Two Federal Courts Issue Injunctions Against Trump's Birthright Citizenship Executive Order

The two rulings highlight the weaknesses of Trump's legal position.

(NA)

Two federal district courts - one in Maryland and one in Washington - recently issued injunctions blocking Donald Trump's executive order denying birthright citizenship to children of undocumented immigrants and those in the US on temporary visas. The Washington decision was written by Judge John Coughenour (a Reagan appointee), and the Maryland one by Judge Deborah Boardman (appointed by Biden). Between them, the two rulings do a good job of highlighting the weaknesses of Trump's position on this issue, which goes against the text and original meaning of the Fourteenth Amendment, and longstanding precedent. As Judge Boardman summarizes, "[t]he Executive Order flouts the plain language of the Fourteenth Amendment to the United States Constitution, conflicts with binding Supreme Court precedent, and runs counter to our nation's 250-year history of citizenship by birth."

Reason's Jacob Sullum has a helpful summary and discussion of the two rulings here.

I have previously written about this issue here, here, and here. One key point worth reiterating is that many of the arguments put forward by the administration and its supporters would also have allowed denial of birthright citizenship to many formerly enslaved blacks (even though giving them citizenship was the main purpose of the Birthright Citizenship Clause), and to children of permanent resident legal immigrants, as well. The latter is a logical implication of the administration's argument that birthright citizenship is denied to children of parents who, by virtue of being citizens of another nation, owe that government "allegiance."

The administration will appeal these rulings and the legal battle will continue, possibly all the way to the Supreme Court. So far, however, courts have forcefully rejected the government's weak arguments.

 

Comments

[AmosArch]

So Ilya sort of inadvertently reveals that the birth clause was for enslaved people in the Reconstruction era and not to help people come in and drop anchor babies into the infinite future?

[Davy C]

Yeah, that was its purpose. And the purpose of "subject to the jurisdiction thereof" was not to exclude the children of immigrants, legal or otherwise.

[Roger S]

That phrase was considered synonymous with "and not subject to any foreign power". Birthright citizenship is for children of citizens, and of slaves and others permanently residing in the USA.

[Josh R]

Leaving aside the phrase was not considered as you say so, why aren't aliens residing permanently in the USA subject to a foreign power? After all, they are still citizens of another country.

[cssteve]

I'm wondering if the "subject to the jurisdiction thereof" should be read plainly - can the government assert jurisdiction over them. So the children of diplomats (with immunity) and invaders would not be allowed, as the government can't control them.

It strikes me that if someone walks across the border and hides, you can make a case they aren't subject to the jurisidiction. But if they are given asylum or are caught and paroled, they are.

This isn't the EO's position, just a guess as to what this will become.

[Magister]

Why would they hide except that they're subject to the jurisdiction of the United States? You know, subject to being arrested and criminally prosecuted if they violate laws, unlike diplomats or invading armies..

[Krayt]

All criminals try to hide. It sure isn't because they're not subject to jurisdiction that way.

[Magister]

Some criminals don't try to hide. But hiding is definitely an admission that they are subject to jurisdiction.

[David Nieporent]

Or they don't want Danny Glover to revoke their diplomatic immunity.

[Katall]

Common sense is that it meant to exclude diplomats, and native Americans,who were viewed as members of sovereign tribes, separate from the United States government, and were considered foreign nations with their own distinct political systems. They were exempted from taxes, and, on tribal land, still are not subject to many laws.

[David Nieporent]

So Ilya sort of inadvertently reveals that the birth clause was for enslaved people in the Reconstruction era and not to help people come in and drop anchor babies into the infinite future?

The motive for the clause was to supersede Dred Scott and protect black people (not just formerly enslaved people; Taney in Dred Scott had said that no black people could be citizens.) But they wrote a much broader amendment to codify the common law citizenship rule for everyone.

[MollyGodiva]

Rightfully so.

All children of immigrants were citizen in 1868, thus they must be now. Congress can not create a category of people to deny rights they already had.

[Roger S]

The real issue is what to do with children of aliens on non-immigrant visas, and of illegal aliens. They were never properly considered citizens. I do not think that those in 1868 thought that the 14A made them citizens.

[MollyGodiva]

Then what happened to them, the children of immigrants? Do we have a massive population of Irish, Italian, Germans who are descendants of those immigrants whoes children we’re not citizens?
Answer: they were citizens at birth.

[Roger S]

They can follow naturalization procedures, like other immigrants.

