Trump wants to get things done. This sometimes means that he proceeds with policy that may be challenged under existing law, or under the US Constitution. If he thinks his policy is a good one, his attitude often betrays a willingness to fight the legal battles in the hope that his lawyers can beat their lawyers. Biden and Obama and G.W. Bush all did this as well, and they did not appear to believe they had any responsibility to decide for themselves whether a course of action was legal or constitutional.
Occasionally, they admitted they didn’t have the constitutional power to pursue an action, but then would try to implement it anyway. One example: Biden’s “forgiveness” of student debt. Another: Bush signed the McCain-Feingold campaign finance bill even though he said he thought it was unconstitutional. At the time, there were commentators who believed this was an impeachable offense.
This is a change. Presidents used to believe they had an independent duty to “preserve, protect, and defend the Constitution of the United States.” It is, after all, a commitment they make in the oath of office they take upon their inauguration. Thus, they would restrain themselves from taking actions if they felt they were overstepping their legal bounds. No more.
*
Trump’s first showdown issue, one that is already in the courts, is his attempt to end birthright citizenship, the largely-accepted doctrine that a baby born on U.S. soil is an American citizen regardless of the immigration status of the baby’s parents. He is trying to do this by means of an executive order.
The relevant provision of the U.S. Constitution is found in Section 1 of the 14th Amendment, which 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.”
Passed in 1865, the primary purpose of this Amendment was to make clear that former slaves were now citizens of the U.S. It effectively overruled the Dred Scott decision, which had said they were not.
The key phrase here is “subject to the jurisdiction thereof.” Since an Executive Order cannot overrule or ignore a Constitutional Amendment, Trump’s argument is that he is merely interpreting the phrase (in a way that no one has interpreted it before). He is claiming that a baby of illegal immigrants is “not subject to the jurisdiction” of the United States, so that baby is not a citizen.
Since 1865, the phrase has been interpreted to mean that a baby born in the U.S. to a foreign diplomat does not thereby become a U.S. citizen. Because of diplomatic immunity, the diplomat is mostly not subject to the jurisdiction of U.S. authorities, and his family is also viewed as immune.
Native Americans were the other category of people deemed not “subject to the jurisdiction” of the U.S. because they were regarded as citizens of their various tribal nations and subject to the jurisdiction of tribal courts. They became citizens through an act of Congress passed in 1924, but most were not U.S. citizens prior to that time.
But every other baby became a citizen instantly. Over the years, various courts have had to interpret the language of the 14th Amendment and have uniformly viewed children born on U.S. soil to be citizens from birth. The primary authority on this point is an opinion of the Supreme Court in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898).
Mr. Ark was born in San Francisco of Chinese parents who were living (“legally domiciled”) in California. Years later, the parents returned to China to live, and some years after that, their son traveled to China to visit them. Upon returning to San Francisco, Mr. Ark was denied admission to the country. The case proceeded against the backdrop of the Chinese Exclusion Act of 1882, which excluded Chinese immigrants from entering the U.S.
In a 5-4 decision, the Court ruled that, based upon the plain language of the 14th Amendment, Mr. Ark was a U.S. citizen and could not be denied entry. He had been born in the United States and had been “subject to the jurisdiction thereof.”
There are legal scholars today who distinguish the Ark decision because Mr. Ark’s parents were legally present in the U.S. The doctrine, they argue, should not apply to children of illegal immigrants. This distinction was not discussed in the Ark opinion, and the concept of “illegal immigrant” really did not exist in 1898, at least not as the term is used today.
Some confusion arises because the word “jurisdiction” itself has several meanings. For example, a British tourist traveling through America is subject to most of the same laws I am. If he kills someone, he can be tried for murder, and if he causes a car accident, he may be liable for damages. On the other hand, he doesn’t have to register for the draft or sign up for jury duty, and he can’t vote in our elections. The fact there are different meanings of the word “jurisdiction” opens the door to confusion (or even dishonesty), about the meaning of the 14th Amendment.
The argument made by those who would define birthright citizenship out of existence is that illegal immigrants who come to the U.S. and birth a baby are not subject to our jurisdiction because they are subject to the jurisdiction of, let’s say, Guatemala, and the U.S. doesn’t even know they’re here. This may be a fair observation, but it is irrelevant because we are not interested in the citizenship of the parents, we are only interested in the citizenship of the baby.
The question that is never answered by those who want to eliminate birthright citizenship is: why wouldn’t the kid be subject to the jurisdiction of the U.S. government? Guatemala doesn’t even know he exists, but America does. He will have a birth certificate, a social security number, and he will enroll in a school in a few years. He will probably be claimed as a dependent on somebody’s 1040. He will take a driving test and get a license. He will register for the draft. While he might be accepted as a citizen of Guatemala if he requests that status or if his parents request it on his behalf, he does not automatically or instantly become a citizen there.
According to the plain meaning of the language in the 14th Amendment---“persons born…in the United States and subject to the jurisdiction thereof….” ---the baby is a citizen.
And let me tell you something about Clarence Thomas and the other conservative justices of the Supreme Court. They like plain language. Giving legal voice to the plain language is what “originalism” is all about.
In searching for the meaning of language in the Constitution, originalists look to the original language and what it meant at the time it was used. That is why Roe v. Wade had to be overturned, because the words “abortion” and “privacy” do not appear in the Constitution and are not even hinted at by the original language. For similar reasons, “persons born in the United States” will be interpreted to mean what it meant in 1865, which is the same thing it means today. Its crystal-clear meaning will prevail. Trump and his legal crew will tell you it meant “black people born in the United States” or “former slaves born in the United States,” but that is not what it says and there is no chance this Supreme Court will interpret it that way.
Birthright citizenship will be upheld 9-0 by the Supreme Court.
Copyright2025MichaelKubacki
Posts
