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Trump Is Right About Birthright Citizenship: He isn’t rewriting the 14th Amendment; he’s applying the law as it is, based on its plain language and the Supreme Court’s existing precedent.
The Federalist ^ | 01/24/2025 | Matthew Raymer

Posted on 01/24/2025 7:44:13 PM PST by SeekAndFind

If you were wondering how long it would take for Democrats to sue the Trump administration, we have an answer. With the ink barely dry, eighteen Democrat state attorneys general, four additional Democrat state AGs, and a collection of outside groups led by the American Civil Liberties Union all filed federal lawsuits over President Donald Trump’s executive order ending birthright citizenship for the children of illegal immigrants. Their argument, that the U.S. Supreme Court has already ruled that the 14th Amendment guarantees birthright citizenship for practically anyone born here, is flatly wrong as a matter of law. The courts should use this opportunity to get it right.

The 14th Amendment — ratified after the Civil War and ensuring that former slaves were U.S. citizens — provides that “[a]ll 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.” The plaintiffs focus on the first part, but barely glance at the second, arguing that, with few exceptions (such as the children of foreign diplomats in the United States), anyone born in the United States is “subject to its jurisdiction,” simply by virtue of being within its borders.

They do this by relying almost entirely on United States v. Wong Kim Ark, an 1898 U.S. Supreme Court opinion that the plaintiffs get hopelessly wrong. In Wong, the court held that a man born in San Francisco to Chinese immigrants was a U.S. citizen under the 14th Amendment. Omitting some key facts, the plaintiffs argue this means that all children born in the United States of all immigrant parents, with the aforementioned very rare exceptions, automatically are U.S. citizens. Even a cursory read of the opinion, however, shows that the Supreme Court ruled nothing of the sort.

Wong was born in California and lived his entire life in the United States, until he took two trips to China to visit family as an adult. The first time he returned to the United States, he was admitted through customs as a U.S. citizen. A few years later, after visiting China a second time, he was denied reentry after a customs official concluded that he was not a citizen, because his parents were not U.S. citizens when he was born here.

SCOTUS sided with Wong, but for a very important reason the plaintiffs fail to mention: Wong’s parents were legal immigrants to the United States. The entire foundation of the plaintiffs’ argument — that SCOTUS has already upheld birthright citizenship for the children of illegal immigrants by this decision — is therefore completely and obviously wrong.

In rendering its opinion, SCOTUS dove deep into the meaning of “subject to the jurisdiction thereof.” What they found, tracing back hundreds of years through English common law, is that the phrase is rooted in a mutual relationship of “allegiance and protection” between the individual and the sovereign (historically a king, but the nation here). Children “born in the allegiance,” and therefore citizens entitled to “protection” at birth, included children born to subjects of the king, as well as children born to “aliens in amity” — that is, aliens lawfully “domiciled” there with the king’s consent. Notably, the court found that this did not extend to the children of aliens in “hostile occupation of part of our territory.”

Consent is the operative word. In ruling for Wong, the Supreme Court made clear that the United States has a say in who is subject to its jurisdiction, noting that noncitizens like Wong’s parents are “entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here” (emphasis added).

In Wong’s case, this meant that the 14th Amendment granted him citizenship because he was: (1) born in the United States; and (2) subject to its jurisdiction, due to the fact that his parents were lawful immigrants permitted by the United States to reside here at the time he was born.

In clear and distinguishable contrast, children born to illegal immigrants are not “subject to the jurisdiction” of the United States, and therefore are not entitled to birthright citizenship under the 14th Amendment, for the simple reason that the United States has not permitted them to be here. In other words, the relationship is not mutual.

A harder question is whether the 14th Amendment grants birthright citizenship to children born to aliens here lawfully but on a temporary basis, such as tourists or individuals on a work visa. Wong Kim Ark doesn’t explicitly address this, but it does note that Wong’s parents were “domiciled” in the United States, and it concludes that “[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States” (emphasis added). This repeated reference to “domicile,” meaning a state of permanent, legal residence, suggests that birthright citizenship at a minimum requires an intent to live lawfully and permanently in the United States, even if that intent later changes.

In their lawsuit, the 18 Democrat state AGs declare that the president “has no authority to rewrite or nullify a constitutional amendment or duly enacted statute.” (Where were they a week ago, when President Biden tried to ratify a new, 28th Amendment by personal fiat?) But Trump isn’t rewriting the 14th Amendment; he’s applying the law as it is, based on its plain language and the Supreme Court’s existing precedent. That, at least, shouldn’t be controversial.


Matthew Raymer is a former chief counsel at the Republican National Committee and a recent resident fellow at the Harvard Kennedy School’s Institute of Politics.


