An Executive Order (EO) issued by President Trump denying automatic citizenship to children of illegal migrants and subsequently blocked temporarily by a federal judge on claimed constitutional grounds will likely wind up in the U.S. Supreme Court for final resolution.
The controversy presents complicated ideological and legal conflicts and questions that cut to the heart and soul of our nation’s founding principles and core values.
By way of framing key arguments, Trump's executive order asserts that children born to parents without legal status in the U.S. are not subject to U.S. jurisdiction and are, therefore, not entitled to U.S. citizenship.
The EO also extends to children born to parents with temporary legal status in the U.S., such as foreign students or tourists.
Within days of signing the EO, the Trump administration was hit with at least four separate lawsuits from coalitions opposed to it, including nearly two dozen state attorneys general, a group of pregnant mothers and immigrants' rights groups, including the American Civil Liberties Union (ACLU).
In temporarily blocking the EO, U.S. District Judge John Coughenour asserts that it violates Section 1 of the 14th Amendment of the Constitution which states that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof (emphasis added), are citizens of the United States and of the State wherein they reside."
Here, interpretive dispute centers on ambiguity regarding the original intended meaning of being “subject to the jurisdiction.”
The entire concept of birthright citizenship follows two different foundational doctrines: a “Right of Soil” (jus soli) based upon where a person is born, and a (“Right of Blood” (jus sanquinis) tracing to Roman law and based on the authorized nationality of a child’s parents.
Traditional U.S. birthright citizenship combines elements of both doctrines but leans more to the soil criteria.
Advocates for the EO remind us that the 14th Amendment was ratified in 1868 for the explicit purpose of granting citizenship to former Black slaves after the Civil War. In doing so, it overruled the U.S. Supreme Court decision of Dred Scott v. Sanford (1857), which held that African Americans, free or enslaved, could not be U.S. citizens.
Although there weren’t any unauthorized immigrants at that time of ratification, birthright citizenship has nevertheless been applied to U.S. immigration for well over a century, dating back to a landmark 1898 Supreme Court ruling in United States v. Wong Kim Ark.
Wong, who was born in San Francisco to Chinese parents, was barred from entering the U.S. — under the Chinese Exclusion Act — while returning from an overseas trip in 1890.
The court ruled in a 6-2 decision that because Wong was born in the U.S. and his parents were not "employed in any diplomatic or official capacity under the Emperor of China," the 14th Amendment makes him an American citizen.
In dissent, Justices Fuller and Harlan argued that the English common law basis of the decision did not bind the U.S., where only Congress is constitutionally authorized to define limits of what it means to be subject to United States jurisdiction.
According to the American Immigration Council, revoking birthright citizenship would “require amending the U.S. Constitution, or for the U.S. Supreme Court to diverge from centuries of established precedent and legal principles that date back to before the founding of this country."
And whereas amending the Constitution would require a steep climb two-thirds majority agreement in both houses plus Senate ratification by three-quarters of states, it might also be noted that two-thirds of U.S. voters currently favor deportation of illegal immigrants.
There can be no doubt that granting birthright citizenship to children of illegal immigrants is having substantial demographic impacts.
Pew Research Center data in 2022 estimates that 1.3 million U.S.-born adults are children of immigrants without legal status.
As reported by the non-profit Center for Immigration Studies, they accounted for about 7% of total U.S. births in 2023 and exceeded the number of children born of legal noncitizens.
The approximate quarter-million number born of illegal parents that year exceeds the total number of births in all but two states taken individually.
Although more recent statistics are not yet available, Biden administration open border policies have likely driven those illegal immigrant birth numbers higher, and perhaps much higher because legal status is never explicitly identified in data collected in the Census Bureau’s American Community Survey (ACS).
As circumstances currently stand, birthright citizenship incentivizes illegal border crossings by unvetted individuals while enriching criminal cartels and unfairly penalizing those who wait patiently in line.
Sadly, there is no perfect solution to a long-existent problem raised to become an epic national disaster through a self-serving partisan strategy to entice more Democrat voters.
Greatfully, the Biden open border plan backfired, contributing to Trump’s reelection landslide, but tragically, not before wreaking terrible tolls on our national security and domestic safety.
Larry Bell is an endowed professor of space architecture at the University of Houston where he founded the Sasakawa International Center for Space Architecture and the graduate space architecture program. His latest of 12 books is "Architectures Beyond Boxes and Boundaries: My Life By Design" (2022). Read Larry Bell's Reports — More Here.
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