Get ready for a Supreme Court showdown over President Donald Trump’s challenge to birthright citizenship — the idea that all children born in the United States have the same rights, regardless of where their parents came from. Despite what many pundits and even lower-court judges are saying, this is not a slam dunk for the president’s opponents. There are powerful arguments and Supreme Court precedents on both sides.
The case often cited, United States v. Wong Kim Ark (1898), actually supports Trump. The court ruled that the protections and guarantees afforded by the 14th Amendment belong to citizens and noncitizens alike, “so long as they are permitted by the United States to reside here. “
That was 127 years ago.
On Jan. 20, Trump declared, by executive order, that babies born to illegal immigrant mothers, and lacking a father who is a citizen or legal U.S. resident, will no longer automatically receive U.S. citizenship. Starting on Feb. 19, 2025, hospitals would be barred from issuing U.S. birth certificates for these newborns, who number about 250,000 per year.
Trump also took aim at birth tourism, ending automatic citizenship for the 30,000 babies born each year to women who enter the U.S. legally on temporary visas to give birth here.
Some women wade across the Rio Grande, others fly first class, but both claim citizenship for their newborns under the birthright clause of the 14th Amendment.
The clause was originally proposed to guarantee citizenship to children born to former slaves, but during the drafting in 1866, Congress expanded it to children of any race or ethnicity born in the U.S.
At the time, Congress did not debate whether the offspring of people in the country illegally were guaranteed citizenship. There were no immigration laws or illegals in 1866. Even the odious Chinese Exclusion Act wasn’t passed until 1882, and the U.S. didn’t put numerical limits on immigration until 1921.
Yet Trump’s executive order triggered lawsuits by 22 states, the city of San Francisco, and numerous nonprofits. Within days, federal judges were blocking its implementation. Judge John C. Coughenour of the Western District of Washington state called it “blatantly unconstitutional.” Judge Deborah Boardman of Maryland claimed that in the past the Supreme Court has “resoundingly rejected the president’s interpretation” of the 14th Amendment.
These are overstatements. There’s no predicting how the Supreme Court will rule. Only Justice Samuel Alito has expressed a view, stating during his confirmation hearing that birthright citizenship “may turn out to be a complicated question.”
As for precedent, there’s only one Supreme Court ruling on birthright citizenship in the last 160 years. Defenders cite the Ark decision, but in fact, it actually undercuts their argument by specifying that 14th Amendment protections extend to all people who “are permitted by the United States to reside here.”
Justice Horace Gray, writing for the court, supported the decision by citing an earlier Supreme Court ruling — Yick Wo v. Hopkins (1886) — which said the 14th Amendment’s equal protection clause applied to people of all races “who have the right to temporarily or permanently reside within the United States.” Not people here illegally.
These cases do not back up Boardman’s flamboyant claim that the court has “resoundingly rejected” Trump’s interpretation.
Lacking precedent, the justices will likely look to founding principles. Birthright citizenship is a noble idea. Its defenders warn that making children born to illegal immigrants ineligible would produce a subclass of people with fewer rights and threaten American egalitarianism.
But birthright’s critics argue that its abuse makes a mockery of citizenship and turns taxpayers into saps.
Nationwide, nearly 60% of households headed by an illegal immigrant collect federal benefits like the Supplemental Nutrition Assistance Program aid and Medicaid, according to the Center for Immigration Studies. Often a U.S.-born child is the meal ticket making the household eligible.
Illegal border crossings are down 90% since Trump took office. But executive orders are temporary, lasting only as long as the president remains in office.
Regardless of how the court rules, Congress must act. Congress can revise eligibility for welfare benefits and impose stricter time limits, alleviating the cost to taxpayers and reducing incentives to enter the country illegally.
Otherwise, open borders and an extravagant welfare system will deplete this nation under a future presidency — with or without birthright citizenship.
Betsy McCaughey is a former lieutenant governor of New York State and co-founder of Save Our City. Follow her on Twitter @Betsy_McCaughey. To find out more about Betsy McCaughey and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website.
