Jus Soli – “right of the soil” – is the birthright of US citizens … but what qualifies one for inheritance? In one of many Inauguration Day executive orders, President Donald Trump answered the question: If both your parents are here illegally, then the automatic conference of citizenship defined by the 14th Amendment isn’t for you.
Simple, right? Not exactly. Just three days later, on January 23, a federal judge issued a temporary stay against the order. As it turns out, this issue won’t be resolved so easily. Trump should have expected this immediate challenge – in fact, perhaps he did, and queuing up the legal battle was all part of the plan.
An Issue of Birthright
On January 20, 2025, Donald Trump signed an executive order titled “Protecting the Meaning and Value of American Citizenship.” The idea of automatic birthright citizenship applying even to the children of illegal aliens stems from the wording of the 14th Amendment to the Constitution. Section 1 reads:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and 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 any person within its jurisdiction the equal protection of the laws.”
Those who believe in birthright citizenship for the offspring of illegal aliens born in the US – often derisively called “anchor babies” – argue that “all persons born or naturalized in the United States” means literally everyone, regardless of the circumstances of their birth. “Subject to the jurisdiction thereof,” they argue, means subject to the laws of the land because they happen to be here.
Those who oppose, on the other hand, argue that the part about jurisdiction means those who owe allegiance to and are beholden to only the United States, excluding the children of foreign nationals who are citizens of other countries. The president falls into the latter camp.
“The privilege of United States citizenship is a priceless and profound gift,” Trump declared in the executive order. “The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof,’” he continued. Such persons are later defined as those born in the US when neither parent is a US citizen and the mother is in the country illegally at the time of birth or under a legal but temporary status, like a visa for work, school, or travel.
Trump's order declared that no US department or agency would issue or recognize citizenship for these people, to take effect February 19. The order didn’t make it anywhere close to that effective date. In just three days, US District Judge John C. Coughenour issued a temporary stay and told a Justice Department lawyer: “This is a blatantly unconstitutional order.”
Defining Inheritance
“I’ve been on the bench for over four decades,” Judge Coughenour said. “I can’t remember another case where the question presented was as clear as this one.”
Clear, however, is perhaps not the best word to describe the issue.
A “plain reading” of the 14th Amendment could be used to support either argument, depending on how one defines “subject to the jurisdiction thereof.” There are, however, deeper questions – including regarding the validity of the 14th Amendment itself.
After the Civil War, the Reconstruction Acts established Union military rule over the defeated Confederacy, dividing all the rebellious states but Tennessee into five military districts tightly controlled by Union generals. The end of the war meant the Confederate states must remain in the Union, but in order to rejoin and once again govern themselves (more or less), they had to – among other things – ratify the 13th, 14th, and 15th Amendments. The Reconstruction Amendments were effectively ratified at gunpoint, and the 14th, at least, has remained controversial to this day.
Barring another amendment or some extreme (and unlikely) action by the Supreme Court, however, the 14th Amendment will remain in force regardless of the validity of its origin. A much better argument against birthright citizenship for the children of illegals was made by the man who introduced it into the Senate in 1866.
“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,” Senator Jacob Howard of Michigan said on the Senate floor. “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.”
Based on the punctuation and word usage, many argue that this only applies to the children of ambassadors or foreign ministers. The best refutation of that interpretation, however, quickly followed in the general discussion at the time. “I presume the honorable Senator from Michigan does not intend by this amendment to include the Indians,” said Senator James Doolittle of Wisconsin.
“Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States,” Mr. Howard clarified. “They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nationals.”
All Native Americans were granted citizenship in 1924 through the Indian Citizenship Act, but the very necessity of its passage almost 60 years later simply demonstrates that Mr. Howard’s interpretation was, in fact, the standard understanding. And it was Mr. Howard’s version of the amendment that the Senate and the House adopted and that went into the Federal Register as the 14th Amendment.
Senator Howard’s argument was that, as a foreign national subject to the rule of another authority before the US government, Indians were excluded from this automatic birthright citizenship. Applying that logic to modern birth tourism would suggest that babies born on American soil to illegal aliens – or, for that matter, even foreign nationals here legally but without being naturalized citizens – are not, in fact, US citizens.
The Battle Continues
Judge Coughenour’s two-week stay, which he says is necessary to give time for both sides to make their arguments, expires before the order was supposed to take effect on February 19. That, perhaps, is the oddest part of the ruling. Otherwise, an immediate challenge and fairly quick ruling in a lower court was far from unexpected. An appeal has already been filed, and this case seems likely to work its way all the way up to the US Supreme Court. One might even be forgiven for assuming the president expected and even planned for it in order to get a ruling from a High Court he believes will decide in his favor.
The Supreme Court did historically rule in favor of Trump’s interpretation of birthright citizenship – until it didn’t. In the 1873 Slaughterhouse Cases, both the majority and the dissent agreed that “subject to the jurisdiction thereof” excluded the children of citizens or subjects of foreign states, even if born in the US. This was reinforced in the Elk v. Wilkins decision of 1884, which stated that an Indian born on a reservation was not a citizen of the United States.
In 1898, however, the Supreme Court reversed that position in United States v. Wong Kim Ark, establishing birthright citizenship for anyone born in America, regardless of the parents’ citizenship status. Which way today’s High Court will rule, however, is anyone’s guess – and President Trump seems to be betting on himself.
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