[ButWhatDoIKnow]

I have a copy of a family immigration document, dated 1 October 1838. It’s one of many handwritten entries in a court record book, District of Maryland, District Court Office in Baltimore.
It is one Simon Martin, swearing that “…it is bona fide his intention to become a citizen of the United States and to renounce forever all allegiance and fidelity to every foreign Prince Potentate State and Sovereignty whatsoever and particularly all allegiance and fidelity to the King of Bavaria.”
I have numerous subsequent examples of naturalization documents (specifically, the "Declaration of Intention" and "Petition for Naturalization") that include substantially the same text — abjuring all allegiance to the immigrant’s country of origin and its then-relevant ruler.
Wives and minor children "piggybacked" on the husband's declaration and petition, and did not submit separate documents.
Even today, the OPENING phrase of the current form of the the Oath of Allegiance of a new citizen of the U.S. carries substantially the same language:
https://www.uscis.gov/citizenship/learn-about-citizenship/the-naturalization-interview-and-test/naturalization-oath-of-allegiance-to-the-united-states-of-america
Note that, today, MINOR children are assumed to SHARE the allegiance of the parent(s), and if >14 yo take the oath along with their parents; if <14, they are issued a certificate. Why should "just born" children be categorized and treated any differently? For me, that would be one more argument and justification for revoking the current policy of "birthright citizenship."
Here's some Wiki info:
https://en.wikipedia.org/wiki/History_of_laws_concerning_immigration_and_naturalization_in_the_United_States

[David Nieporent]

For me, that would be one more argument and justification for revoking the current policy of "birthright citizenship."

It is not a "policy" that can be "revoked." It is a constitutional command.

[Dr. Ed 2]

The solution is simple -- a lifetime ban on anyone related to them ever being in the US.

[David Nieporent]

I do not think that those in 1868 thought that the 14A made them citizens.

I mean, that's true in that those people were always considered citizens; the 14th amendment didn't "make" them such. But the 14th amendment was expressly written to confirm that they were.

EDIT: I should clarify that the concepts of "immigrant visa" and "illegal alien" and such didn't exist in 1868, but the 14A was written to confirm the common law rule that the residency of the parents was irrelevant.

[hobie]

So that kinda makes Baron an anchor baby. But what about half of the rubes commenting here? Most likely they are anchor babies of anchor babies of anchor babies. All are diluting (per Tucker) the pure, Downs blood we now cherish

[Dr. Ed 2]

My folk arrived in 1674...

[Frank Drackman]

OK John Smith, I’ll humor you, like I’d do with a Mongoloid, that was 350 years or roughly 14 “Generations” ago and as the number of your Grandparents increases exponentially with each generation that means you had some 16.000 great great……grandparents
They all arrived in 1674?
Actually with your level of dullness it wouldn’t surprise me,

Frank

[Krayt]

It doesn't take too much math to realize there aren't enough people on Earth, much less centuries past when the pop was much lower, to show your ancestral tree must fairly quickly have criss cross overlap between branches.

[Roger S]

The main argument against Trump's order is some dicta in a sloppy 6-2 1898 Scotus opinion. Whatever you think of that case, it only involved the child of lawful permanent residents. It says nothing about our current situation.

Somin confuses the categories with "birthright citizenship to children of undocumented immigrants". There are no undocumented immigrants at issue here. Immigrants have documentation.

[MollyGodiva]

However SCOTUS likes to look at the original meaning of the Constitution, and the original meaning of 14A covered the children of all immigrants.

[JoeFromtheBronx]

as does a reasonable application of other means of constitutional analysis, including textualism.

[Roger S]

The original meaning is hotly disputed. I don't think anything thought that a pregnant woman could illegally enter the USA, give birth, and have that baby being an automatic citizen.

[MollyGodiva]

Why not? There was open immigration back then. What is the practical difference between a pregnant women crossing the border and a woman who gets pregnant soon after she arrives? What benefit would 1868 US have to take the time to exclude from citizenship such a narrow category of people (people born less than 9 months of their mother arriving)?

[Roger S]

No, there was not open immigration back then. Immigrants had to be naturalized. All nations want to control their borders. People in 1868 did not want random babies coming in.

[mike petrik]

Yes, there was open immigration. Naturalization was necessary only for these immigrants to be citizens, but it was not necessary for their children. Did you really attend Princeton?

[bernard11]

No. It's not "hotly disputed," except by assholes like you and your buddies who do pretzel acts to try to make it mean what it doesn't.

[JoeM64]

Yes it is. The 14A did not, for example give citizenship to Indians.

American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.

[JoeFromtheBronx]

"American Indians and their children did not become citizens until Congress"

No. Many American Indians became citizens before then. Congress ultimately provided blanket citizenship. Before then, Native Americans off reservations often became citizens.

People here repeatedly note that there were a few exceptions to birthright citizenship -- children of diplomats, invading armies, and certain Native Americans. There is no real dispute there.

14A, sec. 2 counts Native Americans, "excluding Indians not taxed," for purposes of representation as well.

[RedheadedPharoh]

Apparently these people think that if Indians had left their reservation and had a baby then their babies would be citizens.

I'm not aware of such an easy loophole for them.

[Katall]

I wonder if noncitizen Indians who did not live on a reservation were taxed, i.e., subject to the jurisdiction of the US. If not, then, most probably, their children would not have been citizens.

So, if the illegal aliens are not subject to US jurisdiction and cannot be cannot be taxed (or criminally prosecuted), a salient point might be made. So, illegal aliens come and murder our citizens, the worst case is you are sent back from whence you came.

This plays out for diplomats. And may also apply to invading armies, whose soldiers are prosecuted under the law of war, not laws applicable to civilians.

[David Nieporent]

There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.

