Of all of President Donald Trump’s plans to secure the U.S.-Mexico border and reform America’s broken immigration system, his push to end birthright citizenship has emerged as the most controversial – even to some on the right. But what are the facts behind the outrage when it comes to the historical and legal basis for birthright citizenship?
The idea that someone is an American citizen purely by virtue of his mother being physically present in the United States at the time of his birth has been widely accepted, both in the legal community and by the public more broadly, for well over 100 years. Defenders of birthright citizenship point to the 14th Amendment, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
On the surface, that indeed seems relatively clear-cut: anyone born in the United States is a citizen. But the authors of the 14th Amendment also included a qualifying clause – subject to the jurisdiction thereof – that creates nuance. What exactly does “jurisdiction” mean?
To answer this question, it is important to understand the historical context of the 14th Amendment. It was ratified in 1868 in the wake of the Civil War for the specific purpose of granting citizenship to freed slaves, overturning the Supreme Court’s 1857 Dred Scott v. Sanford decision.
At the time, the question of whether the 14th Amendment applied to children of illegal aliens was hardly top of mind for courts or lawmakers – with the American West largely unsettled and borders still fuzzy, the very concept of illegal immigration was relatively new.
Nonetheless, the generally accepted idea has been that “jurisdiction” simply means subject to American laws – a definition which would mean the children of illegal aliens are American citizens.
However, as Michael Anton noted in a 2018 op-ed for The Washington Post, “Sen. Jacob Howard of Michigan, a sponsor of the [jurisdiction] clause, further clarified that the amendment explicitly excludes from citizenship ‘persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.’”
In other words, there is at the very least serious doubt – if not outright affirmative evidence to the contrary – as to whether the authors of the 14th Amendment intended for it to grant birthright citizenship to the children of illegal aliens.
Birthright citizenship proponents counter that the Supreme Court has already decided this question in the 1898 case United States v. Wong Kim Ark. Ark, born in the United States, was the son of Chinese immigrants who never became American citizens but, importantly, were legal residents of the United States.
In 1895, Ark traveled to China. Upon his return to the United States, he was detained by immigration authorities, who claimed that he was not a U.S. citizen. In a 6-2 decision, the Court ruled in Ark’s favor, holding that the 14th Amendment indeed conferred U.S. citizenship on him by birthright.
But as Anton again notes, “the Court has ruled only that children of legal residents are citizens. That doesn’t change the status of children born to people living here illegally.”
Regardless, the question will likely end up in the Supreme Court again. A federal district judge has already blocked Trump’s executive order ending birthright citizenship, calling it “blatantly unconstitutional.” The Trump administration is sure to challenge that ruling.
Trump’s order affirms specifically that U.S. government agencies will no longer recognize the citizenship of anyone whose “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 whose “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.”
Importantly, Trump’s order also only applies to individuals born in the United States 30 days after the order takes effect.
The practicality of Trump’s order is obvious. Birthright citizenship is an enormous magnet for illegal immigration. So-called “birth tourism,” where expectant mothers travel to the United States for the express purpose of giving birth here, has also become a major problem. But regardless of its effectiveness at combatting illegal immigration, whether the order can hold up in court is a different question entirely.
From here one can only speculate how the Supreme Court will rule. Businessman and lawyer Bill King pointed out in an explainer for RealClearPolitics that “the Supreme Court would not have to overtly overrule Ark to uphold Congress’ authority to redefine the limits of birthright citizenship.”
However, he continues “even if recognizing that Congress has the authority to define the ‘subject to the jurisdiction’ clause required overruling Ark, the current Court has shown little reluctance to overturn long-standing precedent.” Freedom Center Fellow Davor Horowitz has also noted that the personal ideological persuasions of the justices could come into play, writing somewhat wryly, “If you think Neil [Gorsuch] or Amy [Coney Barrett] are going to vote to eliminate birthright citizenship, well, good luck with that.”
Yet, the current makeup of the Court has on occasion shown a willingness to supersede precedents in favor of a more originalist interpretation of the Constitution. In 2022, the 6-3 majority handed down Dobbs v. Jackson repealing Roe v. Wade, to the shock of many. It also struck down Chevron Deference last year.
In light of these decisions, it may well be that the Court is ready to revisit the supposedly “constitutional” right of birthright citizenship as well.
Andrew Shirley is a veteran speechwriter and AMAC Newsline columnist. His commentary can be found on X at @AA_Shirley.
I, for one, hope we are successful in rejecting ‘birthright’ citizenship. The author states that it has been widely accepted for 100 years, but it has never made sense. Citizenship in the wake of an illegal act to come here in the first place? Why? Who benefits besides the baby?…and then when we want to send the parents back to their own country, they claim we are ‘breaking up families’. Come here legally, apply for citizenship for the whole family.
Good luck President Trump! Illegals, including their underaged children need to be banned from automatically receiving citizenship. Deport them with their illegal parents.
Isn’t it funny how those who would love to burn the constitution if they could reach for it when it suits and use it as a shield. There is a difference between the legal resident and an illegal alien or someone just passing through.
