in the US to legal residents were citizens.
WKA is the first appealed to the supreme court.
WKA left the US in 1884 with his parents. Married in China, conceived a son in China and returned to the US – where he was allowed to enter as a US citizen. 4 years later he traveled to China to see his wife and son, conceiving another child in the process and on his return to the US was denied entry challenging his citizenship based on the Chinese exclusionary acts prohibition of the naturalization of Chinese in the US.
WKA was not naturalized – he was a citizen by birth – that is what the 14th amendment says and that was the practice in the US prior to the 14th amendment and constitution.
Regardless, it was the Government that was trying to make new law with WKA.
Even if that was remotely true, you should ask the current Supreme Court this, after overturning Roe and Chevron! haha.
You need a case first. Trump’s EO?…ugh! Poorly written, not even reviewed by a competent lawyer.
Better test case would be Congress passes Citizenship Inheritance Act.
More of this left wing nonsense. Most of Trump’s 2017 EO’s were upheld as they were written by the Supreme court.
Trump and his people have learned alot since then.
The piss poor legal work of the past 4 years has been on the LEFT.
How many SCOTUS decisions have you lost 9-0 ?
The issue with Trump’s EO is not how it is written – it is written quite well, though EO’s are not subject to the same standard of review as laws and regulations. An EO is an order by the president to the executive branch directing them how to impliment law, the constitution or just do their job. So long as it is not unconstitutional, and within the exclusive powers of the president regarding the executive – that is all that is required. If it is in a domain that legitimately involves statutory law, Only then the courts can review it for conformance to that Statute.
EO’s are NOT laws, Nor do they have any power outside the executive.
In the Birth Right Citizenship EO Trump directed that Federal employees for the purposes of administering federal Law are to treat the children of illegal immigrants, born 30 days after the EO was issues as non-citizens.
Because this EO has both constitutional and statutory impacts the courts can review it with respect to conformance to the constitution and to statutory immigration law. There are no statutory law issues with the EO. Congress has not addressed this issue since Wong Kim Ark, and prior to that statutory law actually barred some LEGAL immigrants from citizenship, so you are NOT going to have a statutory problem with this EO.
But it is highly unlikely that SCOTUS is going to find that children born in the US of illegal immigrants are NOT citizens.
However as Turley notes – Trump wins anyway. First because he kept a promise – even it SCOTUS precluded his enforcing it.
And next because the challenges to this will be by democrats.
While I doubt as Turley seems to think that this issue alone will be enough to give Republicans a good midterm.
Every little bit helps.
I am less sure than Turley that Republicans in Congress will look to take this up as either a constitutional amendment or a change in immigration law – while I think a constitutional amendment is necescary – there is enough room in the 14th amendment and the legislative history that SCOTUS could accept limiting citizenship to children born in the US of legal immigrants.
Despite the furor this is NOT a large issue.
SCOTUS is NOT going to overturn Wong Kim Ark – nor should they. That really ONLY leaves the question of the citizenship of the children of illegal immigrants in question.
lgbmiel there is no chance Ark will be reversed and it is irrelevant to this case.
Ark’s parents were LEGAL residents of the US at the time he was born. While they had not become US citizens, they had still chosen to subject themselves to the jurisdiction of the United States, and the US had agreed. That is what being a legal resident means.
The issue Trump is raising is relatively Narrow. It is specifically whether the children born in the US of illegal immigrants a citizens.
That is NOT crystal clear. But I doubt the courts are going to agree with Trump.
Ignoring issues of interpretation – birth right citizenship is actually fairly important to the stability of the country.
Europe has WORSE immigration problems than the US – specifically because it does NOT have birth right citizenship.
This is a nation of immigrants – we WANT LEGAL immigrants. Even Trump supports MORE legal immigration into the US.
Our national identity as a nation of immigrants is part of our culture, our DNA.
Overall this is a small question – there are likely less than 100,000 children born in the US of illegal immigrants in the country today.
While there are 11-21 NEW illegal immigrants in the past year and probably another 15M illegal immigrants from prior to 2021.
It IS crystal clear. Full and complete power of the US government, not owing allegiance to another sovereign, not under the power of another government.
Ark is relevant because that’s what people point to for birthright citizenship for children of invaders. It is not a small question.
I said in my comment that Ark involves legal residents. However, they were still under the authority of the Chinese Emperor. They weren’t under the political power of the US government. They couldn’t vote, couldn’t serve on juries, couldn’t be drafted. That is the full and complete power of the US government. That is the definition of ‘subject to the jurisdiction’ that was ratified — legal and political power.
Two quotes from the 14th Amendment debates:
Sen. Lyman Trumbull: “The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” What do we mean by “complete jurisdiction thereof?” Not owing allegiance to anybody else. That is what it means.”
Sen. Jacob Howard: “[i] concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
Invaders are under legal jurisdiction — EVERYONE in the Country is under the legal power of the US government. To be a citizen, the government must have both legal and political power over a person.
This Country was founded by SETTLERS not immigrants. My ancestor was one of them. I am a DAR. There can’t be immigrants until there is a Country, first.
Immigrants came after the Country was established. Yes, we had huge numbers of immigrants, but never forget, the SETTLERS were here first. Settlers established this Country.