Nobody claims that the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are. Everyone agrees that it excluded Indians, diplomats, and invading armies.

[David Nieporent]

The original meaning is hotly disputed.

In much the same way that the question of whether the moon landing was faked is hotly disputed: there are knowledgeable people on one side, and dishonest/loons on the other.

I don't think anything thought that a pregnant woman could illegally enter the USA, give birth, and have that baby being an automatic citizen.

You are mistaken.

[Krayt]

The main argument against Trump's order is some dicta in a sloppy 6-2 1898 Scotus opinion

dicta n Something someone just flabberty blabbers out of his or her mouth, as if with authority.

[David Nieporent]

There was no "dicta," and there was nothing "sloppy" about it, and it directly speaks to our current situation.

Immigrants have documentation.

Except the ones who don't. An immigrant is anyone who moves to another country. Lawfully or unlawfully.

[JoeFromtheBronx]

The citation in comments to "lawful permanent residents" underlines the breadth of the EO. As a previous post noted:

Last night's order outlined two categories of individuals born in the U.S. who do not automatically receive citizenship, in the White House's view. The first is a baby whose mother was unlawfully present in the U.S. and whose father was not a U.S. citizen or lawful permanent resident at the time of that baby's birth. The second is a baby whose mother's presence in the U.S. "was lawful but temporary" and whose father was not a U.S. citizen or lawful permanent resident at the time of that baby's birth.

https://reason.com/2025/01/21/trumps-birthright-citizenship-order-doesnt-just-apply-to-undocumented-immigrants/

We are not even merely talking about so-called "illegals" here. Birthright citizenship is allegedly denied to children of lawful residents. A sort of "sins of the parents" philosophy is applied to those legally present at their birth. A case of mission creep.

The "temporary" status at birth is not fixed. People with that status might eventually have permanent status or even become citizens.

A final thought is that the reach of the 1898 opinion applied to children of those whose parents were here in violation of immigration laws. The parents might be expelled but the children born on U.S. soil were birthright citizens. The issue regularly arose at the time. It is not a novel thing.

Racist opponents of the 14A flagged the possibilities of the citizenship clause. Their spirit continues today.

[Michael P]

You act very surprised that non-immigrant visas should mean what they say.

[Mr. Bumble]

It's so much easier that way.

[Sarcastr0]

Did you read his comment? Nothing seems to misunderstand the visa. Hence the "sins of the parents" bit.

Meanwhile, you act like the 14A doesn't say what it says.

[Mr. Bumble]

"Meanwhile, you act like the 14A doesn't say what it says."
Of course you mean it doesn't mean what you say it says.

[Sarcastr0]

Neither your nor Michael address the text, which on it's face is about birthright.

You just try and point elsewhere.

[Michael P]

I read it. You must have missed the bit where he relied on wishes and possibilities to pretend that "temporary" status should translate to birthright citizenship.

[Sarcastr0]

You're mixing up the parent and kid.

[Michael P]

Not at all.

Birthright citizenship is allegedly denied to children of lawful residents. A sort of "sins of the parents" philosophy is applied to those legally present at their birth. A case of mission creep.

The "temporary" status at birth is not fixed. People with that status might eventually have permanent status or even become citizens.

It's all premised on might-eventually-have-beens and bad reading.

[TwelveInchPianist]

"You act very surprised that non-immigrant visas should mean what they say."

It does seem odd to read the constitution as depriving Congress of the power to admit temporary workers, students, tourists, etc. with the proviso that any children born here whose other parent is similar situated would not become citizens.

The alternative, if Congress were inclined to prevent temporary visitors from passing birthright citizenship to their children, would be to ensure that women who were likely to give birth were not physically present in the US.

Or perhaps, to remove jurisdiction from the baby for a period of time around their birth.

[Josh R]

Given the plain meaning of "subject to the jurisdiction," (*) it is the opposite of odd that Congress cannot pass that proviso through ordinary statute.

(*) I understand some have challenged that plain meaning, but at best for them, it means the text is unclear and it would still not be odd.

[TwelveInchPianist]

Odd as a matter of policy, obvs.

Of course, we allow people to renounce their citizenship, which is fundamentally inconsistent with the text of the fourteenth amendment. And Congress passed a law allowing such renunciations nearly contemporaneously with the 14A.

[JoeFromtheBronx]

"we allow people to renounce their citizenship, which is fundamentally inconsistent with the text of the fourteenth amendment"

The text provides them with the right to citizenship.

Rights regularly can be rejected. People have the right to a lawyer, which they can waive.

The right to alienate and join a new nation was long held to be present. The different views held by the British caused problems back in the early years of the Union.

It is not "fundamentally inconsistent" with the text. The text does not compel a reading that citizenship is permanent even if someone wants to revoke their citizenship.

[TwelveInchPianist]

The text doesn't say anything about a right to citizenship:

"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 resided."

Can you point to the part that is consistent with some persons born or naturalized in the United States, and subject to the jurisdiction thereof, not being citizens of the United States?

[Josh R]

It strikes me as a "right" that someone gets automatic citizenship by virtue of being born in the USA, where "right" means something you are due without any action on your part. I see no problem with a law permitting renunciation of such a right.