I find it more concerning that some are more concerned with the rights of criminals than they are with the rights of legal citizens. Do you think that the illegals in these situations have read and found these loopholes to subvert the law ? If the “Anchor Babies” are awarded citizenship, does that also award citizenship to the parents, grandparents, siblings on and on? Send’em all back citing in deference to the good of the family.
An honest reading of the 14th amendment and a understanding of how it came to he installed in the constitution in 1868. It was necessary because no the freedom of the slaves and the fact that southern democrats did not want you themvto have citizenship. Some things never change.
Seems unlikely that the Supreme Court would clear up any ambiguity in the 14th Amendment based upon their review of an Executive Order.
While amending the Constitution would be unlikely to pass in either the House or Senate with the required 2/3 majority vote, perhaps a standard bill passed by a simple majority would entice the Supreme Court to weigh in.
Hopefully, if not outright defeated, the Amendment will at least receive clarification and that will solve problems like “maternity tourism” and non-citizens bearing children who magicly become citizens.
Before, the invasion of the last four years, I could understand a person/woman applying for citizenship, while expecting a child, could mistakenly think her child would be an automatic citizen, and she by virtue of being its mom, could fit the “chain migration” practice, although I do not think thats in the law. What a mess and what a time for the Supreme Court to step in and read the words, Subject to the jurisdiction thereof. Illegal aliens are not “Subject to any of our benefits, Please, courts, now is the time to earn your keep, IMO
Someone should read the whole amendment. AmerInds not taxed were excluded from citizenship. In fact, we were generally not U. S. citizens until 1924. Look it up if you don’t believe me. Anyway, last time that I checked we were here before the rest of y’all. And if birthright citizenship is the law, why was the Indian citizenship act of 1924 necessary?
I agree that “birthright citizenship” has been overused and abused. I know in El Paso, TX, the mothers from Mexico DO come across the bridge there, and deliver their babies in the hospitals there. And the babies get “citizenship” – and the system is overwhelmed and burdened with all these illegal people pouring into our country, or “dropping in” to deliver a baby as their “get-in-free” card. This major scam has been on-going for decades, and it’s past time it was stopped.
Dimocraps don’t understand our Constitution and will do anything to destroy America’s laws. If an illegal alien has a baby on American soil, that does not make it a citizen, it is just another illegal alien. We’ve had four years under Bidumb telling us up is down and right is wrong Now it’s time to get back to common sense and proper nouns and nothing is free. You have to work for what you want.
I believe it is wrong and I hope the Supreme Court rules the same way.
Just because “birthright citizenship“ has been generally accepted for 100 years doesn’t make it right. Even with a slim conservative majority in SCOTUS, I fear it will rule against President Trump.
When in the Boeder Patrol Academy in Georgia, this question was visited in the classroom. It was of the opinion of the instructors that illegal aliens were not under the jurisdiction of the United States because, well, they are illegal. This extends to their children as well. But it was also their opinion is that it would take the Supreme Court to nail it down securely, and until then, follow USBP Policy.
I don’t know of a single American who supports this stupid Birthright Citizenship! It must be eliminated for it doesn’t enhance the USA in any way
Birthright citizenship is not for those that come here Illegally, and it needs to be addressed as such.
January 29, 2025
Amicus Brief on Ending Birthright Citizenship & Restoring Anti-Poverty Programs
Dear Speaker Johnson and Senate President Thune,
I am writing to formally submit the attached Amicus Brief advocating for the end of birthright citizenship for children of illegal immigrants, in alignment with the original intent of the 13th, 14th, and 15th Amendments. This brief is being shared with you, as well as key congressional committees and officials, for immediate distribution and review.
I have included President Donald J. Trump, Attorney General Pam Bondi, the U.S. Department of Justice, the U.S. Treasury Secretary, and state leaders such as Secretary of State Marco Rubio and Governor Ron DeSantis ensure full awareness and legal examination of these critical constitutional and legislative matters.
The 14th Amendment was established to secure citizenship for former slaves and their descendants—not to extend automatic citizenship to children of individuals who have entered the United States unlawfully. As affirmed by Congressman Thaddeus Stevens, Secretary of State William Seward, and Senator Jacob Howard, the Citizenship Clause was a direct remedy to the denial of rights to freed slaves, not a blanket provision for unrestricted birthright citizenship. Any attempt to legislate this principle away through a Birthright Citizenship Act contradicts the constitutional amendment process, which requires a formal amendment, not mere statutory revision.
Additionally, I urge Congress to restore and enforce the Emancipation Proclamation as originally signed into law by President Abraham Lincoln. Furthermore, I call for the immediate reinstatement of the programs founded by Mary L. Hill under Public Laws 88-452, 92-424, 93-644, and 95-558, which established national anti-poverty initiatives through the Economic Opportunity Program (EOPI). These programs, vital to the well-being of low-income Americans, were unlawfully dismantled by congressional members in the late 1970s and 1980s. Their restoration is not just a legislative necessity but a moral obligation to uphold the promises made to generations of disadvantaged citizens.
