Can Trump's Executive Order on Birthright Citizenship Survive the Courts?

[Doc7505]

Can Trump's Executive Order on Birthright Citizenship Survive the Courts?​

Can Trump's Executive Order on Birthright Citizenship Survive the Courts?

redstate.com

24 Jan 2025 ~~ By Joe Cunningham

Within days of taking office, President Donald Trump signed an executive order that has been misconstrued by most of the talking heads out there as "ending birthright citizenship." This characterization uses an overly broad brush to paint over what is actually an extremely nuanced issue with regard to the interpretation of citizenship in the 14th Amendment.
Section 1 of the amendment starts off with one of the most consequential lines of any of the Reconstruction Amendments passed in the wake of the Civil War: "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."
What Trump's executive order does is limit the interpretation of that line in the legal sense. In the order, Trump directs the government not to legally (through documentation, etc.) recognize the citizenship of anyone "(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."
In other words, if the parents are not in the United States legally, then the child is not automatically granted citizenship.
~Snip~

What Is "Legal"?​

The Supreme Court answered the question of birthright citizenship in the late 1800s, in United States v. Wong Kim Ark. Wong Kim Ark was born to parents who were legal residents, though not U.S. citizens, living in San Fransisco at the time. The family left America, though Wong came back and was denied entry into the country.
He sued, claiming he was a citizen, and the case went before the Court. Here is what they found:

• Common Law Precedent: The Court relied on the English common law principle of "jus soli" (right of the soil), which grants citizenship to those born on national territory regardless of parental nationality, except for children of foreign diplomats and enemy forces.
• Fourteenth Amendment Interpretation: The amendment's language—"born in the United States, and subject to the jurisdiction thereof"—was meant to ensure that all persons born on U.S. soil (except specific exclusions) were granted citizenship.
• Historical Intent: The Court emphasized that the amendment aimed to settle citizenship questions definitively, particularly for children born to foreign parents residing legally in the U.S.
• Legal Precedents: The Court cited various precedents and interpretations of "jurisdiction," concluding that Wong Kim Ark was fully subject to U.S. jurisdiction and thus a citizen.

~Snip~
There are really two ways that the change to our interpretation of birthright citizenship can happen. The first is through an act of Congress, which will probably never happen. The second is to get the Supreme Court to amend or overturn its previous ruling, which is difficult but not impossible.
There are two objectives here:

1. Get the Supreme Court to reverse the previous position that "subject to the jurisdiction thereof" applies to everyone born in the United States.
2. Recognize that, under this interpretation, Wong Kim Ark's parents were "subject to the jurisdiction thereof" because they were legal residents in the United States.

Can He Do It?
He certainly could pull it off. He has just the right Supreme Court makeup to have a chance. The originalists on the Court will undoubtedly take a look at the fact that the original intent of the 14th Amendment was to apply to people legally in the U.S. (a fact that is in the congressional record, if you go and read up on what the authors of the amendment were discussing at the time). But it's still a tall order.
Should He Do It?
In all honesty, I'm not convinced it's the battle we should have right now. There are more immediate and critical needs in the fight to fix the immigration issue than to tackle birthright citizenship. However, it is something he promised, and he wants to deliver on it.
It's one of those long-game plans. This will have very little impact in the near future, but could work long-term to dissuade birth tourism in the U.S. For immigration hawks, it's a vital piece of the strategy to reshape how America controls its borders and protects its citizenry.


Commentary:
If two invaders enter the country, their offspring certainly don't get to hold citizenship that their parents never had.
Sometimes in politics you fight a battle knowing your are probably going to lose to show your voter base you take their concerns seriously. You also fight the battle to provoke a debate and more public opinion towards your viewpoint.
Not fighting a political battle because you afraid to lose, is an automatic loss, something the GOP-E still does not understand.

 

[excalibur]

In order to make American Indians citizens, Congress had to pass an Act in 1924.

There is no "birthright" citizenship mentioned anywhere in the Constitution.

