An Expansive Attack on Birthright Citizenship

Trying to upend 150 years of legal understanding with the stroke of a sharpie.

As promised, Trump is attempting to substantially change how citizenship works in the United States and is doing so expansively, almost entirely shifting us from a legal order that focuses on place of birth to one focused on one based on blood.

Here is a key passage from the Executive Order that was issued.

Sec. 2.  Policy.  (a)  It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons:  (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.

(b)  Subsection (a) of this section shall apply only to persons who are born within the United States after 30 days from the date of this order.

Now, I will remind everyone what the 14th Amendment says: “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.”

The text is plain and the issue of jurisdiction is dealing with things like the children of ambassadors, a group of people who are literally not “subject to the jurisdiction” of the US. Moreover, the practice of birthright citizenship was in place before the amendment was passed, so it is an affirmation of pre-existing reality and was explicitly stated to clarify the status of ex-slaves.

The EO asserts that the kinds of people listed in the excerpt above fall into the category of not subject to the jurisdiction of the United States. Exactly how this should work is baffling, as it suggests that the undocumented have the equivalence of diplomatic immunity (so, let The Purge: Immigrant Style commence!). And it strains logic and legality to suggest that, say, a person with an H1B visa is not subject to the jurisdiction of the United States? Moreover, how is an H1B different than a green card in terms of legal jurisdiction?

The reality is that the words are clear and their legal understanding and application have been in concert with those words for most of American history. The Supreme Court has acknowledged the plain and obvious meaning of the phrase, and did so in 1898! I detail all of this in a previous post: The Birthright Citizenship Debate.

The president cannot change the meaning of the US Constitution by fiat (on the day he swore to uphold it, I would note).

Of course, the reality is this: the EO will end up in court and it will almost certainly be ruled on by SCOTUS. In any other era of US politics I would assume that the Court would do the obvious: uphold the plain text as reinforced by a century and a half of practice that reinforced said text. However, I am not at all certain how the now ideolog-populated Supreme Court will behave.

I thought that Trump might try to simply equate illegal immigration with an “invasion” and try and treat such persons as part of an invading army, which the 14th Amendment is seen not to apply to. I find such an interpretation incorrect and strains the meaning of words. But, given the nature of the Court, it seems a more fruitful line of attack (even if still one that contradicts 150+ years of understanding).

To try and require parents to have not just legal status, but very specific legal status (see the bolded portion above) is to try and almost entirely upend jus soli and shift it to jus sanguinis.

I will also note what I have noted before: Trump is wrong to assert that the US is alone in granting birthright citizenship.

I have written on this topic, and why I think birthright citizenship is good for the United States here:

FILED UNDER: Borders and Immigration, Supreme Court, The Presidency, US Constitution, US Politics, , , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a retired Professor of Political Science and former College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Not the IT Dept. says:

    While I don’t think Trump is the brightest bulb in the chandelier and that what he does know is pretty much limited to business practices in NYC, he does possess a certain amount of cunning. He’s also got more sophisticated political staff this time around. So while he wants the EO to stand, if SCOTUS rules against it, he can initiate Plan B, shrug his shoulders and say to MAGA-land, “Hey I tried. Damn judges stopped me. Need more real American judges in courts across the country.” His cultees won’t blame him for the loss.

    11
  2. charontwo says:

    I do not think he is right, but Steve M. is skeptical of SCOTUS on this:

    NMMNB

    OF COURSE THE SUPREME COURT WILL THROW OUT BIRTHRIGHT CITIZENSHIP

    https://bsky.app/profile/did:plc:fvzkql2aqtbk7qmqjkoo2lv2/post/3lg6qvo4zus2b

    I would caution people to stop relying on the Constitution as written to have any meaning other than what the people Trump put on the Supreme Court says it means.

    “He can’t do that” is not a useful response to the things he’s going to do. The correct response is “Will the Court uphold that?”

