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Posted on 04/20/2026 12:48:02 PM PDT by Bruce Campbells Chin
The future of President Donald Trump’s executive order attempting to limit access to birthright citizenship is now positioned for a final decision from the Supreme Court. Questioning from the justices...suggests an icy reception for the Justice Department’s claim that the constitutional guarantee of citizenship turns on an innovative interpretation of the legal concept known as “domicile.”
***
Trump’s executive order...claims that the 14th Amendment grants U.S. citizenship to children born in the United States depending on the citizenship or immigration status of their parents. The amendment’s citizenship clause provides that a person becomes a citizen “of the United States and the state wherein they reside” if they are born in the United States and are “subject to the jurisdiction thereof.”
To successfully defend the constitutionality of Trump’s order, U.S. Solicitor General D. John Sauer will have to convince a majority of justices on three fronts. First, that “subject to the jurisdiction thereof” means a person is “domiciled” in the United States. Second, that domicile should be interpreted to require legal permission to live in the United States indefinitely as a permanent resident, the most privileged form of immigration status, rather than temporarily or altogether without the federal government’s permission. Third, that children born in the United States acquire citizenship at birth only if their mother was domiciled in the country at the time of the child’s birth.
The text of the citizenship clause does not use the term domicile, but the Trump administration argues that it is implied. Sauer, who is the federal government’s lead attorney before the Supreme Court, argued that “reside,” which does appear in the citizenship clause (in terms of state citizenship), “means domicile in the Constitution.” For children to acquire U.S. citizenship at birth, the constitutional provision “presupposes domicile,” he told the justices.
(Excerpt) Read more at scotusblog.com ...
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Sounds like Trump got his lawyers from watching late night TV commercials. Unfortunately we are stuck with a very commie, progressive as they were called back then, 14th amendment that was questionably ratified antebellum. The purpose was to create a kingdom class of citizenship that never existed and thus give us civil rights — not the original God given ones. Once the courts, gov, or any one says they give out the rights it is all over. Civil rights do not coexist with God given ones.
Two wongs don’t make a white? /horrendus pun>
Some could argue due to the original texts that should read subject “of” the jurisdiction thereof. But I’m not a Constitutional scholar.
“. . . State wherein they reside” does not mean the citizenship is based on where they reside (domiciled).
When the 14th Amendment was debated, states of the Confederacy were taking the position that, OK, you can makes Negro slaves American citizens, but we aren’t going to let them be considered citizens of our states - no voting rights, no benefits, etc.
That’s why that clause is there. It’s not a requirement, it’s a directive to southern states (run by democrats, who then initiated things like poll taxes and tests to keep negroes from voting.)
The relevant language we are discussing in the context of the 14th Amendment applies to newborn babies who clearly have not yet formed any attachment or loyalty to any nation. Nothing in the 14th mentions parentage at all.
Yes, it is horrendous. But magnificent nonetheless.
Indoctrination.
I have no argument with this. I daresay some of the Supreme Court Justices are going to be reading through Wong Kim Ark again.
T., You are supposing Dred Scott was rightly decided. This was never the Republican position. However, Dred Scott was a Supreme Court decision and the Republicans needed a constitutional amendment to eradicate it.
So, regardless of whether Dred Scott was rightly decided, the 14th Amendment wanted to make it clear that, as of the ratification of the amendment, Americans of African descent were citizens. The constitutional question is whether this amendment, perhaps inadvertently, grants birthright citizenship to yet other people.
The Supreme Court, in Wong Kim Ark, decided that children born here of permanent resident aliens were indeed subject to the jurisdiction of here and, so, they had birthright citizenship.
But, the Supreme Court has never ruled whether children born here to aliens legally here as tourists have birthright citizenship, nor has the Supreme Court ruled whether children born here to aliens illegally here have birthright citizenship. Whether these categories of people have birthright citizenship would seem to depend on what is the meaning of subject to the jurisdiction? Whatever it means, permanent aliens have it; but, do temporary aliens and do illegal aliens have it?
Finally, I will note that the Trump administration is asking for the decision to be prospective only.
Luckily Scalia isn't the only originalist to have ever existed.
I suppose the trouble is, everybody is an originalist when it comes to the terms of their medical insurance. I just wish people treated their Constitution with so much reverence. The medical insurance you have is the medical insurance you discussed/read/agreed to at the time, not the new interpretation they're trying to force on you.
The 14th Amendment is absolutely no different.
"Yes they are. But they also are subject to the jurisdiction of the American government if they are within the United States."
No.
Being present is not enough of a hurdle to become a citizen/naturalized. Nobody believes that just standing in a country is a pathway to citizenship.