No, birthright citizenship is not important to anything. It’s a violation of the Constitution. Only citizens of the US can bestow US citizenship onto their children.
“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers and succeed to all their rights. “The inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state while they reside there, and they are obliged to defend it… The Venus, 12 U.S. 8 Cranch 253 253 (1814)
“Citizenship is membership in a political society, and implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations, one being a compensation for the other. Luria v. United States, 231 U.S. 9 (1913)
“The persons declared to be citizens are all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.” Elk v Wilkins (1884)
Like lots of others you are off on irrelevant tangents. There is very near ZERO change that SCOTUS is overturning WKA.
That means 90% of your comment above is complete BS.
I would further note that WKA is NOT some standalone decision.
There were numerous federal court decisions exactly like WKA prior – look up Ting Soon as an example.
Nor does this have to do with Treaties. You can not modify the US constitution by treaty. Again that is a meaningless tangent.
Your whole “under the authority of” argument – while relevant completely misunderstands hundreds of years of Anglo statute, common law and US constitution. “under the authority of” specifically refered to Soldiers, and Government employees of foreign powers.
It did NOT refer to non-citizen legal residents who came to the US freely – they are “under the authority of”
the US. If you doubt that commit a crime as a legal or illegal immigrant anywhere in the world and see who arrests you.
Under the authority of – is not about alegiance, it is about jurisdiction. If you are in the US as a legal resident (or illegal one) you are under the authority of the US. If you are in the US as an employee of a foreign power – you are generally not.
This also works in reverse. John McCain was born in Panama of parents who were US citizens – he was still a US citizen at birth.
His father was in Panama with the US Navy.
The tiny hope Trump has with this EO is that SCOTUS will decide that it does matter than these people were here illegally.
WKA makes it clear that if a child is born on US soil of parents in the US legally, they are a NATURAL BORN CITIZEN – they are not “naturalized” – they are as an example eligable to become president.
Overall this is a still a TINY problem. While it is possible – but unlikely that SCOTUS could either reverse WKA or rule that the children of illegal immigrants retractivly do not have birth right citizenship – there is about ZERO chance of that. Half the country would lose their citizenship. There is virtually no chance SCOTUS is taking that big a flier.
So lets Say that SCOTUS is not looking to take away the citizenship of half the country but there are 5 votes to do SOMETHING about this.
The best Route for SCOTUS to take would be to say that “subject to the authority of” is within the power of congress to define.
By making it a statutory and not constitutional issue, that avoids retroactivity problems. But it STILL invalidates Trump’s EO.
I do not see any world in which SCOTUS decides that the president has the power to redefine either statutory or constitutional language differently than hundreds of years of practice and common law.
I said nothing about treaties.
President Trump wants Congress to define ‘subject to the jurisdiction’ as the Framers of the 14th did — they are the lawmakers, they define the law. Courts don’t.
All of my comments have been about how a person legally becomes a citizen by birth.
First, what the Framers said, next court cases before and after the 14th.
A natural born citizen is not one born to legal residents. That is absolutely wrong! Legal residents don’t meet both requirements of the 14th solis and sanguinis. Soil and blood. Their parents are still under the power of their home countries.
A natural born citizen MUST have two citizen parents….otherwise they are dual citizens — excluded from natural born.
Congress can only make laws for naturalization — not natural born.
A wrong court ruling is a wrong court ruling no matter how long it has been in ‘practice.’
Ark was wrong because it changed what the Framers of the 14th said ‘subject to the jurisdiction’ means. Courts can’t change the meaning of the Constitution.
Courts don’t define the law — they are to use the law as the law-makers defined it to decide disputes between parties.
So lets Say that SCOTUS is not looking to take away the citizenship of half the country but there are 5 votes to do SOMETHING about this.
What are you talking about???? This is for the future!!
I’m done with this Mr. Say. The Framers were clear. They are the ones who defined the phrase, not courts.
I won’t respond anymore, please continue to argue against the words of the Framers if you feel you must.
I will close by reposting the quotes from Sens Trumbull and Howard:
Sen. Lyman Trumbull: “The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” What do we mean by “complete jurisdiction thereof?” Not owing allegiance to anybody else. That is what it means.”
Sen. Jacob Howard: “[i] concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say,the same jurisdiction in extent and quality as applies to every citizen of the United States now.
God, it’s amazing how MAGA media gets people like you to fall for their BS.
The elasticity of our constitution is a marvelous thing. Only the most obvious of interpretations survive a constitutional amendment. The rest remain in a perpetual state tug-of-war, driven not by law, but cultural imperatives. However the law settles this issue, it will be the interpretation of our culture that decides how to respond. The current mood of the majority is to repel this illegal immigration virus infecting our country. And if by the midterms, the American people still believe the Democratic party is the “Wuhan Lab” of politics, then this issue might be resolved by amendment after all.
the constitution limits of government power. It is not elastic by design. Actual originalism – and the only logically sound means of constitutional interpretation change the meaning of the constitution by amending it – which is ALWAYS available as an option.
Whether Republicans or Democrats – those trying to increase the power of government or decrease the rights of individuals by broadening the constitutional interpretation are acting immorally.
The moral route to accomplish a purpose that the constitution bars is to amend the constitution.
the constitution limits of government power. It is not elastic by design.
