A Short Primer on Birthright Citizenship.

why are we talking about birthright citizenship today?

Ok, so why am I all of a sudden interested in the 14th Amendment? Well, next week, the Supreme Court of the United States will finally be hearing oral arguments on the merits of President Trump’s executive order on birthright citizenship. Believe it or not, attempting to redefine what it means to be a citizen in the United States was among the first things President Trump did when he entered office for his second term.

On January 20, 2025, President Trump issued an executive order called “Protecting the Meaning and Value of American Citizenship.” In it, he excludes from US citizenship those born in the United States to certain undocumented immigrants. Many lawsuits were filed challenging this EO as being blatantly unconstitutional. Those are finally coming to head on April 1 at 10 EDT, when SCOTUS will hear at least one hour of oral arguments from both sides (i.e., the Trump Administration and those opposing the EO).

Why is Trump trying to change what it means to be a citizen?

Presently, anyone born in the United States is automatically granted full citizenship. When a child turns 21 years old, they are able to sponsor their parents, opening the door to their permanent residency or even naturalization–assuming that parent was not undocumented for longer than a period of 6 months.

Practically speaking, though, many undocumented parents who have children in the US stay in the US to afford their children the benefits that adhere to their US citizenship. In some cases, the child may not have status in the native countries to which their parents belong, and therefore, staying in the US is the child’s only practical option. Obviously, many parents will elect to stay with them, even if they are undocumented.

There are even small cottage industries dubbed “birth tourism,” agencies that will help people plan pregnancies in the US, in order to obtain automatic citizenship for their children. It’s estimated that, per year, roughly 33,000 babies are born to women on tourist visas.

In general, the number of children born to undocumented immigrants has gone down dramatically since its peak in 2007. It is estimated today that children born to undocumented immigrants account for only 7% of all US births per year.

What does the 14th Amendment actually say?

The relevant portion of the 14th Amendment states:

Section 1. 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.

Thus, the plain language of the 14th Amendment provides for only two requirements for you to be a US citizen at birth: (a) you must be born within the United States, and (b) you must be “subject to the jurisdiction” of the United States. Presumably, the first of these-“born in the United States”-is relatively straightforward to you. There is no magic behind these words–they are plain and intentionally plain.

It’s the second requirement–“subject to the jurisdiction” of the United States–that’s providing fodder for some mischief. So let’s take a closer look at that.

Why did the framers of the Constitution include the second requirement?

Because they didn’t want to inadvertently create citizens of people that were never meant to be citizens: (a) children of foreign diplomats and (b) children of citizens of an enemy occupying the United States (not just present, but occupying). How do we know this was the purpose behind the second requirement? Because the Supreme Court–the final arbiter on what the Constitution means–has already said so. In United States v. Wong Kim Ark, the United States denied entry to a man who was born to Chinese nationals in the United States. After returning from a visit to China, where his parents resided, he was told he was not a citizen, despite being born in the US, because his parents were Chinese, and therefore, he needed to literally go back to China.

The Supreme Court rejected this, stating that because he was born in the United States and his parents were not “employed in any diplomatic or official capacity under the Emperor of China,” the Citizenship Clause of the Fourteenth Amendment automatically made him a U.S. citizen. With respect to the “subject to jurisdiction” requirement, the Court explained: “[t]he real object of the Fourteenth Amendment of the Constitution, in qualifying the words, ‘All persons born in the United States’ by the addition ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words …, the two classes of cases – children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State…”

Then what is Trump’s argument?

To be perfectly honest, he doesn’t have a lot of legal arguments because this is settled law. And I’m not just saying this because I don’t like the man–I’m saying this with all 20 years of my training as a litigator to bear. When SCOTUS has ruled, so directly and so specifically, on this issue already, it’s pretty much an open and shut case.