TOPICS: Constitution/Conservatism; Culture/Society; Front Page News; Government; News/Current Events; Politics/Elections
KEYWORDS: 14thamendment; anchorbabies; birthright; citizenship; fourteenthamendment; illegals; scotus
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1 posted on 01/24/2025 7:44:13 PM PST by SeekAndFind
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To: SeekAndFind

In before the dueling court case citations.


2 posted on 01/24/2025 7:45:03 PM PST by E. Pluribus Unum (The worst thing about censorship is █████ ██ ████ ████ ████ █ ███████ ████. FJB.)
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To: SeekAndFind
From my post on another thread:

excluding Indians not taxed,
If we understand that to have meant the Native Americans, which would include those of Central and South America, isn't that an unconstitutional racist distinction prohibited by the Fifth and Fourteenth Amendments to the U.S. Constitution? Those precedents prohibiting discrimination based on race weren't quite fully developed at the time of the Wong case. If this statutory distinction stands, then citizenship by birth can be denied to Native Americans coming from south of the border, but not Africans, Asians or Europeans. Furthermore, what is the difference between Native Americans who don't pay taxes to Uncle Sam and illegal aliens working off the books and not paying taxes? Curious how you will explain the distinction between the two.
3 posted on 01/24/2025 7:49:00 PM PST by Dr. Franklin ("A republic, if you can keep it." )
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To: SeekAndFind

bkmk


4 posted on 01/24/2025 7:51:05 PM PST by logi_cal869 (-cynicus the "concern troll" a/o 10/03/2018 /!i!! &@$%&*(@ -)
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To: SeekAndFind

Good article.

Birth tourists are here legally. It’s a different argument than illegals.

I still think the tourist visa are not subject to US jurisdiction because being subject to laws is not the same as being under a county’s jurisdiction.

But I’m not a constitutional scholar. I assume Trump’s lawyers will be able to make a good argument.


5 posted on 01/24/2025 7:53:33 PM PST by ifinnegan (Democrats kill babies and harvest their organs to sell)
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To: ifinnegan

“Tourists” are “domiciled” - they haven’t (legally)moved here to live permanently. They’re visiting.


6 posted on 01/24/2025 8:04:02 PM PST by castlebrew (Gun Control means hitting here you're aiming!))
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To: SeekAndFind
"Wong’s parents were legal immigrants to the United States. The entire foundation of the plaintiffs’ argument."

My father came here to the U.S. legally with his parents and two brothers from Holland in 1913. In May of 1913, my grandfather filed a petition of intent to become a U.S. Citizen. He had to affirm that "It is my bonafide intention to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly so Wilhelmina, Queen of the Netherlands." He also had to swear: "I am not an anarchist; I am not a polygamist nor a believer in the practice of polygamy; and it is my intention in good faith to become a citizen of the United States of America and to permanently reside therein SO HELP ME God"

On the 20th day of May, 1920, his Petition for Naturalization was submitted via the form distributed by the U.S. Department of Labor, Naturalization Service, and was confirmed and signed by the Clerk of the Supreme Court of Wayne County, New York the same day. This Petition for Naturalization required him to make the same affirmations at he made in the Petition of Intention, and sign it as well.

According to records, the three sons, one being my father, became naturalized citizens at the same time my grandfather did. My grandmother died in 1919, so wasn't included in the Petition for Naturalization.

In the 1893 Supreme Court decision of United States v. Wong Kim Ark, had his/her parents become naturalized citizens, he/she would have automatically become a citizen once his/her parents did. As well, Wong Kim Ark had the legal right to apply for citizenship once they reached the age of 18, even if his/her parents didn't.

As far as I know, when they come here, no illegal alien is forced to sign a Petition of Intention, or sign an affidavit renouncing their allegiance to the country they just came from. Therefore, they are not entitled to the same Constitutional privileges as American citizens, as they are still subjects of the government and laws of the country they came from.

7 posted on 01/24/2025 8:04:24 PM PST by mass55th (“Courage is being scared to death, but saddling up anyway.” ― John Wayne)
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To: ifinnegan

“BIRTH TOURISTS” ARE coming to the USA for one reason & ONLY ONE reason. They are seeking dual citizenship for babies who, when grown, can demand & access better education changes.

There may be other nefarious reasons, as yet unknown.

They do not work here—they do not pay taxes here.

They are VISITORS.

NONE of this “BABIES are citizens” is structured as such in any other country that I know of.


8 posted on 01/24/2025 8:13:57 PM PST by ridesthemiles (not giving up on TRUMP---EVER)
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Comment #9 Removed by Moderator

To: Dr. Franklin

“If we understand that to have meant the Native Americans, which would include those of Central and South America, “

Strange logic. Wrong, but strange.


