Birthright Citizenship: Does Trump Have a Case?

by R.W. Napper, A Gentleman from Tennessee

When the Supreme Court of the United States convenes in October, it will consider the case regarding President Trump’s executive order that abolishes the doctrine of birthright citizenship for the children of illegal aliens. Under the doctrine of birthright citizenship, any child born on American soil is automatically a citizen of the United States. This doctrine has the exception for children born to foreign diplomats representing their nations in the United States. In short, Trump’s order would deny citizenship to the children born to foreigners who entered the county illegally. In essence, the Supreme Court will have to decide if children born to illegal aliens are entitled to birthright citizenship.

Prior to the Civil War and the 14th Amendment, citizenship was determined by the states. In brief, if a person was considered to be a citizen of his state, then he was also a citizen of the United States. Thus, citizenship was controlled by the states.

Following the Civil War in 1865, the 13th Amendment was ratified which abolished slavery throughout the United States. An important question arose: would former slave states withhold citizenship from their newly freed residents? The Republican dominated Congress took action to guarantee citizenship of former slaves by fashioning the 14th Amendment to the U.S. Constitution. Section 1 of the amendment reads as follows: “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.” The 14th Amendment made U.S. citizenship primary and state citizenship a derivative of federal citizenship. The primacy of federal citizenship made it impossible to withhold state citizenship. The primacy of federal citizenship guaranteed the right of citizenship to the newly freed residents.

The 14th Amendment was framed by the Congressional Joint Committee on Reconstruction. It is important to note that the amendment contains two requirements for citizenship: one must be born or naturalized in the United States, AND subject to the jurisdiction of the United States. Today, it is assumed that everyone born in the U.S. is automatically subject to the jurisdiction of the U.S., thus, everyone born in the country is automatically a citizen. If that assumption is true, it seems that there would be no need for adding the “jurisdiction” clause. If the committee had intended that everyone born in the United States would be automatically subject to the jurisdiction of the country, this clause would have been omitted. A key question arises: what did the framers of the amendment mean by “subject to the jurisdiction” of the United States?

In May of 1866, the amendment was being debated on the Senate floor when it was charged that the 14th Amendment would make citizens of Native Americans. A member of the Joint Committee on Reconstruction, Senator Jacob Howard of Michigan, defended the amendment against this charge: “Indians born within the limits of the United States and who maintain their tribal relations are not, in the sense of this amendment, born subject to the jurisdiction of the United States.” Howard’s statement indicates that “jurisdiction” as used in the amendment has a broader meaning than simply born in the geographical United States. This was supported by Senator Lymon Trumbull of Illinois, Chairman of the Senate Judiciary Committee, who held that “subject to the jurisdiction thereof” means “not owing allegiance to anybody else…….subject to the complete jurisdiction of the United States.” Trumbull concluded that Indians were not subject to the jurisdiction of the United States because their allegiance was to their tribes. According to the arguments of Senators Howard and Trumbull, an important part of “jurisdiction” as used in the amendment is “allegiance.” This understanding was underscored in 1884 when the Supreme Court in the case of Elk v. Wilkins ruled that Indians born in the U.S., but a member of an organized tribe were not subject to the jurisdiction of the United States, but to the jurisdiction of the tribe. The court went on to hold that an Indian who renounced allegiance to his tribe did not become subject to the jurisdiction of the United States by virtue of the renunciation. Furthermore, the court held that an alien condition could not be put off at will; it required action of the United States. This would require a naturalization process, or an act of Congress as prescribed in Section 5 of the 14th Amendment.

It should be noted that Congress acted on its Section5 power in 1924 by passing the Indian Citizenship Act.

In his argument before the Senate in 1866, Senator Howard went further. Tethering the meaning of “jurisdiction” to include “allegiance,” he held that children born in the U.S. to families of foreign ambassadors or ministers were precluded from U.S. citizenship. This view was later confirmed by the Supreme Court.

In addition to questions concerning Native Americans, the question of children born on American soil to foreigners arose. Proponents of birthright citizenship for the children of aliens point to the Supreme Court decision in 1898, the United States v. Wong Kim Ark. Wong was born in San Francisco to parents who had immigrated from China. At age 21, Wong returned to China to visit his parents who had returned to China after having resided in the United States for 24 years. Afte a brief visit, Wong returned to the United States but was denied entry on the grounds that he was not a citizen. In a 6-2 decision, the Supreme Court ruled that because Wong was born in the United States, and his parents held no diplomatic post representing the Emperor of China, he was a natural born citizen. This ruling established a concept known as “jus soli”–the valid citizenship claim of children born in the United States of non-citizens.

But wait!!

Wong’s parents entered the United States legally. They did not slip into the country or overstay a visa. They had established a permanent residence in San Francisco and operated a business in that city for three years prior to Wong’s birth. Although they did not seek citizenship, Wong’s parents demonstrated their allegiance to the jurisdiction of the United States by legally entering the country, establishing a legal domicile in California, and obeying the laws of the United States and the state of California. The case of Wong Kim Ark does not address citizenship of children born to parents who enter and reside illegally in the United States. It does not address the citizenship of the children of illegal aliens.

It is important to note that there is no case where the Supreme Court has explicitly held that birthright citizenship has been extended to the children of illegal aliens. For this writer, it is hard to believe that the framers of the 14th Amendment intended to confer citizenship on the children of aliens illegally present in the U.S. when they explicitly denied citizenship to Native Americans.

Does President Trump have a case in using an executive order to end birthright citizenship for the children of illegal aliens? This writer believes that the answer is “yes” and “no.” It is possible that the Supreme Court could declare that birthright citizenship for the children of illegal aliens is unconstitutional. The court could hold that the illegal actions and illegal residency of these immigrants demonstrate a lack of respect for U.S. law and a rejection of complete jurisdiction of the United States. It is also possible that Trump’s use of an executive order regarding birthright citizenship is unconstitutional based on the language found in Section 5 of the 14th Amendment: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” In other words, President Trump exceeded his power and infringed on the power of Congress.

Answers should come from the Supreme Court in the Fall of 2025.