"Some birth certificates would prove citizenship, and others wouldn’t ..."
Really important point that gets at how profoundly destabilizing this would be - and the ripple effects would call into question the citizenship of a LOT of Americans. Because if birthright citizenship didn't mean what we historically thought it meant, now you have to prove that your parents, and their parents, and THEIR parents, etc. had sufficient legal status for citizenship to be conferred by your birth in America. It ends up being a difficult problem of turtles all the way down ...
So in my own case - I'm the third generation in America on my dad's side. I have a birth certificate, but does that count? Well, only if my parents are both provably citizens or lawful residents under this new standard. And that's only true if THEIR parents are also provably citizens or lawful residents. And now that starts getting tricky - my dad's parents were both from immigrant families, who came to America in the early 1900s from what is now Lithuania and Ukraine but were at the time part of the Russian Empire. Would I be able to find enough documentation from this period to verify that they were citizens, and therefore my dad is, and therefore I am? It would be pretty hard!
I don't think it's an exaggeration to say that the Trump Administration would create a massive legal grey area here that would give them an opening to denaturalize a LOT of people who thought their citizenship was rock solid. And if you think "oh they'd never do something so extreme" I will just say that my citizenship depending on Trump and Stephen Miller showing prudent restraint and forbearance is not an ideal situation....
If the Trump Administration wins this case they will have what amounts to a legal precedent for Vance's view that "heritage Americans" count more. Some citizens are more equal than others, if you will ...
Trump has articulated no clear limiting principle that rules out what I am describing. And I wouldn't say, in general, that he's a "limiting principles" kind of guy ...
If it were destabilizing, then all of the other countries with no birthplace citizenship (the overwhelming majority) would be destabilized. It would be relatively easy to draw a line and say everyone born from today onwards is subject to the corrected rule. We have precedent for that. We could perhaps call it "grandfathered in".
"If it were destabilizing, then all of the other countries with no birthplace citizenship (the overwhelming majority) would be destabilized."
That doesn't follow at all. There's a huge difference between a country that never had birthright citizenship and kept its citizenship rules consistent, and one that used to have birthright citizenship but had it change suddenly and retroactively.
It would be good if there were one international standard for this. I don’t have much of an opinion on jus soli vs jus sanguinis so long as all countries operate along the same rules, but they don’t. It’s not right for there to be stateless people.
If there was an international standard it would jus sanguinis. The issue with that approach is that you have large populations of people currently not accepted as citizens in any country. If you carried jus sanguinis forward, that would continue.
I think the 14th amendment is clear and the Trump administration is wrong. But I don't see it be "retroactive" and I'm not sure how you would make any change here and it not be "sudden."
Remember that court rulings are about interpretation of the law, not legislation. With legislation changes, one can say, "Those were the old rules; these are the new ones." With a court ruling, the implication of a change of interpretation is that the previous interpretation was incorrect and should never have been considered the law at all. Thus, a ruling in favor of Trump on birthright citizenship would imply that several people who thought they were citizens never were in the first place. That's where the retroactive aspect comes in.
The Trump Administration is trying to totally upend over a century of settled citizenship law by executive fiat. That's fundamentally just a massively destabilizing thing to do (and that would be true of upending long-settled citizenship law in any country with any system).
This is a common misperception I see about these sorts of highly destabilizing Trump Administration actions. People who share Trump's normative preferences want to give him the benefit of the doubt that, no matter what particular load-bearing pillar of the rule of law he is trying to smash, he will make some reasonable accomodation and things will be OK. But that doesn't address the fundamental problems that (1) smashing load-bearing pillars of the rule of law is bad on its own terms, and (2) an Administration that behaves this way can't necessarily be counted on to pursue reasonable and stabilizing accomodations.
Since those countries have always had this system, I believe the word you're looking for is "unstable" and, uh, isn't that what conservatives say about Europe?
Yes, because the Trump administration is known for its reasonableness and habit of acting in good faith. I'm sure they wouldn't claim that a victory at SCOTUS also authorizes retroactive application of the rule. (Note that the administration's position at SCOTUS, as I understand it, is that they aren't asking for a reversal of Wong Kim Ark, they are arguing that Wong Kim Ark never decided the question at all -- i.e., that there would be no constitutional bar to retroactive application of the rule if Trump chose to do that.)
Suppose the court allows this, and the EO goes into effect.. it's still an EO correct? And just like hundreds of EOs are reversed every four years, one can bounce around being a citizen and non-citizen every 4 years.
And you can imagine someone in labor while a live telecast of an EO signing plays in the background. "PUSH, NOW! or no citizenship" Heckuva way to run a Republic.
Yes, it is an EO and thus theoretically subject to being reversed, although what I suspect would happen if the current EO is allowed to stand is that, if a subsequent President tried to reverse it, SCOTUS (assuming the majority that upheld the first EO is still on the bench) would strike the new EO down as being unconstitutional due to it intruding on Congress' powers under Article I to set rules for naturalization.