    Now all the FedSoc lower-court judges and Supreme Court justices need is a professional-sounding argument from anyone anywhere in the right-wing legal establishment that calls this seemingly settled law into question. And here it is — a 2018 blog post at the Heritage Foundation site (“Originally published by Fox News in 2011”) titled “Birthright Citizenship: A Fundamental Misunderstanding of the 14th Amendment.”

    Critics erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike.

    But that is not what that qualifying phrase means. Its original meaning 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.

    This amendment’s language was derived from the 1866 Civil Rights Act, which provided that “[a]ll persons born in the United States, and not subject to any foreign power” would be considered citizens.

    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.

    As 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.”

    (That would be the same John Eastman who was indicted in Georgia and Arizona for his help in trying to overturn the results of the 2020 presidential election.)

    The author of this piece is Hans von Spakovsky, who’s been at this for a long time: … Von Spakovsky and Eastman are partisan hacks, which means their arguments, or arguments similar to theirs, will be treated as the work of disinterested scholars who seek nothing but pure Truth.

    So I’m calling it now: This case will reach the Supreme Court and the Court will rule in Trump’s favor. Established law? Roe was established law. Chevron deference was established law. Sections 4(b) and 5 of the Voting Rights Act were established law. Leonard Leo’s minions don’t care.

    10
  3. charontwo says:

    @charontwo:

    Links referenced in the NMMNB piece above:

    2018 blog post Heritage Foundation

    Hans von Spakovsky (Guardian)

    2
  4. Bobert says:

    @charontwo:
    I’ve been having a similar discussion on stack exchange. The dissent in the 1898 decision was (basically) that jurisdiction was intended to be COMPLETE jurisdiction. In other words a person who is a citizen of another country is not under complete jurisdiction of the US.

    If that interpretation is upheld, that would bring into question the status of those who hold dual citizenship. Potentially those persons would fall into the same dark hole that Trump is seeking in his EO.

    BTW, has Musk renounced his South African citizenship?

    5
  5. Rob1 says:

    (b) Subsection (a) of this section shall apply only to persons who are born within the United States after 30 days from the date of this order.

    Yeah, I was wondering how this would work out for the rest of the 99.9%. Good news! We’re “grandfathered” in even if our grandfather’s weren’t!

    Tangentially, it is being reported that Trump’s immigration policy will have a negative effect on our population growth. This runs counter to boy-genius and DOGE empresario Musk’s obsession with growing the population. (He’s certainly done his part!)

    Given that the cost of living will only continue to inflate, housing costs seem locked, job protections and wage guarantees are off the table, and prohibitively expensive advanced education is no longer a passport, what remedies does Sir Musk propose? Perhaps a steep discount on Teslas that can serve both as shelter and employment as we attempt to shuttle each other to and fro in our gig economy? I’m certain he knows that “special someone” who can provide government subsidy for his brain squalls.

    2
  6. inhumans99 says:

    I disagree that the 14th is toast, as this is not like Roe V Wade or Chevron deference, of which neither are actually enshrined in the Constitution. The 14th is an amendment just like the 2nd, it is not going anywhere unless what, three quarters of U.S. States and three quarters of both chambers of Congress agree to get along to go along.

    I believe Trump did a great job scaring folks with this EO, but I feel it will fail big time when it is brought before the Supremes.

    This EO if it were allowed to stand would set the table for Democrats to eventually gut or remove the 2nd amendment from the Constitution, all those overwrought statements from MAGA/GOP folks about Democrats wanting to come to your residence to take away your guns, if Trump’s Birthright EO stands those statement might not seem so overwrought after all. Something that should give folks like Fortune, JKB, Bandit, Drew, etc. (you know who you are, lol) pause.

    Not to mention this really does less than nothing to noticeably fix the issue with illegal immigrants crossing our borders. Unless there is a hoard of pregnant and ready to pop women flowing over our borders, this declaration that we need to end Birthright Citizenship because illegals are flooding our country with even more illegal immigrants is just as overwrought as the statement that Democrats want to take away your guns.