10 posted on 01/24/2025 8:18:26 PM PST by TexasGator (111''!11)
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To: SeekAndFind
EXACTLY!!


11 posted on 01/24/2025 8:21:41 PM PST by Dick Bachert (=)
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To: Dr. Franklin

“...isn’t that an unconstitutional racist distinction...”

Yes because the term isn’t a racial distiction. It is a geological determination. The term native American wasn’t even in existance and widely used until the 1960’s, over 170 years sing the ratification of our Constitution. And when it is used it is a changing of our language to denote the current disignation of arriving European civilization. But then it has to be proven that the people here when that happened had no connection to the invading group. And that hasn’t been proven either as migration has been identified and they don’t know the etent of it.

So if the term is a latter day excuse to try to phylum people then it failed miserably. According to the dictionary, native is defined as a person born in a specified place or associated with a place by birth, whether subsequently resident there or not. American is defined as a person born to the north, central, or south american designated countries. Everything else is politicially motivated...a purposefull use of words used to create inclusion.

I was born here, served the US more half my life, and I will die here as an American. My background is Irish, English, and Scottish arriving on our spoils in the 1800’a. My wife is one eighth Cherokee out of a tribe in Oklahoma. We were both born here. So we are both Americans.

The plain language of the 14th Amendment makes clear that “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. It doesn’t remark on the citizenship of the parents, or how long they were on American soil, just the event of the birth was on an American reservation.

I spent my early life in the San Joaquin valley of California and witnessed this situation. It was politically and financially motivated. But like many things in our history, it’s called a loophole. And until congress writes and ratifies another amendment to take 14 out, it is the law of the land. And don’t hold your breath as that takes a 2/3 majority of both houses. It won’t happen in this congress.

wy69


12 posted on 01/24/2025 8:22:57 PM PST by whitney69
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>> In clear and distinguishable contrast, children born to illegal immigrants are not “subject to the jurisdiction” of the United States

well then, that would be the kill-shot, wouldn’t it


13 posted on 01/24/2025 8:27:56 PM PST by Gene Eric
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To: SeekAndFind

While I’d prefer citizenship to babies of citizen parents only, I can grudgingly accept legal resident or birth tourism if it means the end of illegal aliens anchor babies.


14 posted on 01/24/2025 8:36:43 PM PST by CapandBall
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To: mass55th
The argument that anybody that stumbles across the border and squirts out a kid has produced a US citizen is absurd. If that were the case, why then would the specification, "subject to the jurisdiction theteof" have been made? Aliens are illegal and not citizens and not party to any agreement making them subject to jurisdiction and no, throwing them out does not make them having been subject to jurisdiction. An illegal aliens only right is to be treated morally right. They have no other right. To say otherwise makes citizenship worthless and irrelevant.

Surely this will be a quick ruling in favor of Trump.

15 posted on 01/24/2025 8:37:37 PM PST by Sequoyah101 (Donald John Trump. First man to be Elected to the Presidency THREE times since FDR.)
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To: SeekAndFind
Omitting some key facts, the plaintiffs argue this means that all children born in the United States of all immigrant parents, with the aforementioned very rare exceptions, automatically are U.S. citizens.

Here is an anectdote to show how this was intrepreted in the 1990s: During one of the Cuban boatlifts, refugees who were planning to illegally come to the US were rescued at sea. Among those rescued onboard the US Coast Guard ship were pregnant women who were having sex on the deck of the ship, so that labor might be induced so their baby would be born on the ship (US territory) and therefore automatically be a US citizen anchor baby. Now, how insane is that?

16 posted on 01/24/2025 8:43:34 PM PST by The_Media_never_lie ( @whoisourPresident)
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To: SeekAndFind

subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.>>> The only way these people, babies, etc, are to be citizens is to become subject to the jurisdiction. They would have to surrender as illegal aliens to the nearest federal agency and proceed to legalize themselves.


17 posted on 01/24/2025 8:48:19 PM PST by kvanbrunt2
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To: Dick Bachert

Senator Howard is no help.


18 posted on 01/24/2025 8:48:28 PM PST by Sequoyah101 (Donald John Trump. First man to be Elected to the Presidency THREE times since FDR.)
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To: whitney69

Read the quote from Jacob Howard, author of the 14th right above your post.


19 posted on 01/24/2025 8:49:46 PM PST by Inyo-Mono
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To: E. Pluribus Unum

Bookmark


20 posted on 01/24/2025 8:52:40 PM PST by Loud Mime ("The Real Constitution" on Amazon. We are not right wing - we are constitutional centrists.)
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