Trump’s main argument is that children of undocumented immigrants are not subject to the jurisdiction of the US and therefore fail to satisfy the second requirement. But, as I explained above, the Supreme Court (which even President Trump cannot ignore without risking a constitutional crisis) has already held that this requirement only works to exclude the children of foreign diplomats or enemy occupants. There’s nothin’ about undocumented immigrants (and no, even Trump wouldn’t try to argue that the 23-year-old mom with a newborn is an “occupying alien enemy”). With no real legal arguments to rely upon, Trump is falling back on a couple of weak arguments based upon the legislative history (arguments that have already been made and REJECTED by SCOTUS) and executive authority (i.e., “I can do it because I’m President!”).

Specifically, Trump argues that the legislative history of the 14th Amendment demonstrates it was meant only to apply to a specific class of people previously denied citizenship in the United States: the children of freed slaves. While it is true that the genesis of the 14th Amendment was, indeed, to ensure the Black children were granted citizenship, Congress specifically and intentionally chose not to limit the language of the 14th Amendment to Black Americans. They could have easily drafted the 14th Amendment to provide citizenship only to certain classes of people residing in the United States. Instead, they chose to write the 14th Amendment as broadly as possible: “All persons born in the United States…”

As a result, the Supreme Court has held: “The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”

But he’s the President. Can’t he do this under his executive authority?

No. While the President enjoys immense power and immunity in exercising that power, even the President is bound by the US Constitution. He can issue as many executive orders as he wants to, but if they are found to contain provisions that are unconstitutional, those provisions–and possibly even the entire executive order–will not have the effect of law. [Technically, Executive Orders aren’t “laws,” per se, because they don’t go through the ratification process of Congress; but, these days… they sure do feel like laws until someone like the ACLU finally challenges them.]

If the President doesn’t like a part of the Constitution (e.g., he wants to replace “All persons born in the United States” with “Certain persons born in the United States”), then he must go through the proper channels to amend the Constitution. That protocol is, predictably, set forth in the Constitution, itself and requires, generally speaking, a 2/3 majority vote in Congress. This happens almost never. In fact, despite over 11,000 proposals to change the Constitution, only 27 amendments have been made to our nation’s charter. That’s a success rate of 0.0002%. That is by design. The founding fathers made it hard on purpose to change the Constitution precisely because they didn’t want it changed just because someone–even a very powerful someone–didn’t like it.

Well, if it’s so obvious, then why did SCOTUS agree to hear the case?

You may not already know this, but the Supreme Court gets to choose which cases it hears. As a general rule, they tend to pick cases that are controversial or involve unsettled law. But here’s the thing–even if the President can’t “overrule” or “veto” the Supreme Court, the Supreme Court can “veto” itself. We saw this with the overturning of Roe v. Wade. With the right mix of justices, Trump is hoping that this Supreme Court will essentially overturn parts of Wong Kim to allow his Executive Order to stand. In short, Trump is asking SCOTUS to figure out a way to fit Trump’s round peg into the 14th Amendment’s square hole. It’s a gamble, for sure, but Trump has little to lose here.

So, should we be worried that SCOTUS even agreed to hear this case? I had the same question and I asked the ACLU! Yup! I got to participate in a 1-hour long presentation by the ACLU (whose lawyers will be among those arguing against Trump) and their response was that we shouldn’t read too much into the fact that SCOTUS accepted this case. It’s very possible (and even likely) that they did so because this matter is so polarizing and potentially disruptive (I mean… think about it–what will happen if we can no longer rely upon our birth certificates to prove citizenship!). This gives them an opportunity to clarify this issue, once and for all.

What happens if Trump’s EO is allowed to stand?

Trump’s Executive Order was entered on January 20, 2025 and provided for a 30-day grace period before it took effect. Thus, technically speaking, if the EO is upheld, any babies born to undocumented mothers after February 19, 2025 will instantly lose their citizenship. We are talking about hundreds of thousands of babies who will immediately lose their citizenship, significantly add to the population of undocumented immigrants in the US, and, in some cases, be made stateless. In addition, once stripped of citizenship, these infants will lose access to healthcare and welfare.

Moreover, every facet of life in this country that depends, even in part, upon citizenship, will need to change the way it verifies citizenship. This will not just affect voting. This will require changes in healthcare, insurance, education, employment, and more. Both the public and private sectors will be required to expend unthinkable resources–financial and otherwise–to adapt to changing a rule that is nearly as old as America itself.

