In President Trump’s executive order denying citizenship to anchor babies, the Left has found fertile ground for legal challenges. But we should avoid taking their shrill pronouncements at face value.
Austin Sarat, “the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College,” loudly declares that Trump is beginning an “anti-constitutional regime.” A brief moment of reflection would reveal that Trump 45 obeyed the Courts down the line while Sleepy Joe stumbled along with his handlers, working very hard to steer the ship of state directly contrary to the Supreme Court’s directives. A brief glance at vaccine mandates, rent suspensions, and student loan abrogation should be enough to illuminate the dark forces of Democrat Diktats.
The short version of Trump’s order says that having one foot on American soil while the baby is crowning is no longer enough to declare citizenship. And he’s right. Yes, there are lots of legal voices that will declare this to be settled law. By the time you finish this summary, you’ll know differently. For a detailed education, study John Eastman’s law review paper.
YouTube screen grab.
The argument comes from this sentence in section 1 of the 14th Amendment: “All persons born or naturalized in the United States, AND SUBJECT TO THE JURISDICTION THEREOF, are citizens of the United States” (emphasis added for clarity).
For any whose high school diploma didn’t involve basic grammar, this is a conjunctive construction. Part One says, “born in the USA!” But that’s not enough. You also must satisfy “subject to the jurisdiction thereof.” Right now, you may be thinking, “Here we go again.” Brace yourself.
The 14th Amendment was primarily intended to make freed slaves into US citizens. This was important because shortly before the Civil War, Chief Justice Roger Taney flatly stated in his Dred Scott decision that slaves were property, not part of “the people.”
After the war, Congress passed the Civil Rights Act of 1866, which included language that US-born children of parents who were “subject to a foreign power” (foreign citizens!) were to be denied citizenship. This same Congress drafted the 14th Amendment with its “subject to the jurisdiction” language. It seems they mean the same thing. Or, as Senator Lyman Trumbull put it, “not owing allegiance to anyone else.”
In the Slaughterhouse Cases (1873), the Court wrote that “children of…citizens or subjects of foreign States born within the United States” were not citizens. In Elk v. Wilkins (1884), the Supreme Court ruled that to receive birthright citizenship, the parents must “not merely [be] subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and not subject to any foreign power,” as well as owe the U.S. “direct and immediate allegiance” (emphasis added).
These are pretty clear statements that someone who swam the Rio Grande or overstayed a visa can’t be the parent of a US citizen simply because the Pampers were first applied north of the border.
In 1898, the Court considered the plight of a young man of Chinese descent. His parents had immigrated to the US, set up a permanent, legal residence in the US, and were operating a business. In 1873, their son was born in San Francisco. In 1895, he visited China.
On his return, though, Wong Kim Ark was denied entry on the grounds that he was not a citizen. This was because his parents were Chinese citizens and were excluded from citizenship by the Chinese Exclusion Acts. The rubber meets the road in the “Question Presented” by the Supreme Court. It is the controversy that the Court will hear to decide what the law is.
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment of the constitution: ‘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.’ (Emphasis added)
The Court notes that because the Constitution does not define the terms “citizen” and “subject to the jurisdiction,” they must be understood in the light of the language with which the framers (including those who wrote the 14th Amendment) were familiar. In legalese, they are “terms of art.” Just to make life more interesting, “domicile” is another term of art.
The decision itself is forty-five pages long. It spills vast quantities of ink retelling the history of birthright citizenship, primarily in Europe. In short, if you’re born there, you’re a citizen there according to the rule of “birth within the allegiance.” Thus, “British subject” means any person who owes permanent allegiance to the crown. Shortly after the Founding, this legal principle began to change to the rule of descent or blood. Its interaction with American thinking has never been fully adjudicated.
Part of the problem is that the conjunctive “born…and subject to” requires that the two qualifiers be separate and distinct. If they aren’t, why would the drafters of the 14th Amendment put both in the text? That’s not entirely clear from the decision. If they’re the same, Trump’s wrong. But that’s not what the Wong Kim Ark decision hinges on.
The Question Presented requires that Wong Kim Ark’s parents be “domiciled” in the US. That term describes a “lawful permanent residence.” The illegal aliens in New York hotels have a temporary address, not a lawful permanent residence.
No illegal alien can have a lawful permanent residence in the US because they are here unlawfully. No visa holder can, either, since they are here on a temporary basis. Only a citizen or a green card holder can have such a residence. Wong Kim Ark’s parents were the functional equivalent of green card holders. If the domicile of the alien is the deciding criterion, then Trump is right.
But wait! There’s more! If we just cover shipping and handling, we can guarantee the end of birthright citizenship for illegal aliens! It seems that Trump has had extremely good legal advice. The decision includes this little gem. “…the children of aliens within territory in hostile occupation… would not become its citizens at their birth…”
President Trump signed two orders of interest here. The first declares an “invasion emergency” at the southern border. The second is the birthright citizenship order. Grok suggests that this was the sequence because “the emergency declaration would set the stage for further immigration policies like ending birthright citizenship.”
I can hear the weeping and gnashing of teeth from the Left side of the aisle. “The flood of illegal aliens is not an invasion!” Certainly, the “migrants” weren’t an armed invasion!
Surprise, surprise, surprise! What they’re missing is that the Militia Act of 1795 delegates the power to declare an invasion to the President. I know; it’s 230 years old, but it’s still the law. This is confirmed in US v. Abbott (2024). In short, declaring an invasion is a political question, and the Courts have no jurisdiction over it.
From Trump’s Declaration, it’s clear that the illegal aliens are hostile invaders, and any location where they reside is under hostile occupation. Therefore, children born to them are not entitled to birthright citizenship. Game, set, and match.
Of course, it would be foolhardy for anyone to claim victory until the Supreme Court bangs its gavel. There’s enough material for an army of lawyers to claim paychecks for a couple of years. But I think that Trump will get the better of this fight, just like he has won almost every challenge so far.
It’s time for some popcorn.
Ted Noel is a retired physician who posts on social media as Doctor Ted. His Doctor Ted’s Prescription podcast is available on multiple podcast channels.
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