This issue could change the face of our nation over the next four decades.
The Original Purpose: Yes, It Was About Slavery: The citizenship clause was added to the Constitution in 1868 and was intended to overrule the Supreme Court’s 1857 decision in Dred Scott v. Sandford, which held that a Black person whose ancestors were brought to this country and sold as enslaved persons was not a U.S. citizen. SCOTUSblog President Trump insists this was about slaves from the Civil War and not for billionaires bringing people in it was for the children of slaves.
Solicitor General, D. John Sauer, is made this exact argument at the Supreme Court. Sauer cited the Slaughter-House Cases (1873), where the Court “recognized that the Amendment’s ‘one pervading purpose’ was ‘the freedom of the slave race’ and ‘the security and firm establishment of that freedom.’“ He also pointed to Elk v. Wilkins, where the Court indicated the clause’s primary purpose “was to settle ‘the citizenship of free slaves.’“ SCOTUSblog
But the Text Went Broader Than Slaves: Here’s where this debate gets complicated. The framers didn’t write “all formerly enslaved persons and their children are citizens.” They wrote this in much broader language: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.”
The challengers are arguing that the citizenship clause “drew on and reaffirmed a centuries-old, common-law tradition of citizenship by virtue of birth, rather than parentage.” They pointed out that in early English law, “children born to ordinary foreign nationals were subjects” of the king, whether or not their parents lived permanently in England. In 1844, a New York court applied that same rule, holding that a child born in New York to Irish parents living temporarily in the United States was a U.S. citizen. SCOTUSblog
The Key Precedent: Wong Kim Ark (1898): The most important case on this was decided 128 years ago. In the case of Wong Kim Ark, who was born in San Francisco to parents of Chinese descent, a majority of the Supreme Court agreed he was a U.S. citizen. Justice Horace Gray wrote that although the “main purpose” of the 14th Amendment had been to establish the citizenship of Black people, the amendment applies more broadly and is not restricted “by color or race.” Instead, it “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.” SCOTUSblog
Justice Gray noted there have historically been only a few exceptions children of hostile enemies occupying the country, children of foreign diplomats, and (until 1924) some Native Americans. SCOTUSblog
Congress has Reinforced This Understanding Twice: On January 20, 2025, President Trump signed Executive Order 14160, ordering all departments of the executive branch to refuse to recognize children born to illegal immigrants or visa holders as citizens. Wikipedia
However, the administration has a statutory problem. The challengers contend that the executive order is invalid for the separate reason that it violates a federal immigration law, 8 U.S.C. § 1401, providing that anyone “born in the United States, and subject to the jurisdiction thereof” is a U.S. citizen. They insist that when the statute was first passed in 1940 and then reenacted in 1952, Congress should have understood that the phrase incorporated the prevailing practice that virtually everyone born in the United States is automatically a citizen. SCOTUSblog Shame on congress for not catching this problem.
They also point out that in the 1940s and ’50s, Congress upheld the “subject to the jurisdiction thereof” language in immigration law, showing that lawmakers found the text suitable enough to codify it into law. It is understood that a president’s executive order generally cannot override a law passed by Congress.
The “Subject to the Jurisdiction Thereof” Fight: This entire case hinges on six words. The Trump administration is arguing that to be “subject to the jurisdiction” of the United States, you must be “completely subject” to its “political jurisdiction,” meaning you must owe it “direct and immediate allegiance” and receive “protection” from it. The children of noncitizens “who are domiciled elsewhere, and are only temporarily present in the United States, owe primary allegiance to their parents’ home countries.” And the children of undocumented immigrants “do not owe primary allegiance to the United States by virtue of domicile, for illegal aliens lack the legal capacity to establish domicile here.” SCOTUSblog
The challenge is if the drafters of the 14th Amendment had intended to go against the existing practice of granting citizenship to all babies born in the United States in favor of giving citizenship only to the children of parents who make their home permanently here, “they would have said so.” They add that “undocumented immigrants are domiciled in this country: They reside here, with ‘an intention to remain.’“ SCOTUSblog
Obama’s Position in Context: Obama affirmed birthright citizenship as a fundamental principle of American law but wasn’t making a novel or controversial interpretation. He was only following the same understanding that every president—Republican and Democrat—had operated under for over a century, grounded in Wong Kim Ark, reinforced by Congress twice, and never seriously challenged by any administration until now. Under his administration 3 million illegals were deported but he never questioned the birthright citizenship framework itself.
Where do Things Stand Today: Trump has said that people and companies, many from China, have profited off birth tourism by bringing people into the U.S. with the intent of giving birth so their children could be granted citizenship. “People are making a living, a big living, getting hundreds of thousands and even millions of dollars from bringing people into the U.S.”
The liberal machine is pushing back, calling the rate of “birth tourism” marginal, and note that “federal regulations already prohibit issuance of tourist visas ‘for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States.’“ SCOTUSblog
There were four district court judges who blocked the order two appointed by conservative presidents and two appointed by liberal presidents they considered the issue and found the order to be illegal. This is why the administration brought the case to the Supreme Court in 2025 through the emergency docket process.
The Bottom Line: This battle revolves around the historical evidence showing the 14th Amendment was motivated by and prompted by the need to grant citizenship to former slaves and their children. President Trump is correct about the original impetus. Unfortunately, the framers chose to write the text more broadly than just covering former slaves, the Supreme Court confirmed that broader reading in 1898 (Wong Kim Ark), and Congress codifying it into statute in 1940 and 1952, and every administration followed it for over 150 years.A ruling is expected by late June or early July.
There are 5 potential remedies to this problem: 1. Acceptance of Trumps executive order which seems doubtful. 2. Congressional legislation redefining “Subject to the Jurisdiction which would face more court challenges, 3. Supreme Court reversal of Wong Kim Ark which is also doubtful after listening to the hearing. 4. Depending on the Ruling there are a few options:Rather than changing the citizenship clause, Congress could focus on removing the practical incentives that drive birth tourism and exploitation:
- Strengthen visa screening—Federal regulations already prohibit issuing tourist visas for the primary purpose of giving birth in the U.S., but enforcement has been weak
- Crack down on birth tourism operators—The DOJ has prosecuted some birth tourism rings, particularly those catering to Chinese nationals
- Mandate E-Verify—Making employment verification mandatory would reduce the economic incentive. Something that employers in Idaho don’t do.
- Reform chain migration—Limit the ability of birthright citizens to sponsor family members for immigration until they reach adulthood which is currently 21.
Fifth is the constitutional amendment path, the only one that would be legally unassailable: Everything short of that will face court challenges and ultimately depend on how the Supreme Court interprets the 14th Amendment’s text. This is by far the most difficult route as you would need a 2/3’s vote of both the House and Senate and ratification by three quarters of 38 state legislature’s
The most realistic near-term remedy is: Congressional legislation redefining “subject to the jurisdiction thereof,” combined with Heritage Foundation’s framework that the Citizenship Clause was originally understood as bestowing birthright citizenship only on the U.S.-born children of citizens, newly freed slaves, and those situated similarly—in other words, on lawful permanent residents and those who owed an unqualified allegiance to the United States government. Heritage Foundation. The constitutional amendment path is the only permanent solution. What will be the consequences should Trump lose this argument? We will offer our opinion next week.
“We Get the Government We Deserve.”
