The Birthright Citizenship Timebomb Ticks

The Supreme Court is expected to issue several decisions on Monday, none of which is more controversial than its determination of whether the Fourteenth Amendment to the US Constitution authorizes birthright citizenship. Americans are passionately divided over this issue, ensuring the court’s legal analysis will fuel partisan outrage (and opposing joy), whichever way the court rules.

Defining US Citizenship

On his first day in office, January 20, 2025, President Donald Trump signed Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship.” EO 14160 sought to deny US citizenship to children born on US soil to non-citizens. Multiple lawsuits were promptly filed to block the president, one of which, Trump v Barbara, was accepted for consideration by the US Supreme Court.

The Fourteenth Amendment, ratified in 1868 to secure citizenship for former slaves, states: “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 legal analysis required of the US Supreme Court is to decide whether “subject to the jurisdiction thereof” is operative and imposes a requirement in addition to being “born or naturalized in the United States.”

Supporters of open borders and lax immigration policy argue that the United States has long used the Fourteenth Amendment to automatically confer citizenship on children of illegal immigrants and traveling visitors. Many of President Trump’s detractors assert racist motives and claim the very effort to block birthright citizenship is authoritarian and offensive.

Gray Laws and Political Polarization

However, the law is not as cut-and-dry as many leftist legal pundits allege. The seminal case on the issue is United States v. Wong Kim Ark, decided in 1898, which acknowledged the plaintiff’s claim to US citizenship based on his birth in San Francisco to Chinese citizens. Yet the legislative history of the Fourteenth Amendment and subsequent acts of Congress suggest something more than mere birth was required by the phrase “subject to the jurisdiction thereof.”

In its amicus curiae brief in Trump v Barbara, the Claremont Institute’s Center for Constitutional Jurisprudence addresses the historical context of the Fourteenth Amendment, including the Indian Citizenship Act of 1924, which granted citizenship to “all noncitizen Indians born within the territorial limits of the United States.” The 1924 Act would have been unnecessary if Congress had understood the Fourteenth Amendment to create birthright citizenship.

The amicus curiae brief also points to the specific representations of the legislative members who advanced the Fourteenth Amendment:

“Representative John Bingham, a key figure in drafting the Fourteenth Amendment, was even more direct, stating that “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is ... a natural-born citizen.” … Thus, the Civil Rights Act of 1866 demonstrates the contemporaneous congressional understanding that citizenship required more than birth; it required an allegiance inconsistent with being subject, through one’s parents, to a foreign power.”

Birthright Battle Apex

There are good-faith legal arguments to be made by lawyers on both heated sides of this socio-cultural hot-button issue, which explains the intensity of feelings among opposing political factions on illegal immigration. America was not experiencing mass illegal immigration in 1898. It is estimated that more than 250,000 children are born in the US annually to mothers in the country illegally or on temporary status. An interpretation of the Fourteenth Amendment that narrows it to merely territorial citizenship (rendering “subject to the jurisdiction thereof” meaningless) creates a moral hazard in which mothers hoping for a better future for their children will consider desperate means to enter the US illegally to deliver their child here.

Supporters of a broad interpretation of the Fourteenth Amendment point to the loss of SNAP, CHIP, Medicaid, and other benefits for hundreds of thousands of children a year. Opponents point to the same list and ask why legal citizens should pick up this ever-growing tab.

This contentious political conflict has now been funneled into the nation’s highest court, which just last week ruled that the Trump administration has the authority to terminate Temporary Protected Status (TPS) for 350,000 Haitians and 6,100 Syrians. Trump v Barbara addresses a completely different legal issue, but impacts an overlapping demographic: many of the temporary Haitian and Syrian refugees affected by the TPS ruling may have given birth to children who could now be denied citizenship.

It is easy to see why temperatures run high on both sides of the political divide over birthright citizenship. The US Supreme Court could kick the can down the road and delay a ruling in Trump v Barbara until after the midterms. Whenever this decision is issued, the court’s interpretation of the Fourteenth Amendment and its impact on the birthright battle will be both legally and politically seismic.

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