How’s that “non-elasticity” working out for us? Those limits are only effective if actual people take steps to enforce them. Our constitution survives because we still have people that themselves have limits to what they are willing to endure. We don’t get a 2nd Trump presidency without them.
I wouldn’t leave it to Pres. Trump to define Citizenship Reform. Some of us have been working this issue for 30-40 years. We know from watching Australia, Italy, France, UK and Ireland go thru an orderly transition from birthplace citizenship ( jus solis ) to Citizenship Inheritance ( jus sanguinis ). We know from the way Native Americans finally obtained US Citizenship (Congress, 1924) that neither previous laws nor Supreme Court precedents stand in the way of Congress acting on behalf of majority opinion.
And make no mistake. Over 90% of American citizen parents resonate strongly with the idea of passing citizenship along to their infant. 90% find repugnant the marketing of US Citizenships as commodities overseas. And over 65% want to end split immigration status on account of a birth.
All this points in one direction: The Citizenship Inheritance Act of 2025 (change to become effective July 4th 2026), on our 250th birthday. Like this plan?…..call or write your Congressperson this week.
neither previous laws nor Supreme Court precedents stand in the way of Congress acting on behalf of majority opinion.
I answered a comment of yours below, but my only point is that if Scotus says 14A.1 guarantees birthright citizenship, an act of Congress won’t be able to change that. Only a constitutional amendment will. I know you often reference legislation from the 1920s, but that is inapposite because Congress was granting citizenship to a class of persons who did not enjoy constitutionally-guaranteed citizenship. If the Constitution is interpreted to guarantee it, an act of Congress won’t be able to change that, only a constitutional amendment.
We’ll have to disagree on this. Congress clearly has exclusive powers under Article I, Section 8 to tweak pathways to citizenship. By the way, the 14th Amendment as understood in its ratification excluded foreigners getting automatic citizenship — the process for immigrants was Naturalization, and for their children, Naturalization by Derivation. Nothing in the history of debating 14A indicates any intent to reshape Naturalization protocols.
Given Elk v. Wilkins 1884, why wasn’t a Constitutional Amendment needed before Congress could award US Citizenship to Indians? Simple. A case decision, even Supreme Court is not binding in perpetuity, but only until Congress successfully re-legislates on that issue, and that new policy is upheld by the Courts.
What you’re implying — that SCOTUS can take away a power granted exclusively to Congress in Article I by mere case decision (precedent)? Really? Is our country to be run by activist Plaintiffs and Judges?
I also do not like the idea that our country should be run by activist judges. It should not. But what I’m saying is that if Scotus interprets the Constitution to guarantee a certain right, then I don’t see how Congress can take that right away through legislation alone.
To illustrate: Scotus has interpreted 8A to guarantee the right of juvenile offenders to be free from the death penalty. See Roper v. Simmons, 543 U.S. 551 (2005). I’m not saying I agree or disagree with that decision, which is of no relevance: I’m only saying Scotus made that decision. But in light of that decision, Congress cannot subject juvenile offenders to capital punishment through legislation alone. There would have to be a constitutional amendment to that effect.
The point is, once Scotus construes the Constitution to guarantee a certain right or privilege, unless and until that decision is overruled by Scotus, only a constitutional amendment can negate it.
Congress should implement the preferences of the voters into Citizenship Inheritance Law, then let it undergo review by Courts.
I don’t know who would be the “injured party” under a challenge to Citizenship Inheritance! Babies not born yet?…they lack standing as injured parties. Claiming that being born to Brazilian nationality instead of United States nationality is some kind of “injury” — that’s never been argued in any court. Very dubious claim.
To simply give up without trying on behalf of The People? Defeatist, cowardly.
It’s all moot unless and until Scotus rules – and even then, it’s moot unless Scotus expands Wong Kim Ark to apply to babies of illegal immigrants.
Also, I’m not advocating trying or not trying. I’m not disagreeing with you about what Congress might do. I’m just explaining how the law works. Once Scotus construes the Constitution to guarantee a certain right or privilege, unless and until that decision is overruled by Scotus itself, only a constitutional amendment can negate it.
Why am I explaining this? Because you seemed to be implying that Congress had the authority to overturn a constitutional interpretation via legislation alone. All I’m saying is: I respectfully disagree.
We understand the role of the Judiciary differently. Courts decide individual cases, they only interpret the law.
Cases go the SCOTUS to resolve conflicting theories of law interpretation that stymie consistent application of the law. SCOTUS is not a 2nd legislature, where activist plaintiffs go to obtain policy.
It is where they go to redress an injury claimed as a consequence of a law.
If Congress were to pass an orderly phase out of birthplace citizenship, replaced by citizenship inheritance, who would be the “injured party” bringing a court case? Can you claim that being born to Brazilian parents is somehow an injury compared to being born to US parents?
That’s never been argued in any court.
And the injured must have standing…it can’t be babies who will be conceived and born in the future.
The only way this is even an issue, is if Scotus expands Wong Kim Ark to apply to babies of illegal immigrants. In that event, all lower federal courts would be required to affirm the citizenship of such babies, and Scotus would not likely take another case on the topic for years or decades.
