What SCOTUS Should Consider About Birthright Citizenship for Children of Illegal Aliens



After President Trump’s bombshell announcement that he intends to end the controversial policy of birthright citizenship for the children of illegal aliens, pundits immediately began offering their varied opinions on whether or not the executive branch can lawfully end the policy via executive action, and if birthright citizenship should extend to illegal aliens. However, the fact remains that any action attempting to end the policy – by anyone – will almost certainly be met with lawsuits and, ultimately, heard by the Supreme Court of the United States (SCOTUS).

If the Supreme Court indeed decides to hear a case on birthright citizenship, there are several important questions that the justices should keep in mind:

  • What does the U.S. Constitution explicitly say about birthright citizenship?
  • What was the original intent of the amendment’s authors?Are there any previous relevant SCOTUS cases that address the topic already?
  • If so, is there any reason why SCOTUS shouldn’t just refer to that decision?

The first sentence of the 14th Amendment to the U.S. Constitution reads: “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.” Many illegal immigration apologists tout this text as an indisputable guarantee that the children of illegal aliens will be U.S. citizens if their parents are born in the United States.

However, many legal scholars note that Senator Jacob Howard, who introduced the 14th Amendment, seemed to indicate that birthright citizenship would not be extended to most foreigners. When introducing an amendment to add the text “and subject to the jurisdiction thereof,” he noted: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” After the question of Native Americans born within the U.S. was raised, he noted that they would not be included either so long as they maintained legal ties with their native tribe. So Senator Howard clearly intended, that in addition to the children of foreign diplomats, the children of other aliens who lack lawful and permanent status in the United States would also be excluded from the citizenship provisions of this amendment

The same senators who passed the 14th Amendment also passed the 1866 Civil Rights Act, which guaranteed citizenship to “all persons born in the United States and not subject to any foreign power.” In other words, those who had not established legal residence in the United States were not offered citizenship. So it makes no sense that the 14th Amendment would contradict the monumental congressional act it was intended to fortify.

Additionally, there are no SCOTUS cases that directly address the issue of birthright citizenship for the children of illegal aliens. The 1898 case most often cited, United States vs. Wong Kim Ark, only addressed birthright citizenship for the U.S.-born children of legal permanent residents.

Since there is no clear text in the Constitution that affords citizenship to the U.S.-born children of illegal aliens, nor case law that sets a sound legal precedent, a strong case can be made that offering birthright citizenship to illegal aliens is, in and of itself, an unconstitutional practice.

For decades, birthright citizenship has been abused by illegal aliens as a way to obtain benefits from the federal government and ultimately legal status through chain migration. Whether by executive order or a Supreme Court ruling, it’s time for this harmful practice to end

About Author

avatar

Spencer joined the Federation for American Immigration Reform (FAIR) in 2015. He conducts research, and writes content for FAIR’s publications and website. He brings previous experience in state politics, gubernatorial and district campaigns, and D.C. political non-profits. Spencer holds a B.A. in Government from the University of Texas at Austin.

9 Comments

  1. avatar

    The 14th amendment was meant to, rightly, insure citizenship to freed slaves. Period! No one envisioned or intended it to apply to any alien who could make it here to have a baby! It should be amended/corrected to end the abuse of this well meaning amendment.

  2. avatar

    Chain migration is another stupid practice. Spouse and minor children…period. Remove the right to any welfare for 10 years and I’m sure someone with 8 kids won’t find coming here all that appealing.
    Also setting up refugee and asylum seekers with housing, food, etc while there are Americans living on the streets is an abomination.
    I can’t believe some smart lawyer hasn’t brought a class action lawsuit against the govenment in favor of American homeless being discriminated against.

  3. avatar

    But we’re The Land of the Big PX! Everything’s free in America, where you don’t have to worry about things like whether there is enough money to pay for things like if there is enough money for free benefits to be lavished on every one of the 7 billion people on the planet who sets foot here, or enough money for free college, free healthcare, etc. Some people in Washington just add some more zeroes on a computer and hit enter and presto! Everyone gets everything they want! Yay!

    Worrying about thinks like being frugal and saving and being able to pay for what you have and not going into too much debt is the kind of thing all those uptight evil dead white people who founded the country like Ben Franklin (wait, like, who was Ben Franklin again?) and who went through the Great Depression and won World War 2 worried about.

    What did they know, we are way smarter and totally cooler and hip than they were because we know that you can progress and just vote for more free stuff and then you get it and everyone from anywhere in the world can come here and get whatever they want and everyone is happier and richer. Yay!

    • avatar

      One BIG problem with giving everything for free to foreigners, both legal and illegal, is that, in our nation, the taking group is constantly increasing with the addition of 2-3 million new needy foreigners entering our nation EVERY YEAR. But American working citizen taxpayers/the middle class, the paying group is growing smaller and smaller. So, America as the welfare state to the world and whoever comes here, is simply not sustainable. Sooner or later it is all coming due and the obvious result for the USA is failure as a nation.

  4. avatar

    The 14th amendment was ratified by the required number of states in 1868. But as noted, constitutional amendments originate in Congress and then are subsequently approved by each state individually. So the 14th was approved in 1866 by the very same Congress that also passed the 1866 Civil Rights Act. The sole reason for the amendment was to make permanent the citizenship of freed slaves so that a future Congress could not undo the legislation passed that year. Essentially a guarantee of what was contained in the 1866 Civil Rights Act. It’s pretty clear from the passage of both that it was all about citizenship for freed slaves and their children.

    And one part overlooked is the end of the “subject to the jurisdiction thereof” clause that says “and of the state wherein they reside”. Does a person who comes here specifically to have a baby become eligible for citizenship and then returns home, aka birth tourism, actually “reside” in a state? No. Does their child? No. Yet they are given citizenship. Right there is proof that the problem is not what the amendment says, but how it has been twisted and assumptions made that in fact have no basis in law.

    • avatar

      At last someone else understand about the birthright issue! That originated with President Abraham Lincoln’s “Emancipation Proclamation” which made all finger slaves citizens.

  5. avatar

    Well, we have a bare majority of justices on the SCOTUS who understand that the “high court’s” proper role is interpretation of the Constitution, its amendments, and legal statutes. If they rule in accordance with those principles, there will be no more anchor babies.

Leave A Reply