    3
  7. Kathy says:

    The next newborn child with a definite political allegiance will be the first.

    4
  8. @inhumans99: If I have to make a bet, I am betting that the Court upholds the existing interpretation of the clause.

    What I meant to note in the OP is that it is not a happy thought that there is a non-zero chance that a 5-4 decision could re-interpret the clause. Or that even if it is upheld, I suspect it will not be a unanimous decision. These observations speak to the nature of our time.

    4
  9. steve says:

    Very much agree on the SCOTUS. They are really politicians in robes. They will find some writings from the 1700s which will kind of, sort of support what they want to do anyway and then ignore how the law was actually practiced in those days and ignore any other writing by other contemporaries they dont like.

    Steve

    5
  10. Daryl says:

    Article V clearly spells out the steps required to Amend the Constitution.
    Changing the “plain text” and established precedent of the 14th and substantially changing how citizenship works is clearly Amending the Constitution by Executive Order.
    There is no doubt this corrupt SCOTUS will gladly do so.
    I’m only pointing out the very dangerous expansion of EO authority this opens.
    No longer is a sharpie limited to changing the course of hurricanes.

    3
  11. inhumans99 says:

    @Steven L. Taylor:

    Agreed, that all, and I mean all, not just a majority of Supreme Court Justices will not simply laugh (and quite loudly at that) the person who tries to argue that Trumps Birthright EO should stand out of the room is depressing enough of a thought that I will need to try and put it out of my mind.

    3
  12. Bobert says:

    @charontwo:
    Can Spakovsky explain why did the 14th A (as adopted) use the phrase “and subject to the jurisdiction thereof, ” replacing what he thinks should have been “and not subject to any foreign power”.
    Both seem to be perfectly adequate phrases.
    But for some reason, that Spakovsky only knows, it was replaced. Maybe there was a reason.

    1
  13. Bobert says:

    @Rob1:

    Good news! We’re “grandfathered” in even if our grandfather’s weren’t!

    Whoa, not so fast, Bucko
    Should SCOTUS decide that the qualifying phrase in the 14th really means “and not subject to any foreign power” – would invalidate the citizenship of any person who holds dual citizenship. Approximately 6.8 million US citizens.

    2
  14. Jen says:

    @Bobert: That is a potential interpretation, but would only apply going forward, I would think, as there’s a specific prohibition on ex post facto laws (article I section 9)–but, if any of our legal eagles care to chime in about the difference between passing a law and a court ruling, I’m happy to learn more.

    1
  15. Rob1 says:

    @Bobert: Okay, that lowers the “protected” to 96.9% more or less.

    The bigots have to limit their interpretations because some of their own numbers end up on thin ice.

  16. Jim Brown 32 says:

    @inhumans99: This is key–a perfect whisper campaign would be– this is a test case for a future revoke of the 2nd Amendment by a Dem POTUS.

    4
  17. Tony W says:

    Perhaps we can ask Mr. Trump what the compelling state interest is here?

    Does he believe, from personal, Drumpf-family experience, that immigrants are coming here to have babies?

    2
  18. Daryl says:

    @inhumans99:

    This EO if it were allowed to stand would set the table for Democrats to eventually gut or remove the 2nd amendment from the Constitution

    A quaint idea, but I fail to see how Democrats ever hold significant office, again. When a key advisor to the POTUS can throw a Nazi salute on national TV and get away with it, Democracy is over. Yes, America and the Allies did defeat the Nazi’s before. Unlike the 40’s, today the danger is from within…there is no one that is going to come and save Democracy. Certainly not this SCOTUS.

    3
  19. Jim Brown 32 says:

    @Bobert: Gawd–the Podcasts are writing themselves. Why is $Trump running a test case for EO invalidation of the 2nd Amendment?

    Why is he kicking 7 MILLION dual citizens off the voter rolls–many of whom voted for $Trump? These questions have to be asked! [Queue video of blue eyed, blonde hair “wrong wing” voter reacting to the possibility they’ll lose citizenship and the ability to vote.]