As for standing, it’s rarely true that nobody has standing. As soon as Scotus rules – if it rules in the way described above – any child denied the full rights of citizenship would have standing. Their parents could bring a lawsuit (as “next friend” of the child) challenging any contrary action, practice, law, or regulation that would deny them such rights.
It is not an expansion of WKA to apply it to illegal immigrants.
It is a contraction. There is no difference in the meaning of “subject to the jurisdiction of” for legal and illegal immigrants.
Both came here willingly. Both are bound to follow US laws.
Both could be deported for crimes.
I would further note that there is a huge logic problem with the entire challenge here.
It is clear that the 14th amendment meant to enshrine in the constitution – something that had been true through early american history – that some large portion of people become citizens by virtue of being born here.
If you make the default root to citizenship in the US the citizenship of your parents – almost no on in the US would be a citizen.
We have ALL come from somewhere else.There is a reason we call ourselves a nation of immigrants.
Before there was a 14th Amendment the US constitution said the President had to be BORN HERE.
Our founders understood that the foundation of this country was not the status of your parents.
We are equal before government by virtue of our birth.
Trump and Musk are busy touting merit right now – wisely.
The left rants that Trump supporters are racist misogynist homophobic for seeking to achieve Martin Luther Kings dream where we are judged based on or character not the color of our skin.
In the lottery of life some of us are dealt a better hand. It is not fair. It is life. It is reality and you can not change it.
Trying to or swelling in guilty diminishes us all.
“It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages. ”
The world is improved for ALL of us by each of us striving for the best for ourselves.
SCOTUS made the decision based on the Cruel and Unusual punishment clause of the constitution. And the fact that there were few if any executions of juveniles in the 18th and early 19th century.
The nonsense about Adult Crimes and Adult time are MODERN affectations.
While Punishments for ADULTS were usually harsher int he past, They also were SHORTER.
I would suggest looking at the stories of Cole Younger and Frank James – both notorious criminals who served a decade or so at hard labor before being released for crimes that today would get you the death penalty.
Derivative? Yes, that’s there.
Slaves had no US citizenship and did not immigrate?
Might be worthwhile for some eager intern to explore what other countries do about this.
pbinca – you can not end jus solis by legislation – you MUST amend the constitution. The Trump EO addresses a very tiny issue that the courts have NOT addressed directly before – but which we have assumed based on past decisions. It is still a constitutional – not statutory issue.
jus solis is not only in the constitution – we also inherited it from common law – and the constitution REQUIRES us to follow Common law – so this was decided BEFORE the 14th amendment.
The US (and previously the UK) are jus solis with some jus sanguinis extensions. As a rule – jus solis is the default and established by the constitution and is immutable. while jus sanguinis is an extension granted by statute.
In 2000 I beleive unanimously congress passed statute that made the foreign born adopted children of parents who are US citizens citizens too by operation of law. My adopted children do not need to be naturalized. They are not citizens by Jus Solis. and they are not citizens by jus sanguinis and they are not citizens by naturalization. But they absolutely are citizens.
Regardless, you can by statute GRANT citizenship to people not born in the US. But you can NOT by statute take citizenship away from those born in the US. Congress could reverse the 2000 citizenship act that made both of my children citizens. But even doing so would NOT change the fact that they are citizens. The courts have pretty universally found that Citizenship – once granted, by ANY means is near impossible to revoke. DOJ revokes the citizenship of a handful of people each year – these are all naturalized citizens who lied in order to get Citizenship.
The most famous example decades ago was revoking the citizenship of a Nazi prison guard who said he was not a nazi when he applied for citizenship.
Lastly – forgetting the law and the constitution entirely – we see in Europe and other parts of the world how horribly BAD an idea moving away from the primacy of Jus Soli is. Europe has a growing class of non-citizens – many of whom are 2nd and 3rd generations away from their immigrant forefathers. Obliterating Jus Soli severely damages the ties that the children of immigrants have to the country of their birth and strengthens the ties to the country of their parents.
The History of the US demonstrates how improtant immigration is to a rising standard of living.
The economist Julian Simon did extensive work on resources, and particularly human resources.
While his studies are not tied to immigration the FACT is that universally MORE humans is better.
http://www.juliansimon.com/writings/Ultimate_Resource/
Biden’s mismanagement of immigration has proven disasterous.
And created a political firestorm. Throughout US history americans have been infamous as both the most welcoming nation int he world, and dealing with constant backlashes against immigration.
Our best possible immigration policy would be actual “open borders”.
That does not mean anyone who wants can come here and that our border is a seive to drugs and human trafficing.
It means no predefined limits on how many can come to the US legally. It means rejecting criminals, terrorists, the mentally incompetent the unhealthy. It can mean requiring that immigrants must be sponsored and that sponsorship means something. It also can mean that immigrants are not automatically entitled to all the same rights and priviledges as citizens.
But it does mean there are no limits on numbers.
Is that atleast temporarily disruptive – absolutely.
I will note that Trump is NOT going to succeed in deporting more than a fraction of those who came here illegally under Biden.
Further – though in the SHORT run Biden’s immigration polices have created a lot of problems. That on net over the long run – the US will actually benefit – because more people IS better – see Julian Simon. That does not mean that large scale immigration is not without losers.
Just that it is ultimately net positive.
