Does anyone who is born on our land automatically receive citizenship? Not according to the Fourteenth Amendment, but that hasn’t stopped the courts from messing this up. Which is exactly what I expect from the Supreme Court in the case Trump v. Barbara.
Question Presented
Have you noticed how many things people just seem to know to be true? And have you noticed how rarely this “common knowledge” is based in facts and data? For the last month, it seems a lot of people have been spouting “common knowledge” about the Birthright citizenship and the Fourteenth Amendment that is based in anything but fact.
The Citizenship Clause of the Fourteenth Amendment provides that those “born * * * in the United States, and subject to the jurisdiction thereof,” are U.S. citizens. U.S. Const. Amend. XIV, § 1. The Clause was adopted to confer citizenship on the newly freed slaves and their children, not on the children of aliens temporarily visiting the United States or of illegal aliens.
Trump v. Barbara – Petition for a Writ of Certiorari
So far the complaint is correct. The Fourteenth Amendment says that those born in the United States, and subject to the jurisdiction thereof, are citizens, but that’s just the beginning.
On January 20, 2025, President Trump issued Executive Order No. 14,160, Protecting the Meaning and Value of American Citizenship, which restores the original meaning of the Citizenship Clause and provides, on a prospective basis only, that children of temporary visitors and illegal aliens are not U.S. citizens by birth.
Trump v. Barbara – Petition for a Writ of Certiorari
Yes, Trump issued an Executive Order. What it does is not simply restore the original meaning, but the language of the Constitution of the United States and federal law.
The Citizenship Order directs federal agencies not to issue or accept citizenship documents for such children born more than 30 days after the Order’s effective date.
The question presented is whether the Executive Order complies on its face with the Citizenship Clause and with 8 U.S.C. 1401(a), which codifies that Clause.
Trump v. Barbara – Petition for a Writ of Certiorari
So is an Executive Order that complies with both the Constitution and U.S. Law valid? That’s the question asked.
Gen. D. John Sauer, Solicitor General
Oral arguments begin with Solicitor General John Sauer for Donald Trump.
GENERAL SAUER: Mr. Chief Justice, and may it please the Court:
The Citizenship Clause was adopted just after the Civil War to grant citizenship to the newly freed slaves and their children, whose allegiance to the United States had been established by generations of domicile here. It did not grant citizenship to the children of temporary visitors or illegal aliens, who have no such allegiance.
This conclusion reflects the original public meaning of the clause. When Congress used the term “not subject to any foreign power” in the Civil Rights Act of 1866, it rejected the British conception of allegiance. Senator Trumbull explained that “subject to the jurisdiction thereof” in the clause means not owing allegiance to anybody else. And in 1884, this Court recognized that “subject to the jurisdiction” means owing direct and immediate allegiance.
Trump v. Barbara – Oral Arguments
Interesting, Mr. Sauer seems to be using a preceding piece of legislation to define the term “and subject to the jurisdiction thereof” in the Fourteenth Amendment. I have a better idea. What about Senator Jacob Merritt Howard, the person that offered the amendment to the joint resolution that eventually became the Fourteenth Amendment? I’ll look into that deeper in the section on the History of the Fourteenth Amendment.
The clause thus does not extend citizenship to the children of temporary visa holders or illegal aliens. Unlike the newly freed slaves, those visitors lack direct and immediate allegiance to the United States. For aliens, lawful domicile is the status that creates the requisite allegiance, and the text of the clause presupposes domicile.
Trump v. Barbara – Oral Arguments
While temporary visa holders and illegal aliens seem obvious, I am curious about permanent residents. I’ll delve into that later.
For decades following the clause’s adoption, commentators recognized that the children of temporary visitors are not citizens and illegal aliens lack the legal capacity to establish domicile here.
Trump v. Barbara – Oral Arguments
More evidence of congressional intent. Temporary visitors are not subject to the jurisdiction of the United States, neither are those who entered the country illegally.
Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations. It demeans the priceless and profound gift of American citizenship. It operates as a powerful pull factor for illegal immigration and rewards illegal aliens who not only violate the immigration laws but also jump in front of those who follow the rules.
It has spawned a sprawling industry of birth tourism as uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the United States in recent decades, creating a whole generation of American citizens abroad with no meaningful ties to the United States.
I welcome the Court’s questions.