[TwelveInchPianist]

"I see no problem with a law permitting renunciation of such a right."

The problem is found in the plain meaning of 14A. It says, "All persons...are citizens." Under your reading, not "all persons" who meet the criteria are citizens.

I agree that it is odd that you can't renounce your citizenship, but there it is in black and white.

[Sarcastr0]

A thing happens. Said thing confers a status. Said status is reversable.

Statement may also be read as said thing is a continual, ongoing thing. This is a strange reading, with many odd results.

People taking the second reading in order to invalidate the first are more throwing chaff than making an argument.

[TwelveInchPianist]

Reframing a bad argument in broken English doesn't make the argument any better.

If "said status" were reversable per the text, then some persons to whom "said thing" had happened would not have "said status." But the text says that "all persons" to whom "said thing" has happened have "said status", which is inconsistent.

[Sarcastr0]

I was reducing it to the essence. If you have an issue with my characterization, make it.

If "said status" were reversable per the text
Now we are getting into nonsense territory. The Constitution doesn't say a lot of things that were assumed. What is the judicial power? Can exceptions to rights be made for people in prison? Sovereign immunity.

The argument that 'it doesn't appear in the text' is on it's own incoherent for a frameworking document like the Constitution.

[TwelveInchPianist]

"I was reducing it to the essence."

It didn't help.

"Now we are getting into nonsense territory. The Constitution doesn't say a lot of things that were assumed."

OK, but if you want to argue that there's an extra-textual power for Congress to allow renunciation of citizenship that's at odds with the text, people are going to argue that there's a similar power to prevent birthright citizenship is some cases where it might be at odds with common sense.

[JoeFromtheBronx]

Your continual use of terms like "doesn't say anything" is problematic. The 14A says certain people are citizens.

Birthright Citizenship is a "right." It is constitutionally established. It brings with it various privileges and immunities. Including the ability to be POTUS. That is a typical definition of what "rights" are.

So, yes, it "says something" about a "right" to citizenship.

Can you point to the part that is consistent with some persons born or naturalized in the United States, and subject to the jurisdiction thereof, not being citizens of the United States?

Yes. As I said, there was traditionally an understanding, which is not fundamentally inconsistent with the text, of an ability to revoke citizenship. Citizenship is established. A right to a lawyer is established. It can be alienated in various cases.

Now, yes, arguably the text can be interpreted to not allow that. Some argue, for instance, a person cannot waive their right to a lawyer. But that isn't how the text is understood officially. And it is a logical application.

[TwelveInchPianist]

"Your continual use of terms like "doesn't say anything" is problematic."

What I said was "the text doesn't say anything" in response to your invocation of the plain text.

"So, yes, it "says something" about a "right" to citizenship."

The text doesn't say anything about a right to citizenship that can be renounced. Now, "it" might say something about a renounceable right to citizenship outside the four corners of the text, but automatic birthright citizenship is on much shakier ground outside of the four corners of the text.

"there was traditionally an understanding, which is not fundamentally inconsistent with the text"

Repeating it doesn't make it true. "All persons" is inconsistent with "some persons"

"traditionally an understanding, ... of an ability to revoke citizenship."

Not in English common law. Renunciation of citizenship was an American invention.

[Sarcastr0]

There a ton of things the Constitution doesn't say but is assumed by common sense or practice.

You being obtuse on purpose to try and come at textualism won't really change the practice of textualism.

It will make you look obtuse.

[TwelveInchPianist]

"There a ton of things the Constitution doesn't say but is assumed by common sense or practice."

And there it is.

You're moved from claiming that the plain text of the Constitution mandates your reading spouting that you think people who agree with you look obtuse. FWIW, I think you guys look obtuse too.

[Josh R]

I support a policy of birthright citizenship for anyone with a residence of at least one year in the USA. And shockingly enough, I don't think that is odd.

Nor do I think it is odd for Congress to have statutory power to determine who gets in while withholding that power on who has birthright citizenship because the latter could be considered more fundamental than the former.

[TwelveInchPianist]

Supporting such a policy certainly isn't odd. The idea that, if Congress doesn't support such a policy for people of at least one year of residence, or for people with less than a year or no time as a resident, it has to expel such people before they give birth? Well, that seems odd, as a policy matter.

It seems odd that Congress can't allow women with medical complications to come temporarily to the US to give birth unless it is willing for the kid to be a citizen.

Perhaps there is more leeway in the enforcement clause than previously explored.

[Sarcastr0]

The thing you two want has been made hard by the Constitution.

That isn't odd; it happens all the time.

That you think this means the Constitution has been read wrong, and it actually kowtows to your desires, is the odd part.

[TwelveInchPianist]

I support birthright citizenship generally, but it's not clear that the constitutional is as clear as you guys think. The fact that a literal reading would produce an undesirable result is evidence that the framers didn't intend the literal reading.

And as I point about above, we don't interpret it literally. Perhaps the enforcement clause gives Congress some leeway with respect to renunciation of citizenship, but who knows what other leeway it gives them?