Did Trump blink? Donald holds off on imposing 25% tariffs for Mexico goods.
Hey Moron, Mexico announced they were sending THEIR army to control THEIR border with us. Glad you are always siding with whatever country fights against Americans interest.
Hey hullbobby, morons work in strange ways
Chinese president She wants to meet DJT to avoid the 10% tariffs
No Anon…
Mexico blinked because they let US troops on the border.
Remember the tariffs are being used to negotiate stronger border controls.
The next step… D boys hitting the cartels.
Mexico wants it… but they know the risks of a blood bath in their country as well as potential revolution.
The reality is that the cartels have already attacked US civilians which would give Trump the green light to send in the troops.
If the cartels attack or shoot at any US military personnel, its a terrorist act and US can go in.
Again something Mexico wants, but also knows the risks…
# Once again the US cleans up and pays for another nation’s sh@t? Very clever of Mexico. We’ll keep pushing drugs until you clean it up ? What a 3rd world thug drug pushing nation.
# What’s the time limit on the 10, 000 Mexican soldiers on the border? No info about that? Mexico’s government is the drug cartels and Mexico is a drug pusher by trade in North America. It’s a 3rd world drug pusher writ large.
I don’t know the time period for soldiers. 30 day deployment? Trump is being reasonable in appearance.
To feel good about themselves, many a legislator opted yes on the issue of birthright citizenship, and now that decision is making us pay. It demonstrates that a pure interpretation of the Constitution wins out in the long run.
# They were smarter back then.
Are you sure? 1924 Congress gave Native Americans US Citizenship in defiance of previous interpretation of the 14th Amendment (which excluded Indians). These literal readings (i.e. repurposing) of the 1868 Citizenship Clause can be clarified by The People acting in concert through our Congress. It’s been done, and it can be done again.
Not all Indians were categorized the same way. “Indians not taxed” is the operative phrase here.
How do you equate American Indians to giving citizenship to a person who entered the country with the sole goal of acquiring citizenship for their child and themselves while trying to escape the law? There is no way to equate the two.
Personally, I do not find the Birthright Citizenship issue all that interesting. Because, no matter what I think about it [Which is, that people in the country illegally are not “subject to the jurisdiction” in the meaning contemplated in the 14th Amendment. ] – it will ultimately be SCOTUS that decides the issue.
You’ve been brainwashed to make you voluntarily feel powerless. CONGRESS has the power to clean up Citizenship Law. They did it in 1924, overruling 150 years of previous law and SCOTUS precedents to give Native Americans US citizenship. That law wasn’t even challenged in the courts!
You have the power. You just have to lobby your Congressman and Senators to switch to Citizenship by Inheritance.
Congress may have the power to grant citizenship to a class of persons that did not previously enjoy constitutionally-guaranteed citizenship, but if Scotus rules that kids of illegal immigrants are guaranteed citizenship by 14A.1, then Congress has no power to alter that through legislation alone. Only a constitutional amendment could change it.
That is why I used the word, “ultimately.” Yes, Congress can weigh in to more clearly define “subject to the jurisdiction.” BUT if it does, it will still end up at SCOTUS. IMHO.
# ya, it’s great fun. Leave it to Jasmine Crockett to write an amendment. It’ll say – all bleach blond bad body butches shall lose citizenship. 😏
It’s not a switch
😂
People wrongly think that SCOTUS is the final word. It is not the final word on anything. It is the highest court. It wasn’t delegated any particular or special authority over Constitutionality.
Courts can’t make law, they can hear cases and decide disputes. They are to use the law as defined by the law-makers. They have no authority to invent their own meaning to the Constitution or our laws.
@Floyd…
You’re right that this will end up in front of SCOTUS.
Trump seems think they’ll agree with him. And they may.
What makes it interesting is that we’re in the cheap seats watching.
Now pass the dog and beer from that vendor and hand him this $20.00
(Oh wait they now only take credit cards… my bad.)
-G
Think about it – native Americans were not given citizenship until the 1920s.
Birth alone is not enough. Parents need to be legal residents.
Trump is using an issue that makes all Americans feel uncomfortable. That is a good thing. Birthright citizenship should never existed. Not only will more independents be neutral or support ending it, but some Democrats might also be against birthright citizenship, and that will strip away Democrat support in 2026.
That many Americans were murdered, raped and otherwise mishandled by illegal immigrants will cause many to think twice as to how they vote.
A.I. Anchor Babies
What’s DJT going to do when an AI super computer gives birth to a human in the US?
# You’re not funny. The Bible via Christ predicted this in the words- if you think it you’ve done it. Take another read of the blog about the UK man convicted of his thoughts.
AI or computers track everyone and profile. They provide what you like and don’t like. How do you think the man in the UK was found?
It’s growing worse with the AI programming the people and not vice versa.
The Exec. Order was half-baked. It gave a ridiculous effective date (30 days). States and localities will need at least a year for an orderly transition. It failed to even address some kind of new visa for babies born to visa-holders. The kindest thing you can say is that Trump wants what the majority wants — to end indiscriminate birthplace citizenship.
Under the Constitution, this is for Congress to do (Article I, Section 8). Congress writes citizenship law.
Ditch “birthright citizenship” as the name of the issue — all it does is send people running to their corners.