    4
  20. Hal_10000 says:

    I smell an Eastman at the heart of this. This interpretation would mean that Kamala Harris is not a citizen, which is one of the things the Eastman wing of MAGA was very keen on.

    5
  21. Bobert says:

    @Jen:

    I’m happy to learn more.

    As am I
    My off-the-cuff reaction is that a new law that attempts to impose penalty or duty retroactively is ex-post facto.
    In a court ruling the duty of the court is not to ‘pronounce a new law, but to maintain and expound the old one. The law may be the same but the application of the law may change with the expounding.
    If the court were to find that “under the jurisdiction thereof” was fundamentally mistaken understood, that could jeopardize (for example voters or passport holders) continuing assertion of their US citizenship.
    IANAL
    BTW, I haven’t heard from Beth lately, hope she’s alright. (maybe bummed or angry, but alright)

    2
  22. Jim Brown 32 says:

    @Jim Brown 32: Please keep in mind, my $Trumper secretary has shown me a youtube video in her feed of a brown central American man wearing rolexes and goal chain–supposedly giving instructions to other migrants inhow to come to America and lie to the government and social service providers to get free rent and money for rolexes and chains. The video is in Spanish with English cc captions and the guy regularly mentions how stupid Americans are to let him come here and get rich.

    This is how these people play the game and why non-cable news watchers have no attention span for health care of governance. If I were my secretary, I would have also been livid. Most people don’t have a clue how all-encompassing the world of influence and psyops are today. It’s hard for them to believe how much money and psychology goes into keeping her flaming mad everyday.

    And yes, she’s a childless cat lady who hates corporate gouging and animal abuse. She thinks the GOP is against those things as well. One of her good friends at work is another Black lady (Kamala voter obviously) but she hates Kamala and thinks she dumb as a box of rocks. She’s self aware enough to conceal her full $Trumpy with potential Dem supporter, i.e Black People

    But how do I know what she really thinks? Im her favorite Boss ever accordingto her. $Trumpers love JB 32 and JB 32 doesn’t judge. Mostly because I know most of these people are no psychological match for today’s information environment. They really aren’t. The research and techniques available make most people a snowball on a radiation. This includes the elementary techniques used by Dems and Centrists with their supporters.

    Shorter point, time to up the game to destroy $tump’s credibility.

    6
  23. @Daryl: The reality is, however, that SCOTUS has the constitutional power to reinterpret the plain words on the page.

    They could reinterpret the jurisdictional question.

  24. Daryl says:

    @Steven L. Taylor:
    Sure. We’ve seen them do pretzel logic before. This isn’t even a high difficulty score.
    But the fact is that changing the 14th from location dependent to DNA dependent is tantamount to rewriting the Amendment.
    Again, I have no doubt they will do it. Or pretty much anything else Leonard Leo wants them to do.
    Democracy is over. We’re just waiting for the obituary to be written.

    1
  25. Kathy says:

    Originalism is the doctrine that the law means what originalists want it to mean.

    Going by original menaing, as murky as that is, there were two main classes of people residing in the US who were not under the jurisdiction thereof: diplomats, and native peoples living under self rule (the latter isn’t as good as it sounds). Further, in the case of native Americans, there is a lot of jurisprudence about it. See article I section 2 on the census, where “Indians not taxed” are excluded from the count and from representation in Congress.

    The phrase even gets repeated in the 14th amendment, section 2: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

    I’m not a historian or a lawyer, but I’ve read plenty of concurring opinions from both over the past few years.

    Further, the first section of the 14th also includes people naturalized in the US. Naturalization is the process by which someone of one nationality acquires another nationality.

    Now, how many people were involved in writing this amendment, who contributed to what section, how was a final wording reached, and what did the various state legislators who voted to ratify it think or believe about it? Because the one thing we know for sure is these people were human beings, and these species tend to vary widely in their views and opinions.

    Good luck distilling a single “original intent” from that.