[Sarcastr0]

You're saying 'the Constitution assumes this other thing; that means the clear text maybe isn't so clear.'

That remains a bad argument. Even made in good faith, that's not how Constitutional interpretation functions. Both due to longstanding practice, and plain logic.
An affirmative thing said is not rendered unclear by assumed other thing not being said. Otherwise nothing can ever mean anything.

[TwelveInchPianist]

I'm saying that we allow Congess to remove citizenship from some people who would normally be covered by the plain text of the 14A, and it's not settled how far that power extends.

[David Nieporent]

I'm saying that we allow Congess to remove citizenship from some people who would normally be covered by the plain text of the 14A, and it's not settled how far that power extends.

No, we do not in fact allow Congress to do that. We allow people to do that for themselves; Congress can't do that.

[TwelveInchPianist]

We allow Congress to allow people to do it, if you want to get super picky.

[Josh R]

It seems wrong to me as a matter of policy that Congress must cannot permit the woman in without also having her child become a citizen. But it does not seem odd to me that Congress is limited by the text of the 14th Amendment to what I think is bad policy.

City of Boerne v. Flores precludes Congress from defining the substance of the 14th Amendment.

[TwelveInchPianist]

"But it does not seem odd to me that Congress is limited by the text of the 14th Amendment to what I think is bad policy."

It's not odd that Congress is constrained by the text of the 14A. But as demonstrated by the renunciation of citizenship example, they're not constrained as much as the text might make it appear.

[Josh R]

I would not hold your breath in assuming that because voluntary renunciation is permitted by the 14th, that implies anything about what "subject to the jurisdiction" means. The argument for the former (*) has no bearing on the argument for the latter.

(*) In Afroyim v. Rusk, the Court held the government may not take away 14th Amendment citizenship. But, a voluntary renunciation is not in effect an act of the government. The law that recognizes such renunciation was merely needed as a practical matter to grant the person's desire.

[David Nieporent]

"You act very surprised that non-immigrant visas should mean what they say."

Of course it means what it says. But since the child is not here on a non-immigrant visa, it's not really relevant to the discussion.

[Krayt]

Don't you hate it when politicians apply a "sins of the parents" philosophy?

[EllaWilson]

Your lies of omission are still lies.

[Riva]

Fortunately, the issue will not be resolved by confused, political trial court judges, or by confused, political law professors. Although I am somewhat less confident on the outcome because it will eventually be subject to review by some confused, political S. Ct. justices.

[Roger S]

That's right, it does not matter what these trial court judges say, or even the appeals to circuit courts.

[ducksalad]

Might not make it to the Supreme Court. It's very likely every single lower court will rule against, and all the SC has to do is refuse to hear it.

[Alpheus W Drinkwater]

It's hard to see how that wouldn't happen, since all lower courts should still be bound by Wong Kim Ark. SC only would only grant cert to overrule that, right?

[Katall]

I am a bit confused by Trump's argument. It seems to be that illegal immigrants, like ambassadors, are not subject to US jurisdiction. That would mean, like ambassadors, they cannot be prosecuted for crimes, i.e., as with people with diplomatic immunity, the only punishment illegal aliens who commit crimes is deportation? Am I missing something?

[ducksalad]

The children in question are not illegal immigrants because they haven't committed any crime. Trump's order, technically, only applies to the children.

If you take that to mean he's given the children (only) diplomatic immunity, he failed to specify an end date but I suppose he could declare them all persona non grata in some future executive order.

But I believe the favorite argument of the nativist crowd is that "jurisdiction", only in this exact one spot in the constitution and nowhere else, has a special meaning having nothing at all to do with being subject to our courts and laws, rather, it has to do with "allegiance" that is inherited from parents, but despite being inherited, can be changed by the President.

When asked why the text doesn't mention "allegiance", much less the parents or the President, they'll tell you you're stupid and a traitor.

Actually no, you haven't missed anything. It's nonsense and neither argument is likely to impress the Supreme Court. I think Trump will back down when the SC rules against him, and the true nativists here will be severely unhappy. The non-nativist MAGAs will just say they never really cared about it.

[Area Man]

“But I believe the favorite argument of the nativist crowd is that ‘jurisdiction’, only in this exact one spot in the constitution and nowhere else, has a special meaning having nothing at all to do with being subject to our courts and laws, rather, it has to do with ‘allegiance’ that is inherited from parents, but despite being inherited, can be changed by the President.

When asked why the text doesn't mention ‘allegiance’, much less the parents or the President, they'll tell you you're stupid and a traitor.”

Yeah, that pretty much sums it up. And for good measure, after I read your comment, I went through the Constitution to see all the times it mentions “jurisdiction.” In every other instance—*including the 14th Amendment itself*—jurisdiction has the same meaning we use it today, and it would be nonsensical to use it to mean “allegiance” or anything even close to that concept.

I’m somewhat open to amending the Constitution to exclude the children of illegal immigrants and transients (e.g., tourists) from birthright citizenship. But we haven’t done that, so the clear meaning of the Citizenship Clause—let alone Supreme Court precedent—controls.