Citizenship Inheritance is what we want. With this new privilege of parents to confer US Citizenship on their infant, resistance will melt away.
How can children inherit something that their parents don’t have?
Under Citizenship Inheritance, only newborns of US Citizens obtain US Citizenship at birth. All other Citizenship must be obtained by Naturalization.
With all the other (non-citizen) parents, the infant inherits the nationality and US immigration status from the parents.
Newborns to illegal immigrants are born without permission to be in the United States.
Legal immigrants who have completed the 5-year residency obtain their Citizenship by Naturalization in a ceremony. Any minor children become automatically Naturalized on that same day by Derivation. If the child was born on US soil, that child Naturalizes as a Natural Born Citizen (the law since 1790).
It’s not that complicated. The new policy follows logic and common sense.
@pbinca
You do realize that regardless of parents… if you’re born in the US, in a hospital, you’re given a US birth certificate.
I’ll let you and others argue what that implies…
-G
“I’ll let you and others argue what that implies…”
So, now we are to recognize hospitals as the legal authority on citizenship status?
They cannot. That is the well reasoned point that he is making. This change will put an end to the high-risk birthing vacations that wealthy Chinese are taking, to give birth, solely for the purpose of a passport, in Manhattan hotel rooms, or to pregnant mothers swimming across the Rio Grande to give birth in Texas. It is ridiculous and immoral to convey citizenship to an infant whose parent is often unlikely able to legally remain in the country. It has become a booming business for drug cartels to sell this service, thereby enslaving these mothers to years of servitude for repayment. It may sound compassionate to the miss-informed but it is an ugly policy and there is no clearer example, that the Left’s only interest in this is politics.
You are try to play esoteric games with a simple issue. Dems love to have abortion and pot issues on the ballot to bring out their voters and it is about time that we use wedge issues to pound the Dems into the ground.
# No, not half baked. He’s serious. He sees his granddaughter or daughter as Jocelyn Nungaray and laken Riley. He means it.
Tom Homan has had it to the hilt with picking up kidnapped and dead children. Law enforcement can only take so much. It’s vile.
Starting to see why the trump administration regularly skips over you for key posts, Turls. Your logic on this is nuts if not just outright intellectually lacking.
Every time the D’s can make the SCOTUS have to make unconstitutional decisions, and R’s have to spend capital defending those decisions publicly, is a gigantic win for the D’s. The fact you’re willing to walk into this buzz saw face first either calls into doubt your sanity or hints at you working tradecraft for the D’s (which we know is the opposite of the truth).
Love when your not so secret hatred of the Constitution is just so out there in public, Jon.
I have no doubt that Turley has been offered positions in the Trump administrations or federal judiciary. He would be more qualified than many of the other appointments. My guess is Turley turned them down because he has a high paid cushy academic job he does not want to give up.
Trump’s tariff policies are making the stock market drop like a rock. The conservative Wall Street Journal calls it the dumbest trade policy in American history. American consumers are overextended on credit and now will pay Trump’s tariff tax.
Congress has the authority to take over the tariff policy under Article One of the Constitution. Maybe Congress needs to take it their authority back?
When foreign immigrants enter our nation illegally, there should be a stipulation added to the 14 th Amendment that states only children born to parents that are here legally may EARN the status of citizenship.
Simple, maintains the integrity of the Constitution, easy and it stops the abuse of our goodness, and ends chain migration. Mass invasion and chain migration were never considered in the preparation of founding documents.
Why continue the stupidity of splitting status within a family on account of a birth?
Under the new principle of Immigration Status Inheritance, newborns to visa-holders would be issued visa permission paralleling that of the parents. US Citizen parents would pass citizenship to their baby.
Newborns to Permanent Legal Residents would receive a Permanent Visa, and eligibility to become Natural Born Citizens on the same day their parents Naturalize, or if over 18, by taking the Oath of Allegiance.
Let’s get Congress to clean up this mess, by adhering to Inheritance of Status in all cases.
# You must be an honest person because you expect honesty from others.
I’ll only speak sweet niceties to you.
The process for doing that is a constitutional amendment, not an executive order. This is just exhibit 77 of Trump’s belief in in his status as a king.
. . . Trump’s belief in in his status as a king.
That kind of claim is overblown, and frankly, passé. Everyone knows this is an attempt to get the issue before Scotus. Duh!
it should never get that far. Government attorneys should be disbarred for trying to defend something so blatantly unconstitutional. It is against the professional rule of ethical conduct for attorneys.
You don’t know what you’re talking about. First, lawyers can’t be disbarred for making arguments, even a frivolous ones. It’s their job to make arguments, and the court’s job to accept or reject them. Second, it’s not “so blatantly unconstitutional.” That’s lazy, childish talk.
You’re just assuming the validity of your side, that nobody could possibly hold a different view . . . when the whole point is that the constitutional language is unclear and it will be Scotus’s job to decide what it actually means.
This is not true. A lawyer can be disbarred if they file frivolous lawsuits, meaning those with no legal merit.
# Sure, after all the rhetoric and Mayorkas and blackmail, DJT is unafraid.
But if one is a democrat, circumventing the Constitution and abusing our goodness to continue chain migration is a core value of the party, given that they cannot sell their ideas to us, but are willing to add newcomers to the voter roles who’ll buy those ideas in exchange for travel, lodging, food, cell phone, health care, etc. etc. etc. It’s just buying votes in the end. Shameful.
