The birthright citizenship ban is a losing hand. Why play it?

[cigaretteman]

“Blatantly unconstitutional.”
That was the verdict of the judge — and he’ll be the first of many — on President Donald Trump’s effort to eliminate birthright citizenship, the long-standing practice of conferring U.S. citizenship on anyone born in the United States.

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“I’ve been on the bench for over four decades,” U.S. District Judge John C. Coughenour said in temporarily blocking Trump’s order in a lawsuit brought by four states, “and I can’t remember another case where the question presented is as clear as this.”

The judge, appointed by President Ronald Reagan, was just getting started. “Frankly, I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order,” he told lawyer Brett Shumate, who has been tapped to head the Justice Department’s civil division, with the unenviable task of defending Trump’s actions in court. “It just boggles my mind.”


Boggles is right.
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Hours after Trump swore an oath to “preserve, protect and defend the Constitution of the United States,” the president tried to rewrite the Constitution by executive fiat. His order purporting to eliminate birthright citizenship violated the clear language of the 14th Amendment and a statute writing that protection into law. It also ignored a 127-year-old Supreme Court precedent enforcing the constitutional guarantee of birthright citizenship and subsequent rulings reaffirming that understanding.
Further complicating Shumate’s task, Trump’s order reached beyond the children of people in the country without authorization; it also applied to people whose parents are here legally, under temporary visas. Going forward, if Trump’s order isn’t overturned, only the children of legal permanent residents would be granted automatic citizenship.


This is a terrible idea, and a deeply un-American one, though it’s important to understand that birthright citizenship isn’t an American innovation — what the Supreme Court called “the ancient and fundamental rule of citizenship by birth within the territory” has sturdy roots in English common law.
And Trump is wrong when he asserts that “we are the only country in the world that does this with birthright, as you know, and it’s just absolutely ridiculous.” More than 30 nations extend such protections to all people born on their soil.
But if birthright citizenship isn’t uniquely American, eliminating it — an action that would affect an estimated 150,000 children born in the United States annually — would violate a fundamental American principle. As the American Civil Liberties Union explained in a separate lawsuit on behalf of immigrant rights groups, “Birthright citizenship embodies America’s most fundamental promise: that all children born on our soil begin life as full and equal members of our national community, regardless of their parents’ origins, status, or circumstances.”


Eliminating this protection would transform a long-settled, egalitarian civic order into nothing less than a system of caste privilege. Some born in this country would be less equal than others, a permanent underclass deprived of the rights and privileges that come with being an American.
The good news? This move, dangled by Trump during his first term and promised during the 2024 campaign, isn’t likely to stand.
As Trump himself seems to recognize, even this conservative Supreme Court will be reluctant to upend a foundational element of the national charter, adopted in the aftermath of the Civil War to reverse the high court’s repugnant ruling in Dred Scott v. Sandford that people of African descent “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution.”

https://www.washingtonpost.com/opinions/2025/01/28/trump-birthright-citizenship-constitution/

 

[cigaretteman]

The retort to this national shame was the 14th Amendment: “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.”
Trump’s argument rests on the clause, “subject to the jurisdiction thereof.” This language was intended to exclude only the children of diplomats or hostile forces, and members of Indian tribes (whose citizenship was later established by statute).
How do we know? First, the constitutional text is unambiguous. Conservative attorney James C. Ho, now a Trump appointee on the U.S. Court of Appeals for the 5th Circuit, laid this out in a 2006 article on the “original understanding” of birthright citizenship. “To be ‘subject to the jurisdiction’ of the U.S. is simply to be subject to the authority of the U.S. government,” Ho wrote. “The phrase thus covers the vast majority of persons within our borders who are required to obey U.S. laws,” children of both “lawful and unlawful aliens.” (A potential Supreme Court nominee in the Trump administration, Ho has recently shifted his position, emphasizing that “the children of invading aliens” aren’t entitled to birthright citizenship.)


Second, the 19th-century congressional debate over the provision reinforces that clear meaning. When one senator warned that birthright citizenship would prevent states from defending themselves if they were “overrun by another and different race,” proponents of the measure agreed. “Children begotten of Chinese parents in California … shall be citizens,” another senator responded.
Third, the Supreme Court said so in United States v. Wong Kim Ark, an 1898 case involving a man born in California to noncitizen Chinese parents. After a trip to China, he was denied reentry to the United States on the ground that he was not a citizen. The justices disagreed.
“The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States,” the court said. “Every 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.”


Trump’s order is doubly flawed because it violates not only the Constitution but a statute that writes birthright citizenship into law. Even if Congress had the power to cut back on the constitutional guarantee — and it doesn’t — Trump has no legal basis for doing so by executive order. Where, you have to wonder, are the Republicans who were so worked up over President Joe Biden’s supposed misuse of executive orders?
The administration has just started crafting its legal defense of this indefensible order. Not surprisingly, it doesn’t have much to work with.
“Under the plain terms of the Clause, birth in the United States does not by itself entitle a person to citizenship. The person must also be ‘subject to the jurisdiction’ of the United States,” the attorneys argue. “Contrary to Plaintiffs’ overheated rhetoric, that phrase does not mean simply being subject to federal jurisdiction to tax or regulate someone.”


This makes no sense. It’s more than a little odd for those who say individuals here illegally should be locked up if they commit crimes to also claim they are not “subject to the jurisdiction” of the United States.
Second, the Trump administration argues that those challenging the order are overreading the Wong Kim Ark decision, which involved a child born to parents with, as the court said, “permanent domicile and residence” in the United States. “Despite some broadly worded dicta, the Court’s opinion thus leaves no serious doubt that its actual holding concerned only children of permanent residents,” the administration asserts.
This is equally wrong. The Supreme Court has subsequently made clear that the 14th Amendment’s language about jurisdiction applies to both documented and undocumented migrants. In a 1982 case involving the rights of undocumented children to publicly funded education, the court said the 14th Amendment’s equal protection clause, which contains similar language about “jurisdiction,” applied to undocumented children. Conservative and liberal justices have subscribed to this interpretation.


Ho wrote in 2006: “Although the Court splintered over the specific question of public education, all nine justices agreed that the Equal Protection Clause protects legal and illegal aliens alike. And all nine reached that conclusion precisely because illegal aliens are ‘subject to the jurisdiction’ of the U.S., no less than legal aliens and U.S. citizens.”
So, let me amend Coughenour’s assessment. Blatantly unconstitutional, yes, but also deeply cynical. The administration knows it has a losing hand here. It doesn’t mind playing it, because it wants to underscore its “America First” message of hostility to immigrants. That mission, at least, has been sadly accomplished.