    4
  26. Pete S says:

    My only cause for optimism is that Barrett and Roberts rule against this EO to give them some cover when they vote to uphold some other egregious ones. It’s a slim hope but possible. I assume Alito and Thomas have written their judgments already.

    2
  27. Gustopher says:

    @Hal_10000:

    I smell an Eastman at the heart of this. This interpretation would mean that Kamala Harris is not a citizen, which is one of the things the Eastman wing of MAGA was very keen on.

    Assuming she is not a time traveler born in the future, she would be a citizen based on the “this unconstitutional executive order affects children born more than 30 days from now” clause.

    Weird that gender is defined at conception, but citizenship at birth.

    3
  28. Gustopher says:

    A@Kathy: Luckily we have a congressional record to rely on. There were questions about whether this meant that the children of Chinese railroad workers would be citizens, and the writer of this passage said yes, before anyone voted.

    But, original intent never relies on the reconstruction amendments, just what a fictionalized Alexander Hamilton would have written in a Federalist paper if he wrote a Federalist paper about this — maybe he never intended for someone to add this amendment after he was long dead.

    There’s probably some 16th century witch hunter that Alito can find who wrote about something in common law that surely would tell us what the constitution really means.

    2
  29. Connor says:

    I agree with your basic point.

    I think your outrage is selective. Abuse of immigration law has been rampant for years, most specially under Biden. Where were you?

    I think the courts will adjudicate.

    I think the commentary on the Court is wholly political, and unworthy of the silly debate in comments.

  30. Daryl says:

    @Connor:
    Heil Trump

    1
  31. Flat Earth Luddite says:

    @Connor:

    Abuse of immigration law has been rampant for years, most specially under Biden.

    Oh please. Immigration has been broken in this country loooooong before Biden. If you’re going to carpet bomb blame, remember to show your work along with your answer.

    our corporate and political masters have used and abused the system since before the broken “40 acres and a mule” promise.

    IMO, easiest way to demonstrate “reform” is bussing and expelling the poor and suffering. I’d argue it’d be more effective to “perp-walk” the owners of the facilities hiring/using the workers. But I’ll bet $1 against a stale donut we won’t see that from this administration.

    Luddite signing off and crawling back into his cave.

    8
  32. Raoul says:

    Two things. Before the amendment was passed, the children of immigrant were deemed US citizens, so that has always been the traditional practice. It seems absurd to note that an amendment ostentatiously expanding citizenship is also narrowing it, the obvious interpretation is that they were codifying common law. Also, partial jurisdiction is a crock, either, you have jurisdiction or you don’t (like been dead or alive). A court can never say they only have partial (as opposed to joint or shared) jurisdiction on matters in front of it. Moreover, in conflicts if the law, the res (land) is considered the default position (which serendipitously is why a given matter is front of that court is given its jurisdiction… does this need to be spelled out?). One more point, Judge Ho said that immigrants are like an invasion army and therefore (who the hell knows). Judge Ho needs to be as far away from the bench as possible.

    2
  33. mattbernius says:

    @Hal_10000:

    I smell an Eastman at the heart of this. This interpretation would mean that Kamala Harris is not a citizen, which is one of the things the Eastman wing of MAGA was very keen on.

    I think the more likely explanation is this 100% Steven Miller finding any legal theory that matches his anti-immigrant views. The reality is he’ll be running our immigration policy for the next four years. And it’s already clear that this was never just about *illegal*/undocumented immigrants.

    For the record, in addition to Kamala Harris, if retroactively employed it would mean that Usha Vance is also not a citizen either.

    2
  34. Matt Bernius says:

    @Connor:

    I think your outrage is selective. Abuse of immigration law has been rampant for years, most specially under Biden.

    Can you share some specific examples of this? I have to admit, I haven’t been paying as close attention, but from what I can tell, the Biden administration’s approach to immigration law is largely in keeping with past administrations from both sides of the aisle (excluding Trump 1 of course).

    2
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