The citizen created in the 14th Amendment was for free blacks and recently freed slaves, nothing else, and in order to enforce the Civil Rights Act of 1866, which came first but needed some backbone added for enforcement.

 

[Admiral Rockwell Tory]

In order to make American Indians citizens, Congress had to pass an Act in 1924.

There is no "birthright" citizenship mentioned anywhere in the Constitution.

The citizen created in the 14th Amendment was for free blacks and recently freed slaves, nothing else, and in order to enforce the Civil Rights Act of 1866, which came first but needed some backbone added for enforcement.

The 14th Amendment mentions it. You really should read it. Indians were not Included as they were not under the jurisdiction of the United Sates but to their own tribal governments.

 

[tyroneweaver]

if diplomats have children in america they "are not" given citizenship, why should an illegal alien.

 

[1srelluc]

In about 2.5 years we will know.

 

[Admiral Rockwell Tory]

if diplomats have children in america they "are not" given citizenship, why should an illegal alien.

They are not here of their own free will. They are sent here as representative to their country and are subject to the jurisdiction of that country and not the US.

 

[kyzr]

They are not here of their own free will. They are sent here as representative to their country and are subject to the jurisdiction of that country and not the US.

Illegals are a threat to national security. The US did not have terrorism and global adversaries when the 14th was written.

One other means could be the "Convention of States" being called currently to revise or repeal the 14th.

Convention of States Action

Article V offers the only constitutional solution as big as the problem. Together, we can end federal overreach.

conventionofstates.com

 

[martybegan]

In order to make American Indians citizens, Congress had to pass an Act in 1924.

There is no "birthright" citizenship mentioned anywhere in the Constitution.

The citizen created in the 14th Amendment was for free blacks and recently freed slaves, nothing else, and in order to enforce the Civil Rights Act of 1866, which came first but needed some backbone added for enforcement.

it was to prevent States from saying blacks weren't citizens of their States, and thus the US as a whole.

 

[tyroneweaver]

They are not here of their own free will. They are sent here as representative to their country and are subject to the jurisdiction of that country and not the US.

...and that's your apologetic???? geeeeeze.

 

[Admiral Rockwell Tory]

...and that's your apologetic???? geeeeeze.

Nope. Just a fact.

 

[excalibur]

The 14th's citizenship clause was solely to grant citizenship to American-born blacks, both free men and freed slaves, nothing else.

An Act of Congress was needed to grant citizenship to American Indians.

 

[Blaster]

We are the only country that gives illegal's children birthright citizenship.

 

[John Edgar Slow Horses]

Of course not.

Can Trump's Executive Order on Birthright Citizenship Survive the Courts?

 

[Rigby5]

In order to make American Indians citizens, Congress had to pass an Act in 1924.

There is no "birthright" citizenship mentioned anywhere in the Constitution.

The citizen created in the 14th Amendment was for free blacks and recently freed slaves, nothing else, and in order to enforce the Civil Rights Act of 1866, which came first but needed some backbone added for enforcement.

Wrong.
Until the American Indian Act of 1924, the native Americans were superior to US citizens, and exempt from all laws, taxes, etc.

There is "no birthright citizenship" mentioned in the Constitution because the Constitution creates no rights at all, and is mainly to divide jurisdiction between federal and all others.

It does not matter what the main purpose of the 14th amendment was, what it says is that all born here are citizens.

And if we do not accept birthright citizenship, then no one but Native American is a citizen.
Surely you are not going to try to claim the Pilgrims or Jamestown invaders were "citizens"?
And if they were not, then clearly their descendants are still not citizens, unless you accept "birth right citizenship".

 

[Rigby5]

We are the only country that gives illegal's children birthright citizenship.

Totally wrong.
About half the countries in the world accept the inherent idea of birth right citizenship.

 

[Rigby5]

Congress and the courts can rule on birth right citizenship, but the one branch that gets no say is the executive.

 

[Rigby5]

Here is the 14th Amendment, and clearly it says it does apply to anchor babies.

{...

Amendment XIV​

Section 1.​

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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3.​

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.​

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.​

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
...}