Trump v. Barbara – Oral Arguments
While it may be nice that we are trying to align our policies with the overwhelming practice of other countries, we are not a nation of polices, but of laws. And the supreme law of the land is the Constitution, including the Fourteenth Amendment.
Cecillia D. Wang, on behalf of the Respondents
Next comes Ms. Wang, representing a group of individuals.
MS. WANG: Mr. Chief Justice, and may it please the Court:
Ask any American what our citizenship rule is and they’ll tell you, everyone born here is a citizen alike. That rule was enshrined in the Fourteenth Amendment to put it out of the reach of any government official to destroy.
Trump v. Barbara – Oral Arguments
While most Americans may believe that citizenship is based on birthplace, that does not make it true. And the fact that Ms. Wang, along with just about every other commentator and pundit I’ve heard discuss this case, claims birthright citizenship is based on the Fourteenth Amendment doesn’t make that true either.
When the government tried to strip Mr. Wong Kim Ark’s citizenship on largely the same grounds they raise today, this Court said no. Thirty years after ratification, this Court held that the Fourteenth Amendment embodies the English common law rule. Virtually everyone born on U.S. soil is subject to its jurisdiction and is a citizen.
Trump v. Barbara – Oral Arguments
That is exactly the problem. The Fourteenth Amendment didn’t create birthright citizenship, but the Supreme Court did in the case United States v. Wong Kim Ark. I’ll discuss that later as well.
It excludes only those cloaked with a fiction of extraterritoriality because they are subject to another sovereign’s jurisdiction even when they’re in the United States, a closed set of exceptions to an otherwise universal rule.
My friend has now clearly said that the government is not asking you to overrule Wong Kim Ark. That is a fatal concession because Wong Kim Ark’s controlling rule of decision precludes their parental domicile requirement.
Trump v. Barbara – Oral Arguments
I agree that Mr. Sauer not asking to overrule Wong Kim Ark is a mistake. Not the Ark decision “controls,” but because it’s a blatant violation of the Fourteenth Amendment.
That understanding was confirmed by Congress with its 1940 act. The Fourteenth Amendment’s fixed bright-line rule has contributed to the growth and thriving of our nation. It comes from text and history. It is workable, and it prevents manipulation.
Trump v. Barbara – Oral Arguments
I’m not sure what act Ms. Wang is referring to, but I point to the actual law.
(a) a person born in the United States, and subject to the jurisdiction thereof;
8 USC §1401(a)
Congress used the exact same language as the Fourteenth Amendment. Rather than confirming the Ark case, it confirmed the language of the Fourteenth Amendment.
The Executive Order fails on all those counts. Swaths of American laws would be rendered senseless, thousands of American babies will immediately lose their citizenship, and if you credit the government’s theory, the citizenship of millions of Americans, past, present, and future, could be called into question.
All of this tells us the government’s theory is wrong.
I welcome the Court’s questions.
Trump v. Barbara – Oral Arguments
The executive order may fail Ms. Wang’s consideration, but it does not fail the Constitution’s.
History of the Fourteenth Amendment
JUSTICE THOMAS: General Sauer, before we get into the broader national issues, would you start with Dred Scott? Dred Scott was a case about state citizenship. It was a diversity case. The — and, of course, we know what Chief Justice Taney did with that.
How does the Citizenship Clause respond specifically to Dred Scott and answers — or changes — or corrects its answer as to citizenship?
Trump v. Barbara – Oral Arguments
Dred Scott what the 1857 Supreme Court case that stated blacks did not have any rights a white man had to honor. Therefore, they could be denied citizenship. When the Fourteenth Amendment was proposed by Congress in 1866 and ratified in 1868, it was a direct response to that awful decision.
GENERAL SAUER: Thank you, Justice Thomas.
I’ll maybe start by addressing Dred Scott, you know, as — as you alluded to the fact Dred Scott, you know, imposed one of the worst injustices in the history of — of this Court and it led to the outbreak of the Civil War. It’s very clear, and this Court in all of its early cases interpreting the Fourteenth Amendment said, you know, the one pervading purpose, the main object of the Citizenship Clause, is to overrule dead — Dred Scott and establish the citizenship of the freed slaves.
Trump v. Barbara – Oral Arguments
So how did we get from insuring that former slaves were not citizens to anyone born in our territory is automatically a citizen?
CHIEF JUSTICE ROBERTS: Well, starting with that theory, you obviously put a lot of weight on “subject to the jurisdiction thereof,” but the examples you give to support that strike me as very quirky, you know, children of ambassadors, children of enemies during a hostile invasion, children on warships, and then you expand it to a whole class of illegal aliens are — are here in the country.
