Posted on February 2, 2025

Trump’s Executive Order on Birthright Citizenship Is Legally Sound

Josh Hammer, Los Angeles Times, January 30, 2025

{snip} “He can’t do it!” the critics have invariably howled in decrying President Trump’s landmark Day 1 executive order upending the status quo on birthright citizenship {snip}

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Our debate today thus depends on whether, in 1868, foreign citizens or subjects — whether here legally or illegally — were considered “subject to the jurisdiction” of the United States.

They weren’t.

In the post-Civil War Republican-dominated Congress, the 14th Amendment was intended to constitutionalize the Civil Rights Act of 1866. Rep. James Wilson (R-Iowa), who was then House Judiciary Committee chairman and a leading drafter of the 14th Amendment, emphasized that the amendment was “establishing no new right, declaring no new principle.” Similarly, Sen. Jacob Howard (R-Mich.), the principal author of the Citizenship Clause, described it as “simply declaratory of what I regard as the law of the land already.”

The relevant part of the Civil Rights Act of 1866 reads: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” In other words, “subject to the jurisdiction thereof” necessarily excludes those “subject to any foreign power.” As then-Senate Judiciary Committee Chairman Lyman Trumbull (R-Ill.) said during the ratification debate, “subject to the jurisdiction” means subject to the United States’ “complete” jurisdiction — that is, “not owing allegiance to anybody else.”

And so the 14th Amendment, properly understood, does not constitutionally require that a child born in the U.S. to noncitizens be granted citizenship. {snip}

This understanding was unchallenged for decades. In the “slaughterhouse cases” of 1873, Justice Samuel Miller interpreted the Citizenship Clause as “intended to exclude from its operation children of … citizens or subjects of foreign States born within the United States.” And in the 1884 case of Elk vs. Wilkins, Justice Horace Gray held that “subject to the jurisdiction” means “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”

It’s true that Gray inexplicably reversed course in an oft-cited 1898 case, United States vs. Wong Kim Ark. Over a powerful and compelling dissenting opinion, Gray held that there is some level of birthright citizenship for U.S.-born children of lawfully present noncitizens. But even in that wrongfully decided case, the court emphasized that its holding was limited to children of “resident aliens” who were under “the allegiance” of the United States. {snip}

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