[Riva]

It’s a good thing you’re not in charge of defining the issue for those not inclined to thoughtlessly accept the pro-birthright citizenship group mindset. Before the reconstruction amendments, the term jurisdiction NEVER appeared in the constitution in the context of the phrase “subject to the jurisdiction thereof,”and even Wong Kim Ark, for all it’s meandering dicta got wrong, was not so casual in its review. By the way, Wong Kim Ark limited the scope of its holding to those having “a permanent domicil and residence in the United States.”

[Area Man]

So, when the 13th Amendment said slavery would no longer “exist within the United States, or any place subject to their jurisdiction,” it meant any place subject to their allegiance? Because that doesn’t make any sense.

[Mike Hansberry]

"By the way, Wong Kim Ark limited the scope of its holding to those having “a permanent domicil and residence in the United States."

Yes and furthermore the Wong Kim Ark court said:
"In Fong Yue Ting v. U. S., the right of the United States to expel such Chinese persons was placed upon the grounds that the right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, is an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare; that the power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of congress, and to be executed by the executive authority according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the constitution, to intervene; that the power to exclude and the power to expel aliens rests upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power; and therefore that the power of congress to expel, like the power to exclude aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or congress may call in the aid of the judiciary to ascertain any contested facts on which an alien's right to be in the country has been made by congress to depend."

Persons who enter the country in defiance of law are more akin to invaders than to legal immigrants. It would be odd to extend a benefit (citizenship for their children) resulting from an illegal act.

[Josh R]

Odd or not, the text of the Constitution supports it because the unlawfully present are subject to the jurisdiction of the USA. Additionally, Trump's EO withdraws birthright citizenship to the children of parents who are lawfully present on a temporary basis.

[Mike Hansberry]

Can you point to a case concerning the citizenship of children born in the US of parents who were barred from entering the US but did so illegally?

The same text supported denying citizenship to the children of Indians whose allegiance remained with their tribe, despite the children having been born on us soil. It also supports denying citizenship to the children of foreign invading armies.

[Josh R]

Of course there is no such case. But, the reasoning in Wong strongly suggests the children of unlawfully-present parents are subject to the jurisdiction of the USA.

Indians were denied because if they commit a crime they cannot be tried in American courts due to treaties. I'm not certain if that applies to crimes committed on reservations (which are in the USA) or anywhere in the USA. But, it matters not. Even in the more limited case, Indians are not fully subject to the jurisdiction of the USA while they are in the USA. The same cannot be said of the unlawfully present.

And again, you did not comment on that part of Trump's EO which claimed the children of lawfully-present temporary visitors (students, workers, tourists, ...) also do not get birthright citizenship.

[David Nieporent]

Persons who enter the country in defiance of law are more akin to invaders than to legal immigrants.

1) They are in no way akin to invaders. Do you people not understand what an invasion is? It's an attempt to seize sovereignty of territory from another country. Illegal immigration is not anything like that. It's an attempt to live here, not to challenge the government.
2) The children — which is who we're talking about — did not enter the country in defiance of law.
3) Citizenship for the child is not a benefit to the parent; it's a benefit (right) of the child.

[Mike Hansberry]

1"They are in no way akin to invaders. Do you people not understand what an invasion is? It's an attempt to seize sovereignty of territory from another country. Illegal immigration is not anything like that. It's an attempt to live here, not to challenge the government."

Sovereignty, as explained in Wong Kim Ark, entails the ability to exclude aliens. Persons who enter the country illegally are challenging the sovereignty of the government. The difference is one of degree.

2"The children — which is who we're talking about — did not enter the country in defiance of law."

You must be able to see that such reasoning would apply as well to the children of foreign ministers, invading armies, and Indians not taxed. The circumstance of the parent affects the child, else the "and..." in 14A would have no meaning at all. Hey judge, it is not my fault my dad is one of those guys.

3"Citizenship for the child is not a benefit to the parent; it's a benefit (right) of the child."

This is plainly silly as any parent will know. If a child is awarded some benefit, that is also a benefit to the parent whose goal is of course to provide as much as possible for their children. It also explains why so many people come here seeking a better life for themselves and their children, and why some others come here only to have their anchor babies.

[David Nieporent]

Sovereignty, as explained in Wong Kim Ark, entails the ability to exclude aliens. Persons who enter the country illegally are challenging the sovereignty of the government. The difference is one of degree.

No, they're not challenging any sovereignty; they're just breaking the law. Just like bank robbers are not challenging any sovereignty and are not invaders, neither are illegal immigrants.

[damikesc]

Ambassadors can be removed and named persona non grata.

[DWB]

Somin lies -- it is known

[Sarcastr0]

Thanks for taking the time to post that!

[Harvey Mosley]

Thanks for taking the time to post that!

[Krayt]

"Everyone lies." -- Gregory House, MD

[Mr. Bumble]

Injunction Junction What's Your Function?

[Dr. Ed 2]

F***ing up the country, as best we can.

It's time to start deporting judges...

[Dr. Ed 2]

Time to start impeaching Federal judges...

[Katall]

Why? What did Justices Thomas and Alito do now?