Trump v. Barbara – Oral Arguments
Do the words “subject to the jurisdiction thereof” mean anything? That is the gist of this case. Let’s start by looking at the words of Senator Jacob Merritt Howard, the man who proposed the language “and subject to the jurisdiction thereof,”
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”
Congressional Globe p. 2890
Senator Howard clearly expressed his intent in offering the language “and subject to the jurisdiction thereof.” Does that represent congressional intent?
Now all this amendment provides is, that all persons born in the United States and not subject to some foreign Power — for that, no doubt, is the meaning of the committee who have brought the matter before — shall be considered as citizens of the United States.
Congressional Globe p. 2890
If Senator Howard is correct, that the committee who brought the matter up agrees with his understanding. I think that makes a much better argument than relying on the Civil Rights Act of 1866.
Justice Sotomayor makes a rather straw man argument.
JUSTICE SOTOMAYOR: All right. So what do you do during the debates of the 1866 Civil Rights Act and of the Fourteenth Amendment with the entire discussion of the people who opposed the amendment who kept saying we can’t pass it because we’re making citizens of gypsies, who have no allegiance to anybody, and we’re now — we’re going to make citizens of Chinese people, who can’t be citizens because we’re not going to permit them to be citizens.
What do we do with those debates and the fact that the proponents of both acts said everyone who’s born in the U.S. will be citizens?
Trump v. Barbara – Oral Arguments
First of all, the people who opposed both the 1866 Civil Rights Act and the Fourteenth Amendment lost. Their arguments didn’t win the day. And this argument that both sides said “everyone who’s born in the U.S. will be citizens” is not supported by fact, and is refuted by the floor debate of the Senator who offered that language “and subject to the jurisdiction thereof.” This is a complete red-herring, and she wasn’t done.
JUSTICE SOTOMAYOR: I agree with you what the European nations’ rule is, but England was always different, wasn’t it?
GENERAL SAUER: Not until 1983 it changed to the — to the —
JUSTICE SOTOMAYOR: That’s not quite true. The Wong Kim Ark does a wonderful job of laying out the English rule. And you claim it was different, but there isn’t any treatises or scholars who say it’s different. English rule was always by birth. Other people were not by — other countries were not by birth.
Trump v. Barbara – Oral Arguments
Which is the problem with the Wong Kim Ark decision. The court places a foreign rule above the supreme law of the land. Justice Jackson displayed a similarly flawed view of the Fourteenth Amendment
And I was thinking, you know, I’m — I’m — I, a U.S. citizen, am visiting Japan. And what it means is that, you know, if I steal someone’s wallet in Japan, the — the Japanese authorities can arrest me and prosecute me. It’s allegiance meaning can they control you as a matter of law. I can also rely on them if my wallet is stolen to, you know, under Japanese law, go and prosecute the person who has stolen it.
So there’s this relationship based on — even though I’m a temporary traveler, I’m just on vacation in Japan, I’m still locally owing allegiance in that sense. Is that the right way to think about it? And, if — if so, doesn’t that explain why both temporary residents and undocumented people would have that kind of “allegiance” just by virtue of being in the United States?
MS. WANG: That’s absolutely right, Justice Jackson, and that comports with the plain text of the Fourteenth Amendment as it applies to everyone born in the United States. Other than those subject to the — to the exceptions that were baked in, a closed set, you owe natural allegiance as a U.S.-born citizen.
Trump v. Barbara – Oral Arguments
Except the Fourteenth Amendment doesn’t say “and subject to the jurisdiction of its laws”, but “subject to the jurisdiction thereof.” Meaning it’s not a question of whether or not someone is subject to our laws, but whether they are subject to the jurisdiction of the United States. You see, Justice Jackson, should she visit Japan and commit theft, she would be subject to their laws. At the same time if, while in Japan, she divulged classified information to the Japanese government, she could be tried in an American court, for an American crime, regardless of what nation she is in at the time the crime is committee.
Wong Kim Ark
To understand birthright citizenship in this nation, we have to understand the Supreme Court case United States v. Wonk Kim Ark.
GENERAL SAUER: I would first cite Wong Kim Ark on that point because Wong Kim Ark says you’re —
JUSTICE GORSUCH: Well, I’m not sure how much you want to rely on Wong Kim Ark.
