Posted on 01/23/2025 8:20:35 PM PST by SeekAndFind
Within days of taking office, President Donald Trump signed an executive order that has been misconstrued by most of the talking heads out there as "ending birthright citizenship." This characterization uses an overly broad brush to paint over what is actually an extremely nuanced issue with regard to the interpretation of citizenship in the 14th Amendment.
Section 1 of the amendment starts off with one of the most consequential lines of any of the Reconstruction Amendments passed in the wake of the Civil War: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
What Trump's executive order does is limit the interpretation of that line in the legal sense. In the order, Trump directs the government not to legally (through documentation, etc.) recognize the citizenship of anyone "(1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth."
In other words, if the parents are not in the United States legally, then the child is not automatically granted citizenship.
The executive order was immediately challenged in court in several states, with groups like the ACLU latching themselves onto the cause, and the Trump administration has already lost in at least one federal court. The judge in that case strongly rebuked Trump's actions.
"I’ve been on the bench for over four decades," Senior U.S. District Judge John C. Coughenour said. "I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order."
Coughenour (probably) has a point. The president cannot unilaterally reinterpret an amendment, especially on a question that the Supreme Court had previously settled. But the Trump administration isn't seeking to just unilaterally change things. It appears his team wants to take this all the way back to the Supreme Court.
But why?
The Supreme Court answered the question of birthright citizenship in the late 1800s, in United States v. Wong Kim Ark. Wong Kim Ark was born to parents who were legal residents, though not U.S. citizens, living in San Fransisco at the time. The family left America, though Wong came back and was denied entry into the country.
He sued, claiming he was a citizen, and the case went before the Court. Here is what they found:
The question comes down to one particular phrase in the amendment: "subject to the jurisdiction thereof." The Court interpreted it, like most do, to mean that everyone born in the U.S. was automatically "subject to the jurisdiction thereof," making them legal citizens. Some legal scholars, who agree with the Trump administration, argue that it means only those who are "subject to the jurisdiction thereof" (meaning those whose families are legally in the United States) are recognized as citizens.
The Trump administration could push this ahead, fighting to keep the issue alive all the way to the Supreme Court, forcing the current Court to re-evaluate what the previous Court ruled.
There are really two ways that the change to our interpretation of birthright citizenship can happen. The first is through an act of Congress, which will probably never happen. The second is to get the Supreme Court to amend or overturn its previous ruling, which is difficult but not impossible.
There are two objectives here:
If the Trump administration can convince the Justices to narrowly re-define the legal interpretation of the 14th Amendment, then his executive order will, in fact, have worked - even if the process by which he got there skirted the lines of constitutionality in the first place.
Trump's problem is that he has essentially, two years to get things done. The midterm elections could result in Democrats retaking the House or Senate, and if that is the case, then he loses the opportunity to get much more of his agenda accomplished. Getting Congress to devote time to birthright citizenship takes away from his ability to get other things done, so he has to take the long way around - through the courts, that is.
He certainly could pull it off. He has just the right Supreme Court makeup to have a chance. The originalists on the Court will undoubtedly take a look at the fact that the original intent of the 14th Amendment was to apply to people legally in the U.S. (a fact that is in the congressional record, if you go and read up on what the authors of the amendment were discussing at the time). But it's still a tall order.
In all honesty, I'm not convinced it's the battle we should have right now. There are more immediate and critical needs in the fight to fix the immigration issue than to tackle birthright citizenship. However, it is something he promised, and he wants to deliver on it.
It's one of those long-game plans. This will have very little impact in the near future, but could work long-term to dissuade birth tourism in the U.S. For immigration hawks, it's a vital piece of the strategy to reshape how America controls its borders and protects its citizenry.
The Supremes if they hear this case will just point to Wong and leave it as it always has been. The oonly proper way to change the 14th amendment is with another amendment. Just like prohibition it can be done if 38 states get on board via an article V convention. Congress will never send to the States such an amendment so it will have to be an article V convention.
In all honesty, I’m not convinced it's the battle we should have right now …Then you’ve surrendered to the left, Joe. Or maybe you were on their side the whole time?
I saw that in a video but had no source. Thanks for posting.
You’re welcome.
I found that screen cap on X and after following a couple of trails, found the source link.
There was another screen cap that was good but I never found the source for it.
Most people don't know that.
It was drafted in 1866 for the recently-freed slaves.
Two wrongs don’t make a right.
Hear, Hear! Well stated.
The left will do anything to slow down the immigration sunami and connecting this EO to the immmigrstion effort is seen as a win for team commie.
For everything he does, Trump should follow up his swift EOs with legislation within the next 12 months to cement his actions.
Otherwise, all gets undone with the next administration.
I imagine multiple cases would be consolidated in a single circuit.
In interpreting Kim, the left ignores the jurisdiction clause. It cannot merely be a redundant way of saying the first part, born on US soil. It has to mean something in addition to where one is born. Historically, we know it was not meant to apply to aliens who just happen to be here at an opportune time.
Why is this a given?
The 14th gives the right to children of parents legally here. We’re talking now about people illegally here. The question needs to be answered, clearly. What we are doing now is stupid.
Very true
I can't imagine that happening. It doesn't meet the criteria for MDL because it isn't factually or even legally complex, and there's no other mechanism for that to happen.
Really, it's no different than a ton of other constitutional issues that bubble up through the various circuits.
You go by the text, using the ordinary meaning of the words as they would have been understood at the time.
The issue is the exact same which is the prerequisite element for consolidation.
“Subject to the jurisdiction thereof” would refer to diplomats and others with immunity from U.S. law, because those individuals were tied most directly to their own governments when overseas in a way ordinary people weren’t.
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