Given the financial implications of these policy decisions, I am also formally requesting an investigation by the House and Senate Oversight Committees into the federal funds once allocated to these programs. The U.S. Treasury Department should audit and disclose the financial mismanagement that led to their defunding, ensuring that funds meant to uplift communities were not unlawfully redirected.
Furthermore, I urge immediate attention to potential violations of 18 U.S.C. § 241 (Conspiracy Against Rights) and 18 U.S.C. § 242 (Deprivation of Rights Under Color of Law). Any individuals or government officials who have acted to dismantle or obstruct these programs may be in violation of federal law. Those responsible must be held accountable to restore justice and ensure that constitutional and legislative protections are upheld.
I urge you to uphold the constitutional principles enshrined by our nation’s founders and take immediate action to reinstate these vital programs and protect the integrity of U.S. citizenship laws.
Thank you for your time and consideration. I look forward to your response and your leadership in addressing these critical issues.
Sincerely,
Rubin Young
Former President, Blacks Organizing Leadership Development (BOLD)
Email: [email protected]
Phone: 786-847-9111
Mrs. Mary Lee Hill
Founder & CEO, EOPI, New Daycare Human Services
National Regional Community Service Administration Director (Public Laws 88-452, 92-424, 93-644, 95-568)
Phone: (305) 758-9752
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1/24/25
The Honorable John C. Coughenour
United States District Judge
William Kenzo Nakamura Federal Courthouse
1051 Sixth Avenue
Seattle, Washington 98104
Dear Judge Coughenour,
I respectfully write to express my concerns regarding judicial actions that, in my view, challenge the constitutional authority of executive orders issued by a duly elected president of the United States, Donald J. Trump.
The Constitution grants the President authority under Article II to issue executive orders, ensuring the laws of the United States are faithfully executed. This power, reinforced by precedent, is vital to maintaining the separation of powers and the independence of the executive branch. Judicial interference with executive discretion may risk violating constitutional principles, including the Supremacy Clause and the separation of powers doctrine.
Historical Context and Legislative Intent:
The 14th Am, ratified in 1868, was crafted to address the injustices of slavery by granting citizenship to freed slaves and their descendants. The legislative intent at the time, as articulated by figures like Secretary of State William Seward, was to ensure equal citizenship for individuals previously subjected to systemic oppression.
However, subsequent interpretations of the 14th Am, have expanded its scope, often beyond the framers’ intent. For instance, the decision in the United States v. Wong Kim Ark (1898) established the principle of jus soli (citizenship by birth) but left unresolved tensions regarding its application in broader contexts, such as immigration and national identity.
It is critical to revisit the legislative intentions and historical context of the Reconstruction Amendments. The debates and writings of that era clarify that the 14th Am was not intended to create universal birthright citizenship for all individuals born within U.S. borders but rather to address the specific plight of former slaves and their descendants.
Constitutional Authority of the President:
Under Article II, the President has the authority to issue executive orders to direct federal agencies under his administration. This authority has been upheld in cases such as Mississippi v. Johnson (1867), which affirmed that federal courts lack jurisdiction to enjoin the president from carrying out discretionary executive duties.
Additionally, the judiciary’s role is limited to reviewing the constitutionality of executive actions—not to legislate or block such actions. The principle of judicial review, established in Marbury v. Madison (1803), does not permit inferior courts to override the President’s constitutional prerogative arbitrarily.
Concerns About Judicial Overreach:
While judicial review serves as a necessary check on executive authority, subordinate courts must operate within their jurisdiction and respect the boundaries established by the Constitution. As reinforced in Youngstown Sheet & Tube Co. v. Sawyer (1952), the judiciary’s role is to interpret the law, not to assume legislative or executive functions.
Your decisions in cases involving executive orders should reflect this balance, ensuring that judicial actions do not undermine the President’s constitutional authority. Any attempts by inferior courts to block the implementation of executive orders should be subject to appellate review and ultimately resolved by the Supreme Court, the final arbiter of constitutional questions.
The separation of powers is a cornerstone of our constitutional framework. While judicial oversight is essential, it must be exercised with respect for the autonomy of the executive branch. I urge this Court to consider the historical context of the 14th Am, the constitutional boundaries of executive authority, and the principles of judicial restraint in its decisions.
“Injustice Anywhere Is A Threat to Justice Everywhere”. Dr. Martin Luther King Jr.
Thank you for your attention and consideration.
@PamBondi
@realDonaldTrump
@USAttorneys
@AlinaHabba
@DOJNatSec
The fact that no other country in the WORLD allows this is very telling. It certainly seems rather obvious that the founders were not thinking of hoards of baby tourists when they passed this amendment. The timing and discussion of slave children is obvious. There may be arguments on both sides, but that comma and inclusion of the “subject to the jurisdiction thereof” is pretty hard to argue against. History allowing this does NOT make it right.
I wonder if that couldn’t affect all of us. I know none of our families originated here. I know if I trace my family back we came from England. However, I have family that were in government here. I hope there are guidelines put in effect. I don’t think it should be legal for a pregnant woman to come over and give birth and claim citizenship. There are a lot of things to to look at here. It sure isn’t cut and dried.