Is it Constitutional to Eliminate Birthright Citizenship?

Supreme Court Will Likely Find It Is Despite Protest From Seattle Judge

One of Trump’s Day One Executive Orders was on birthright citizenship. It’s called Protecting The Meaning And Value Of American Citizenship, The White House, January 20, 2025.

It states in part that

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:

Section 1. Purpose. The privilege of United States citizenship is a priceless and profound gift. The Fourteenth Amendment 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.” That provision rightly repudiated the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race.

But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.” Consistent with this understanding, the Congress has further specified through legislation that “a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text. [More]

This an argument I’ve been familiar with for many years. In 2001, I edited VDARE.com’s seminal article Weigh Anchor! Enforce The Citizenship Clause. (Also linked here.)

The author, a New York lawyer, wrote:

One simple reform would end a powerful incentive luring would-be illegal aliens from around the world to the United States: adjust the currently tortured interpretation of the right to citizenship expressed in the 14^th Amendment. Absurdly, current federal policy is to confer American citizenship automatically on any child (with very narrow exceptions, none applicable to illegal aliens) born within the United States. The legal status of the parents is deemed irrelevant. We must accept that a baby born to foreign parents five minutes after they crept over the border illegally is just as American as a baby whose parents are both Americans and U.S. citizens and whose ancestors have been here 350 years.

This new "American" is not the end of the story, either. The U.S.-born child becomes an anchor in American soil that will permit his parents and minor siblings to remain and, later, his grandparents, aunts, uncles, in-laws and all of their children to immigrate legally, not to mention any friends and acquaintances from home who may follow them illegally. All of their children born here will also be considered American citizens. Neither the Census Bureau nor the INS can say how many aliens have availed themselves of this gift already. We can only be sure that many millions more will also, unless Americans end it.

The fact that the illegal parents have a US citizen child makes them harder to deport, and that factor leads to these kids being called “anchor babies.” In the campaign leading up to the first Trump Presidency, Trump was attacked at a press conference by a guy named Tom Llamas (the American-born son of legal Cuban immigrants) who is big on immigration and likes to talk about being from immigrant stock, though he’s nothing like the mass of illegals—he’s a white Cuban whose father is a dentist.

In the press conference, Llamas (pictured) was trying to correct Trump’s speech on this:

Llamas: "Are you aware that the term "anchor baby," that's an offensive term. People find that hurtful ..."

Trump: "You mean it's not politically correct and yet everybody uses it? Say, y'know what ..."

Llamas: "Look it up in the dictionary. It's offensive."

Trump: "Give me a different term, give me a different term. What else would you like to say?"

Llamas: "'The American-born child of an undocumented immigrant'."

Trump: "You want me to use that? OK. No, I'll use the word 'anchor baby'."

Trump is not big on having his speech corrected, and the decision to call something offensive isn’t really up to dictionaries.

You can read more here: Trump: 'I'll Use the Word Anchor Baby'— ABC News' Tom Llamas asks the Republican candidate why he insists on using an offensive term when talking about American children born from undocumented immigrants, August 20, 2015.

Whether it’s offensive or not, the arguments against the constitutionality of birthright citizenship are extensive: see Citizenship shouldn’t be a birthright, by Michael Anton, Washington Post, July 18, 2018.

At around that time in 2018 when Anton published his much hated article above. Trump was thinking of targeting the birthright citizenship thing (which I prefer to call “the current misinterpretation of the Fourteenth Amendment,” and promised an Executive Order: Exclusive: Trump targeting birthright citizenship with executive order, Axios, October 30, 2018.

However, he didn’t follow through, possibly being talked out of it by someone. Four years in the wilderness have apparently convinced him of the value of quick action.

In Seattle, Washington, a judge named John Coughenour, a senior United States district judge of the United States District Court for the Western District of Washington, has blocked Trump’s new EO with a 14-day injunction, after several “Democrat-led states” sued.

“Senior” in this case means “very old”— Coughenour was born several months before Pearl Harbor, and is more than a year older than Joe Biden.

Here’s what Coughenour said about Trump’s EO, according to the New York Times:

In a hearing held three days after Mr. Trump issued his executive order, a Federal District Court judge, John C. Coughenour, sided with Washington, Arizona, Illinois and Oregon, the four states that sued, signing a restraining order that blocks Mr. Trump’s executive order for 14 days, renewable upon expiration. “This is a blatantly unconstitutional order,” he said.

“Frankly,” he continued, challenging Trump administration lawyers, “I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order. It just boggles my mind.”

Later in the article the New York Times explained the government’s point about the “subject to the jurisdiction” clause in the Fourteenth Amendment:

The 14th Amendment refers to people who are “subject to the jurisdiction” of the United States. The judge asked the government whether undocumented immigrants’ children who committed a crime would be subject to U.S. law. Mr. Shumate responded that they would be “subject to the jurisdiction with respect to the laws of this country, but not with respect to the citizenship clause of the 14th Amendment.”

“Citizenship is different,” Mr. Shumate said.

The Judge wouldn’t even listen:

To that, Judge Coughenour’s decision was emphatic: “I’ve been on the bench for over four decades,” he said. “This is a blatantly unconstitutional order. Where were the lawyers when this decision was being made?”

Legal scholar Ilan Wurman said on Twitter that

Maybe the birthright citizenship order will ultimately be held unconstitutional, but I find it highly embarrassing for a judge to say something so unequivocally at a preliminary stage without the slightest acknowledgement that there is an entire literature that disagrees.

Even worse is he probably doesn’t know that he just doesn’t know. Which is why he shouldn’t have permitted such an expedited hearing. Anyway, maybe he’ll be proven right, but to think this is open and shut is plainly wrong.

Well, this is at least partly due to Leftist domination of the discourse—the number of conservative arguments that Judges have never heard of is very large, because they weren’t allowed to be published in law journals or the Mainstream Media.

There’s also the point that if you’re still on the bench at 84, even if you had heard the arguments about 14^th Amendment jurisprudence and jurisdiction—say during the Lyndon B. Johnson administration when you were in law school—you might very well have forgotten it.

As Wurman said “he probably doesn’t know that he just doesn’t know.”

But Trump has been quite successful in appealing this kind of thing, even before he totally remade the Supreme Court. Let’s wait and see if Justices Roberts, Thomas, Alito, Kavanaugh and Amy Coney Barrett can figure this out.

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