Not one of Mr. Turley’s better posts. Contrary to the straw men he posits, no one contends that birthright citizenship under the Fourteenth Amendment extends to “anyone” born in the United States or that the phrase “subject to the jurisdiction thereof” can be “read out” of the Fourteenth Amendment as “superfluous.” Also contrary to what he says, there is nothing perplexing about this phrase. Its manifest, common-sense meaning and effect is to exclude small classes of persons who are exempt from the authority of the United States—its laws, judicial system, etc.—such as those with diplomatic immunity. Obviously, this does not apply to illegal immigrants. The history of the Amendment and judicial precedents affirm the plain meaning of its words. Hardly any credible legal pundit agrees that this phrase can somehow be twisted into meaning “allegiance to.” Certainly, no self-respecting textualist or originalist would. Turley may be right that Trump can score political points with this, but he will surely continue to lose in court; and the loss of credibility from pushing such frivolous arguments here could well come back to bite Trump and his lawyers in more serious cases.
there is nothing perplexing about this phrase. Its manifest, common-sense meaning and effect is to exclude small classes of persons who are exempt from the authority of the United States—its laws, judicial system, etc.—such as those with diplomatic immunity.
It is not all that “manifest.” The phrase was debated with different opinions about its meaning at the time of the Amendment’s debate and adoption, as Professor Turley explains in detail above. If it only meant to exclude diplomats’ kids and the kids of an army occupying American soil, it could have said so expressly. But the framers settled on a much different phrase – a phrase that must be interpreted. Even you are unable to say with certainty the exact meaning of that phrase, opting to fall back on the flexible term, “such as.” In so doing, you admit the contrary of your argument.
Howard assured senators, “This will not, of course, include persons born in the United States who are foreigners, aliens, or who belong to the families of ambassadors or foreign ministers.”
Sorry, that is NOT what he said. I don’t know where you copied this from, but you inserted an “or” that is simply not there in his words. Whoever put it in to the text you copied it from is a deliberate liar and forger.
Howard said explicitly that the amendment would not include babies who are foreigners, aliens, i.e. those who belong to the families of ambassadors or foreign ministers, but that it would cover all other children born in the USA, even if their parents are foreigners and aliens.
OK, he said that, but global migration was a tiny sliver of what it has become. Every generation of Americans has the power to revise citizenship eligibility law via Congress lawmaking. If you don’t believe me, google how Native Americans finally obtained US Citizenship. Congress in 1924 overruled 150 years of previous law and Supreme Court cases– and the Indian Citizenship Act was NOT challenged in federal court.
Check out Article I, Section 8. We have the power through Congress to pass Citizenship by Inheritance ( jus sanguinis ). It’s not that complicated. Even progressive parents like the idea of passing citizenship to their baby.
Stop calling this reform by the thing being phased out (birthright citizenship). Call it Citizenship Inheritance, and you’ll be amazed at how that co-opts resistance from the left. Adults do politics this way.
Congress in 1924 overruled 150 years of previous law and Supreme Court cases–
No, it didn’t. The law as determined by the constitution and the previous court cases all remained the same. To this day “Indians not taxed” are excluded from the census, and children born with that status are not US citizens. But “Taxed Indians” were ALWAYS counted, and the 14th Amendment ALWAYS made their children citizens.
All Congress did in 1924 was abolish the category of “Indians not taxed”. All Indians must now pay tax, and obey the law; they can be arrested and sued. Therefore, since they are now “Taxed Indians”, they are counted in the census and are citizens from birth, as the constitution ALWAYS said.
Check out Article I, Section 8. We have the power through Congress to pass Citizenship by Inheritance ( jus sanguinis ).
No, we don’t. Congress can make laws granting citizenship to aliens; it cannot make laws taking citizenship away from citizens. A child born in the USA without diplomatic immunity IS a US citizen. The 14th amendment says so. And Congress can’t change that.
https://americanmind.org/features/the-case-against-birthright-citizenship-2/birthright-citizenship-a-response-to-my-critics/
This is where Turley got the inaccurate quote from. It simply shows he did not actually read the legislative history and instead echoed the cherrypicked talking points of the disgraced Claremont institute conservatives.
He also violated the cardinal rule of originalist interpretation by using a 21st century definition of “allegiance” to interpret 19th century legislative history. Allegiance back then was synonymous with jurisdiction, not merely support/patriotism.
Both allegiance and jurisdiction were based on whether one could be sued/tried in criminal court. This is clear from the quotes that the dishonest Claremont tribe (and by extension, Turley, given his penchant to rely on secondary rather than primary sources) leave out.
Turley, do you allow your students to rely on secondary sources when interpreting legislative history?
Your readers expect more. Please issue a full retraction of this article until you do your homework.
Senator Howard also said this during the 1866 Congressional debates:
Sen. Lyman Trumbull: “The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” What do we mean by “complete jurisdiction thereof?” Not owing allegiance to anybody else. That is what it means.”
Sen. Jacob Howard: “[i] concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
In 1873, United States Attorney General George Williams:
“The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment… Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.” (14 Op. Atty-Gen. 300.)