(Laughter.)
Trump v. Barbara – Oral Arguments
I agree, the Wong Kim Ark case is a perfect example of judicial activism. Justice Kavanaugh did ask Gen. Sauer about it.
JUSTICE KAVANAUGH: The other side — last one. The other side relies heavily, of course, on Wong Kim Ark, and you disagree with their interpretation.
Oftentimes, when you are dealing with a constitutional precedent like this, you might argue we disagree with that interpretation, but if you adopt their interpretation or agree with their interpretation of that precedent, you should overrule it.
And you’re — you haven’t made that argument here, and I’m just giving you an opportunity to explain why you haven’t.
GENERAL SAUER: Because we think it’s totally unambiguous in Wong Kim Ark that the holding is — relates to domiciled aliens. And so we strongly agree with the holding.
Trump v. Barbara – Oral Arguments
Yes, the Wong Kim Ark decision did focus on the fact that Mr. Ark’s parents were residents of the United States, but it also completely ignored that language of the Constitution.
A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution,
United States v. Wong Kim Ark, 169 U.S. 649 (1898)
The Fourteenth Amendment requires that a person not only be born in the United States, but be subject to its jurisdiction. Clearly the court recognized that the parents of Wong Kim Ark were subjects of the Emperor of China, not the United States. Which proves that birthright citizenship was never founded in the Fourteenth Amendment, but by the Supreme Court, in violation of the law.
Ms. Wang made an interesting statement.
I do think it would be prudent for the Court to reaffirm its decision in Wong Kim Ark where it’s a landmark decision about the definition of national citizenship in this country.
Trump v. Barbara – Oral Arguments
Seeing as the court had violated both their oath and the law with the Wong Kim Ark decision, I would have to disagree with Ms. Wang.
Executive Order
Justice Kavanaugh asked about the separation of powers. Specifically, what could Congress do.
JUSTICE KAVANAUGH: And then, relatedly, just a separation-of-powers point but get your answer. I understand your point about the Executive Order, but Congress’s authority under Section 5 of the Fourteenth Amendment, I guess the answer you just gave means they don’t have any authority to look at this. Even if they passed it 435 to zero in the House and a hundred to zero in the Senate and said we’re carving out a new, by analogy to the existing categories, a new exception, your point is no, they’re closed, they’re frozen forever?
MS. WANG: Correct. And the way I would put it is that the Citizenship Clause of the Fourteenth Amendment, again, has a universal rule with a closed set of exceptions. Congress — it sets a floor. So the Congress has under the Naturalization Clause the power to expand citizenship to other people not covered by the Fourteenth Amendment, and, obviously, they have in many ways, but they can’t go below that floor that — that the — the Constitution sets.
Trump v. Barbara – Oral Arguments
Justice Kavanaugh is correct, Congress cannot change the language of the Fourteenth Amendment. No matter what the margin, laws of the United States that violate the Constitution are not the supreme law of the land and, in fact, are void.
Conclusion
While predicting how the court will decide is an iffy proposition at best. What can we glean from these arguments? It appears, once again, that the court is missing the forest for the trees. Justice Jackson gave a perfect example of this.
JUSTICE JACKSON: Good morning, General. So I guess I am looking at your position in this case, and it boils down to requiring us to do at least these two things: One is believe that the Framers were not importing the common law rule and understanding of birthright citizenship, and the second is to believe that what they were doing was departing from that common law rule in the way that you suggest, that is, in the — they were seeking to have this turn on domicile.
Trump v. Barbara – Oral Arguments
Justice Jackson seems fixated on English common law rather than the supreme law of the land and the framers of that document. The man who proposed the language “and subject to the jurisdiction thereof,” was not only clear but firm.
This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”
Congressional Globe p. 2890
What are these foreigners and aliens Senator Howard was talking about?
A foreigner; one born in, or belonging to, another country; one who is not a denizen, or entitled to the privileges of a citizen.
Alien – Webster’s 1828 Dictionary
A person born in a foreign country, or without the country or jurisdiction of which one speaks.
Foreigner – Webster’s 1828 Dictionary
So what is the supreme law of the land in the country? Is it our former ties to English Common Law, a decision of the Supreme Court that completely ignores the language of the Constitution, or is it the Constitution itself? Sadly, based on what I heard in oral arguments, I expect the nine high priests in black robes to genuflect to their previous decision rather than uphold their good behavior and oath to the supreme law of the land.