And Grok's answers are not for legal weight, they're to help us understand that yes, we as Americans did in fact know what this meant without so much consternation.
The schools did this to us. The media did this to us. That paved the way for the judges to do this to us. The progressives did this to us. We've been robbed.
It was not accidental.
You are correct.
And they said pretty much the very thing at the debates when they created 14A.
Legally, it's a trickier argument to make than some are realizing. A lot of people are arguing for the "subject to the jurisdiction thereof" approach, and advocate looking to whether or not the parents are citizens/subjects of a foreign country. The problem with this approach is that it would also exclude the children of legal resident aliens, which would run headlong into more than a century of that being accepted and completely non-controversial. Plus, perhaps political suicide.
My guess is that the SG was trying to get around the issue of saying that the children of legal aliens should not get citizenship, and that's why he focused on "reside" and "domiciled".
Yes, but I think his reasons for minimizing the importance of so-called "legislative history", particularly when interpreting the Constitution, are completely valid.
Still. Americans did once upon a time know what these phrases meant. Progressives indoctrinate because indoctrination affirmatively works.
"Not knowing" is more of a new-ish phenomena.
yes indeed.
if anyone wants to introduce and decide the case based on a magic word that isn’t even in the constitution.... when the real wording and history thereof are very clear and well-known....
let them introduce a real magic word instead of a dul, ill-defined, and irrelevant one like “domicile”
how about, say, Kltpzyxm! Straight from the 5th dimension
then they can decide the case any da**ed way they want, totally ignoring the US Constitution and all of the very careful political history and discussions of our Founding Fathers
perhaps “birthright citizenship can be combined with “absentee voting” to enable foreigners to give USA citizenship to new babies without their mamas having to even make the journey over the “border”
like, set up a World Wide Web webpage and let anyone, any citizens of any countries on earth, bestow instant American citizenship on their babies right there at home in Krapistan or Uganda or Communist China. No fuss, no bother, just type in the little kid’s name and click the Enter button. Oh yeah, add the entire family’s names too since they can piggyback on the baby’s instant American citizenship.
why the H3LL not, if the court is inclined to trash the US Constitution with fake standards based on “foreign” and totally unnecessary vocabulary
President Trump is incorrect.
There was a large group of US manumitted blacks ("Free Blacks") that had children. Manumitted blacks were not slaves, but were not citizens. So that's one category besides slaves.
Then there's free blacks that immigrated to the US, many from Haiti after the slave revolts. Sometimes called "free people of color", they also were not slaves, but were not citizens. That was another group that were not slaves.
Then there's children born of male slaves and free (or indentured) white women. Called "mulattos" at the time, they were also not slaves but not citizens. In this latter group, because the children were the descendants of African slaves on the father's side, they could not be considered US citizens once Dred Scott v. Sandford. So a third group that were not slaves.
All three groups had children, yet were not considered slaves under Federal law. All three groups had children that would become citizens immediately after the ratification of the 14th Amendment.
Nonsense.
It's all about the illegal alien who gave birth. Even Wong was decided on the grounds of the parent, not the child.
It's all about the conditions that brought the parent to give birth here that determines jurisdiction.
-PJ
Another good point.
American citizens weren't indoctrinated. That's what the weasly politicians hoped you to be. Somebody claimed the 14th amendment provided birthright citizenship for illegals, kept repeating the lie over and over again, and gutless Republicans said "Okay."
Two points:
If the Court gets a constitutional question wrong and then defers to that error indefinitely because of reliance, it has effectively transferred the Article V amendment power to the judiciary without going through the state ratification process.
What you call "run headlong into more than a century of that being accepted" I call relying wrongly on dicta from Wong's paragraph 93, which has no force of law, when paragraph 118 is the controlling ruling. We can't allow the Constitution to be de facto amended by simply ignoring law for a sufficient amount of time and then calling it "settled."
The governed never consented to this expansive interpretation of birthright citizenship, as there are no statutes via legislation or Supreme Court rulings that have stated this, or constitutional amendments that proposed this. Those are the normal means of consent of the governed. The tools of government that the people consented to via ratification of the Constitution were not the means where birthright citizenship for all and natural born citizen for all was determined.
Those interpretations evolved extraconstitutionally through the accretion process described in Janus: each successive actor pointing to the prior actor's behavior as authority, until the chain of reliance became long enough to be called "settled law" whether by the Court treating its own dicta as law, or by political actors treating those rulings as broader than they were.
The governed did not ratify universal birthright citizenship. They did not ratify natural born citizenship for the children of temporary visa holders or illegal entrants. Those outcomes were imposed on them, not chosen by them.
-PJ
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