Six years after the 14th Amendment was ratified, on June 22, 1874, Congress issued a joint congressional report, House Report No. 784, which stated:
“The United States have not recognized a double allegiance. By our law a citizen is bound to be ‘true and faithful’ alone to our government.”
I’ve got more…
Becoming an American citizen at one time was a big event for immigrants and their families who sponsored them. Both my parents as accompanied young children sat on Ellis Island before they were allowed entrance to the United States. They went through the process of learning our language, laws and customs, all without government housing, food or prepaid debit cards. They couldn’t wait to stand before the American flag and recite the Pledge of Allegiance to confirm they’re Americans. Today they can’t wait to leave a “safe house” show up at a hospital emergency entrance, have a baby that was conceived in some foreign country, get the best pediatric care (free, paid by American tax dollars) and be declared American citizen by an obscure 1868 Reconstruction Amendment intended for formerly enslaved Americans.
Free ride is over!
Congress to the rescue….The Citizenship Inheritance Act of 2025!
Even those using BlueSky really like the idea of parents passing along US Citizenship to their baby.
It’s an unstoppable idea, and the right policy to nail down for coming decades.
This thing of “jurisdiction” has historical presence. Example, in the 1650s some forty armed militia of MA Bay Colony marched to the Province of Maine to persuade them to submit to MA Bay “jurisdiction.” What followed was three days of tense negotiations concluded only when Maine agreed to submit to MA Bay. Was the effort territorial, or was it to secure the allegiance of inhabitants? It was, most certainly, the latter. But the point is, jurisdiction has always been contractual, in essence if not in fact, a negotiated item, a mutual agreement. In colonial times, followed by a declaratory statement as “an oath of fidelity.” As was residency. Residency typically involved a six month trial period, followed by, an oath of fidelity, in which the newly accepted “resident” agreed to faithfully submit to the jurisdiction. This is not at all true of the undocumented who live outside the law, not only as foreign invaders, but as actual “outlaws.” I don’t know how any can argue that this stipulation does not exist in the Fourteenth, or that its presence holds no purpose, or that any would have argued otherwise in 1868. How do the natural born derive citizenship? Through the citizenship of the parent. Do those born overseas of American parents assume citizenship of the host country, Germany, for example? Of course not. Unless at least one is a citizen of that host country.
Yes. We have had Citizenship by Inheritance since the original Naturalization Law of 1790. It is common sense going back centuries, in that it keeps parents and their children with the same nationality and allegiance.
The botched interpretation of the Citizenship Clause is just that. Giving automatic birthplace citizenship to babies of non-citizen parents was never designed as a policy by anyone (except activist immigrant lawyers, who lack authority to make policy). Look at the way this policy splits status within a family, and permits the repugnant sales of US Citizenships as a commodity overseas!! Who came up with this policy idea? Nobody. It’s a mindless repurposing of language written establishing post-Civil War African-American rights.
The use of the generic word “person” in “persons born in the United States”, instead of the more specific “newborn” or “baby” indicates that there was no specific intent to make foreigner babies into citizens at time of birth. If that were the intent, specific language would have been used.
Congress has the power under Article I Section 8 to clear up these gross policy errors. And if done properly (jus sanguinis as the new law of the land), SCOTUS will be happy to uphold.
Since both of my children were born in Germany while both my husband and I were on active duty, they are considered natural born citizens. Their birth certs were issued by the State Dept. This is the only exception to natural born citizen in our laws and applies to people working for the Dept of State or military service. However, if a person is married to a German (or any other nationality), then the child is subject to Naturalization laws. To be natural born both parents must be US citizens.
Nonsense. Obama had one U. S. citizen parent and was therefore a “natural born” citizen regardless of where he was born or whether that parent worked for the government. Many carelessly conflate the Article 1 qualification for president with 14A1.
Natural born means two citizen parents. If one has only one citizen parent one is a dual citizen. A dual citizen is excluded from Natural Born status.
obama is not a natural born citizen because his father was a British subject at the time — here on, I believe, a student visa.
Dual citizens are not Natural Born citizens.
That is just not true, has never been true, and those who make that claim know it’s not true and are lying.
Dual citizens born here ARE naturally born citizens. Triple citizens, sextuple citizens, it makes no difference. So long as ONE of the citizenships a child was born with is USAn, the child is a natural born citizen.
Another one of your lies, milly.
I’ve posted numerous quotes from the Founders, the Framers of the 14th Amendment, and SCOTUS cases stating exactly what a Natural Born Citizen is.
Dual citizens are NOT Natural Born Citizens. Someone who has a foreign allegiance can NEVER be a Natural Born Citizen.
John Jay’s July 25, 1787 letter to Washington:
“Permit me to hint, whether it would not be wise & Seasonable to provide a strong check to the admission of Foreigners into the Administration of our national Government, and to declare expressly that the Command in Chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen.”
In fact, Jay suggested that all federal civil offices be held by natural born citizens, but that suggestion was withdrawn.
The Founders wouldn’t have made the distinction between Natural Born Citizen for president and VP, and citizen for senate and house in the Constitution if that wasn’t the case — if there was not a difference between the two.
Just stop your lies, cause you are lying about the Founders, the 14th Amendment Framers, and several SCOTUS cases.