[Dr. Ed 2]

They are Justices, not Judges.....

The Left really seems to want a third Civil War....

[Philistine]

So... when Article II, Sec. II talks about "Judges of the Supreme Court," there aren't any? And, I guess, there aren't an Article III Judge ("both of the supreme and inferior Courts"), and so aren't actually granted a lifetime appointment?

[SRG2]

Yeah but that would require Dr Ed to be familiar with parts of the Constitution other than 2A

[Daddyhill]

Both you and Jacob Sullum agree that the two judges came to the same conclusion via the same reasoning. I wonder why you feel it necessary to name the presidents who appointed them. The two judges agree with each other. So it must be true either that they are both wrong or both right. Either way, knowing who appointed them is more or less irrelevant. If the two were not in agreement, one of them must be right and the other wrong. In that case it might also be true that partisan affiliation influenced neither of them, but it's equally likely that it did. If so, we cannot deny that partisan politics do play a role, possibly a decisive role, in how our judges reach their conclusions. So I have to ask, despite knowing the answer already: "Is this the state of judicial affairs that we can readily accept, in an offhand manner of 'It is what it is'?"

[rswallen]

> I wonder why you feel it necessary to name the presidents who appointed them

This is a lose-lose situation; name the president who appointed them ("what are you trying to imply?") vs don't name the president ("what are you trying to hide?").

Would be more interesting to hear what the professed judicial philosophy of the judges are vs the philosophies expressed through their opinions (but that takes lots of analysis).

[Frank Drackman]

Don't they realize that keeping Birthright Citizenship just makes it even more imperative that Illegal Aliens have to be stopped at the border, and the ones that are already here,
as my Idle, the Late Great Hannibal Lecter, I mean Rabbi Meir Kahane said,
"They Must Go"

Frank

[Frank Drackman]

Gonna drop the Nuke-ular (HT “W”, Jimmuh Carrtuh”) so if Obama Bin Laden, KSM, Pooty Poot Putin, managed to send their pregnant wives to Amurica, and they squeeze the bastards out the second they step on Amurican soil, all of the kids would be Full Blooded Amurican Citizens, eligible to be POTUS?
What’s that phrase I’m thinking of?
“Are you fucking crazy?!”

Frank

[DaveM]

Why would we even want our courts to decide what the conditional "and subject to the jurisdiction thereof" means? There's no way they can reach an objective decision about something that is both anachronistic AND ambiguous.

All the courts have to go on now is he-said/she-said types of arguments: "Yes it does! No it doesn't".

Bah. What do we have a legislature FOR, if not to resolve political arguments? In 1924, Congress declared that Native American Indians were US citizens, even though they had previously been specifically excluded under the 14th Amendment. There's nothing stopping them from similarly declaring again what the meaning of this phrase is.

This is not the first time I've suggested this. Better informed minds than my own convinced me then that changing the language of the 14th Amendment would require another amendment.

But what I am now suggesting requires no change to the language, merely to its interpretation. Again, if Congress could declare an interpretation in 1924, certainly it could do so again a hundred years later. The language of the Amendment doesn't have to change, Congress just has to pick which meaning is the "official" one.

And in the meantime, the process to replace that obscure phrase should definitely be started. The Constitution uses sweeping language, but for the most part it is not ambiguous. Ambiguity invites trouble.

[Sarcastr0]

Baseline to the concept of judicial review is a baseline agreement that words the the Constitution meant things independent of politics.

It seems a pretty normal assumption to make given that we use words all the time without Congress bothering to weigh in on every conversation.

Trying to drag words like invasion and jurisdiction into 'Trump gets to decide' is just end-state populism. Getting rid one one more of the checks that hold up our republic.

[Area Man]

Congress didn’t naturalize the Indians by interpreting the 14th Amendment. It has an independent authority to set naturalization rules under its Article I, section 8 authority. The 14th Amendment set a baseline that certain people would be citizens at birth—people born in the U.S. and subject to the jurisdiction thereof—but Congress can still grant birthright citizenship above and beyond that baseline. For instance, someone born abroad to two U.S. citizen parents is typically also a citizen at birth by congressional statute. The 14th Amendment is irrelevant to their situation.

[rswallen]

I can already see certain people salivating at the prospect of legislating that the interpretation of "the freedom of speech" does not include speech they don't like and "the right to keep and bear arms" does not extend to modern projectile weapons. Alternatively, that "twice" in the 22nd amendment should be interpreted to mean 16.

This is a bad idea.

[David Nieporent]

Why would we even want our courts to decide what the conditional "and subject to the jurisdiction thereof" means? There's no way they can reach an objective decision about something that is both anachronistic AND ambiguous.

1) I don't know what is "anachronistic" about it, but it is not in fact ambiguous.
2) It is emphatically the province and duty of the judicial department to say what the law is. In other words, because interpreting the law is literally the job of the courts.

What do we have a legislature FOR, if not to resolve political arguments?

This is not a political argument; it's a legal one. The question is not who should be citizens; that would indeed be a question for Congress. The question is who the constitutional text makes citizens.