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If I am correct, it is illegal for non-citizens to receive social benefits. This is a federal law. States that give services to illegals can actually lose funding for their state. My wife is now a US citizen and when she came here 25 years ago, she had to sign forms stating that she would not seek social services and must work. Another thing to consider is that there is only so much money in the social service budget and for every illegal immigrant taking money it steals services from our own citizens.
Why should anyone committing an illegal act benefit from breaking the law? From the outset of the country, there was NEVER any intention to allow illegal aliens to come into the U.S., have a baby, and get the benefits of citizenship from a so-called “anchor baby”. We cannot afford all of these illegal aliens “gaming the system” and gaining citizenship.
Common sense is making a come back. Thank you for the fact filled article, Betsy.
I have sent email after email to my “Representatives” asking them to introduce a bill to STOP “Birthright Citizenship” with not one response from the three of them. I guess you can’t fix stu—.
If you break federal law and enter the United States illegally, why should any children you have on our soil become a legal resident? This does not make any sense. Use “common sense” as President Trump has said often!
I pray SCOTUS rules accordingly.
This is going to be an interesting case when it gets to SCOTUS. It sure seems that this will be another “precedent” that goes down in flames. The 14th amendment is quite clear, even with the historical context when it was written, so this really should be a slam dunk. This makes me SOOOOOO glad I voted for Trump in 2016, even though I didn’t like him as a person, I wanted the conservative court back. What I’d like to know is are we going to strip citizenship from those born here without any other citizen family member, ie illegals STILL here. The dreamers are going to lose out completely, so we will have to deal with them. They should all be right about prime military service age now, hmmm?
When a pregnant female comes to the US ILLEGALLY, then that kid she has should be illegal too. Stop making them citizens…they were ‘people’ before they arrived here.
The 14th Amendment never had to deal with birthing tourism and illegal entry.
Trump is right!
A pregnant illegal in our country specifically here to give birth DOES NOT guarantee that her child will automatically become a citizen of the United States. She must be here as a spouse of a legal citizen. That’s the way the law reads and will be interpreted by the Supreme Court.
We should only have jus Sanguinis. I agree that in practice this is not what is happening. But that is wrong and should change. If 2 illegal immigrants were “subject to jurisdiction”, then they would be DEPORTED. Also, we can’t ask them to serve in the military, which doubly proves they are not subject to jurisdiction!
I think the jurisdiction part of the 14th Amendment is key to this issue. Common sense states that the USA can’t shanghai the citizens of other countries simply because they were born in the US, especially if both parents of the child are citizens of another country. That makes no sense and I’m sure the writers of the 14th Amendment didn’t intend for it to be that way either.
Birthright citizenship has been doled out by executive fiat, not because it is required by federal law or the Constitution. Its original meaning, the verbiage in the 14th Amendment, “and subject to the jurisdiction thereof…” refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual. The fact that a tourist or illegal alien is subject to our laws and our courts if they violate our laws does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.
Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.
John Eastman, former dean of the Chapman School of Law, has said, “Many do not seem to understand ‘the distinction between partial, territorial jurisdiction, which subjects all who are present within the territory of a sovereign to the jurisdiction of that sovereign’s laws, and complete political jurisdiction, which requires allegiance to the sovereign as well.’”
Again, it goes against common sense and it’s just plain ridiculous to claim that children born of parents temporarily in the USA, such as students, tourists, or foreign citizens working for a company in the USA, or those who are here illegally, are automatically U.S. citizens: They don’t meet the 14th Amendment’s jurisdictional allegiance obligations. The children of non-citizen parents are, in fact, subject to the political jurisdiction, and allegiance, of the country of their parents. The same applies to children of illegal aliens because children born in the USA to foreign citizens are citizens of their parent’s home country.
Federal law, U.S. immigration law (8 U.S.C. § 1401), simply repeats the language of the 14th Amendment, including the phrase “subject to the jurisdiction thereof.” This further codifies that the children of illegal aliens are NOT American Citizens simply because they were born in the USA.
Like everything else that the Democrats get their greasy little hands on, it gets totally abused!
If you are born in United States, you are a citizen and that is black & white. Quit pushing and badmouthing the Judicial Branch for protecting our Constitution. And what are you going to do with these people & what country does Trump plan on putting on their birth certificate. Use COMMON SENSE…………………….