Can I do anything about this?

This isn’t one of those situations where you “call your senator,” because this is out of the hands of Congress. And, probably for good reason, SCOTUS doesn’t have a hotline for you to leave angry voicemails. However, the ACLU is collecting signatures on their petition and intend to bring that petition to DC when SCOTUS hears oral arguments on this case. Signatures are due by March 27 and you can sign it by clicking below:

Non-Profit Spotlight: Animal Farm Foundation.

Several weeks ago, I had the honor of being Lulu’s “arm candy” at a photo shoot for Animal Farm Foundation. I’m not exaggerating–they really just wanted Lulu, but, as her handler, I was given a special dispensation as her “plus one.” 🤣 I mean, can you blame them? JUST LOOK AT HER!!!

Now, as you may know, I adopted Lulu from a rescue organization. I have no idea what kind of dog she is (though, she’s definitely got some poodle in her…). She was dropped off by her previous family because they could no longer take care of her. I don’t know why. And because I love the bejesus out of Lulu, it’s hard for me not to judge people who do things like this. But, I’ve learned as I get older, just how little we see of the full picture and that judgment is, sometimes, the laziest of choices.

The truth is, many people LOVE their animals, but because of circumstances totally out of their control, they no longer have the capacity to care for them. These external circumstances can include:

• Astronomically high grocery expenses, forcing you to choose between feeding yourself or your dog.
• Healthcare costs that put you instantly into tens of thousands of dollars in debt.
• ICE raids leading to your detention or the detention and/or deportation of your co-parent.

These are precisely the kinds of circumstances that Animal Farm Foundation works to guard against. How?

• Partnering with local food shelters and pantries to provide human and pet food so that no one needs to choose between feeding themselves or feeding their animals.
• Helping to safely rehome dogs if you find yourself in a financial emergency and are no longer capable of providing for your animal.
• Fostering animals left behind due to ICE raids, detentions, and deportation proceedings.

In other words, they are doing AMAZING work and I know Lulu was so TICKLED to work with them on this campaign to raise money for these initiatives.

If you are able to donate something, please check them out below:

Birthright citizenship is an important issue to me. You might wonder why, since I was born and raised in Chicago to two US citizens. I have nothing to fear even if Trump’s Executive Order were allowed to stand. Believe it or not, I think what America was created to be–a diverse haven for the oppressed–is a really good thing. Did we always live up to those ideals? No. In fact, we pretty much lit them on fire almost immediately after we put them on paper by brutalizing the indigenous, enslaving millions, and telling women to just shut up and look pretty when they wanted to vote. But, somehow, amazingly, the values of this nation–as set forth in the Constitution–have remained relatively unchanged.

Let me repeat: our Constitution has a .0002% amendment rate. In law school, I took a comparative law class and the professor, a young German man, explained just how astonishing this is compared to just about every other constitutionally formed state on the planet. Essentially, our Constitution remains virtually unchanged.

Changing who is American will fundamentally change what is America.

The founding fathers intentionally decided to make citizenship not easy, but simple. If you’re born here, you’re American. Why? Because they all believed in the American dream–the same dream my mother and father had when they immigrated here. It’s heartbreaking to see that so many people no longer want to keep that dream available to anyone other than those who’ve already achieved it.

But, hopefully, by now, you realize that this case isn’t only about citizenship. While this is an incredibly important issue, by itself, it’s not the most important issue in this case, because the Constitution doesn’t say we can never change it. If we decide, as a people, that we need to change how to define an American, so be it. There’s a way to do that. The more pressing question buried in all of this is whether one man should be allowed to effectuate that change. We are a democracy. Not a fiefdom. Not a monarchy. We must take a stand and say, No. No one, not even the president, gets to make that decision–a decision that literally defines us as a nation–with the stroke of his pen. If we the people want to change who gets to the be the people, then, and only then, should such a central tenet of the Constitution be revised.

Until that time, it should remain simple and straightforward. As it was intended.

Wishing you all the best,
-Joanne

Questions and Comments