In 1924, Congress declared that Native American Indians were US citizens, even though they had previously been specifically excluded under the 14th Amendment. There's nothing stopping them from similarly declaring again what the meaning of this phrase is.

You're confused about what happened here. Congress did not "declare an interpretation" in 1924. I don't even know what you think you mean by that. Congress simply passed a law to give a group of former non-citizens, citizenship. It did not repeal or amend or interpret the 14th amendment when it did so.
2) I reiterate: it is emphatically the province and duty of the judicial department to say what the law is. Not the province or duty of Congress.

[Brett Bellmore]

I think this is a guaranteed loss for Trump all the way up to the Supreme court. And a probable loss at the Supreme court, too.

But the fight is a good setup for a constitutional amendment to restrict birthright citizenship.

What people don't get is that Trump isn't expecting to win all these fights. Some of them he's expecting to lose, but in the process bring issues into the public consciousness, where the law and/or constitution might end up changed as a result.

Watch for it, he's going to be pushing for a constitutional convention soon.

[Dr. Ed 2]

I'd like to see a repeal of the 11th Amendment.

[ducksalad]

Number of states required to sink an amendment restricting birthright citizenship: 13

Number of states filing lawsuits against Trump's anti-birthright executive order: 18

[Alpheus W Drinkwater]

You could be right, but I still think the simpler explanation is that in his view SCOTUS is in the bag for him, and he will get a favorable ruling on anything.

[Brett Bellmore]

Meanwhile, the more legally critical, and much more likely to be resolved in Trump's favor, injunction is this:

Injunction against DOGE having access to Treasury payment system.

Requires the Treasury to cut off DOGE's access to the payment records, and for everybody involved to destroy any information they've already downloaded.

The deep state is REALLY allergic to having its spending practices exposed.

[Dr. Ed 2]

I was hoping that Trump could prevent the Third Civil War -- I am no longer convinced of that.

[Sarcastr0]

Libertarian Brett: fuck privacy.

You did see the order is based on PII, right?

[Dr. Ed 2]

PII which others already had access to.

[Michael P]

In which Gaslight0 comes in strongly endorsing that a judge should second-guess which Treasury Department employees should have access to data that the Treasury Department collects in order to do its core functions.

[Sarcastr0]

Treasury Department employees, eh?

[damikesc]

He barred the SEC OF TREASURY from accessing it, you realize.

[Sarcastr0]

That's not what it says.

"The States’ lawsuit challenges a new policy by the United States Department of the Treasury, at the direction of the President and the Secretary of the Treasury, which, as alleged, expands access to the payment systems of the Bureau of Fiscal Services (BFS) to political appointees and “special government employees.” The States contend that this policy, inter alia, violates the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq., in multiple respects; exceeds the statutory authority of the Department of the Treasury..."

Not about the Secretary's access.

[ducksalad]

Actually, I've seen some sources I trust saying this does apply to the Secretary, who is a political appointee.

If it was some kind of long-term order I'd agree with Trumpists here that it's overreach. Obviously it's normal for the Treasury Department to create its own regulations and procedures , subject to the law including the APA. Like me having access to my own bank account.

But a court can temporarily freeze my bank account temporarily if it's alleged that I'm about to do something irreversible and illegal. Not forever but long enough to have a proper hearing and sort things out. The states alleged there are violations of law going on, and things need to get sorted out. It's reasonable to tell Bessent and Team Musk they can't create "facts on the ground" before then.

[TwelveInchPianist]

Slightly OT, but I'm not sure what happens if a diplomat knocks up a local gal, who might not even know he's a diplomat. Is the kid a citizen and subject to the jurisdiction of the US? Does the mom have any rights at all?

[Michael P]

The most extreme case would be that this turns out the same way as if the child was born outside the US. According to https://www.uscis.gov/policy-manual/volume-12-part-h-chapter-3, a child born outside the US, post-2017, out of wedlock to a US citizen mother (at the time of the child's birth) if the "U.S. citizen mother was physically present in the United States or one of its outlying possessions for at least 5 years before the child’s birth (at least 2 years of which were after age 14)." No other requirements attach.

[Frank Drackman]

Wow, sounds complicated, just abort the Bastard

[JoeFromtheBronx]

"If one parent was an accredited diplomat, but the other was a U.S. citizen or non-citizen U.S. national, then the child was “born . . . subject to the jurisdiction of the United States,” and is a citizen."

Also:

"Children born in the United States to accredited foreign diplomatic officers do not acquire citizenship under the 14th Amendment since they are not “born . . . subject to the jurisdiction of the United States.”[2] DHS regulations, however, have long allowed these children to choose to be considered lawful permanent residents (LPRs) from the time of birth."

https://www.uscis.gov/policy-manual/volume-7-part-o-chapter-3

[friscoda]

See this link for Richard Epstein's view. He disagrees with Ilya.
https://www.civitasinstitute.org/research/the-case-against-birthright-citizenship

[Mike Hansberry]

https://www.govinfo.gov/content/pkg/BILLS-103s1351is/pdf/BILLS-103s1351is.pdf

Harry Reid making sense, or Even a broken clock...