The case is not about the executive order. It is about the extent of birthright citizenship. The executive order was just a mechanism to get the issue of birthright citizenship into court. If the Court rules that the children of illegal immigrants, or people here on temporary visas, are not "subject to the jurisdiction" of the US, then none of those people are US citizens, period, unless some statute grants them citizenship.
I wonder how many other commenters are native-born citizens who wouldn’t be so if these rules had been in effect at the time of birth. I am. Also, I really think birthright citizenship is one of the most fundamental components of America’s exceptional greatness and am not willing to cede an inch on it. In short, fuck these people.
My parents both eventually became citizens, but I am not sure they had permanent residency when I was born. In the case of my brother, they certainly didn’t.
I think it is absurd that I might have had to become naturalized under the administration’s order. I know no other country and never spoke anything but English with complete fluency. I would have been a foreigner in any other land.
Ironically, wouldn’t this make naturalized citizens *more* secure in our US citizenship status compared with natural born Americans? I don’t have to rely on my birth certificate or try to prove that my parents were citizens or whatever. I can show you my naturalization certificate! I attended a ceremony and took an oath and everything!
I mean the precedent, history and tradition and practical implications all point that way BUT with this Calvin ball Supreme Court, it’s hard to be certain
I think it's pretty easy to be sure. This doesn't fit with any flavor of originalist interpretation or any strain of conservative legal theory, it doesn't advance any conservative policy goals, and it strengthens the executive at the expense of the judiciary. It's most likely to go down 9-0, with a very small chance of 8-1 or 7-2.
More opportunities for splitting the baby in that one, but yeah -- that one's also a plain old executive power grab and SCOTUS has no reason to sign off on it (other than Bessent wink-wink implying there'd be a constitutional crisis if SCOTUS overturned a President's signature economic policy).
out of curiosity: what was your expected outcome before the presidential immunity ruling?
also out of curiousity: i asked claude what it would predict for the birth right citizenship ruling, and it said 5-4 or 6-3 to strike down the EO with low confidence.
I expected Trump to win on the presidential immunity ruling -- there was literally no way SCOTUS would ever find that a President could be criminally charged for official acts of office -- but I expect the administration to lose this simply because it would implode the federal court system and potentially start a civil war. That said, while the ruling should be 9-0, I will not be surprised to see it being 7-2 with Thomas and Alito taking the opportunity of their vote not making a difference to go full Fox News.
1) In re the federal court system, I have no reason to think that the existing cases deal with every factual/legal permutation that can be conceived of relating to this order and SCOTUS killed off nationwide injunctions, so each affected person will need to file a separate lawsuit unless they can find a class action that covers their situation. Further, depending on the exact wording of the ruling, it would potentially open the door to lawsuits based on theories that the EO's position "has always been the law" and the decision should be given retroactive effect.
2) Literally a couple hundred thousand small children would be stripped of their citizenship immediately by a ruling affirming the facial language of the EO (which operates prospectively only), but what do you supposed the likelihood is that DHS/ICE -- the organizations whose official social media pages are spamming white nationalist propaganda about deporting 100 million(!) "illegals" (a number that presupposes almost every non-white person in the country is an illegal immigrant) -- is going to scrupulously apply the EO in that manner, let alone the possibility that the administration after winning immediately issues a new EO stating that the ruling will be applied retroactively to those born after, e.g., 1986 (the amnesty for illegal immigrants under Reagan), 1965 (the Hart-Celler immigration act that substantially increased immigration from majority non-white countries), etc., etc.?
SCOTUS (correctly) tries to avoid situations where courts are in open conflict with the executive -- like hauling the president and his senior advisors in for depositions or trying to throw them in prison. It creates a really high probability of a constitutional crisis, which is (a) how democracy actually dies and (b) how judges lose the power they currently have and very much enjoy having.
For that reason, I assume any time Trump is personally in some kind of legal jeopardy that the courts will find some flimsy pretext or other for getting him out of legal jeopardy, and they did that with immunity.
If illegal/undocumented immigrants aren’t “subject to the jurisdiction” does that mean they can’t be tried for crimes? Generally those, such as diplomats, who aren’t granted birthright citizenship are also exempt from following American laws through diplomatic immunity.
This is the exact point I've made ever since hearing the stupid “not subject to the jurisdiction of” argument decades ago and I hope one of the justices points it out in a concurrence.
This one drives me insane because the administrations position so obviously contrary to both the legal tradition and the discussion in Congress at the time. I went back and read all the congressional debates and it’s 100% clear the intended effect was to give citizenship to what we would now call “illegals”.
At the time those opposed to the wording worried it would make citizens of “Chinese” and “gypsies”. Rather than denying that, those that voted in favor explicitly said that that was their intention. The record is so clear that people trying to obfuscate it rice me nuts.
This is from a law review quoting the drafter the of amendment:
Senator Cowan renewed his similar objections from the Civil Rights Act from a month earlier, asking: “Is the child of a Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen?”He called these groups “trespassers” who had “no allegiance” to the United States government. Senator Conness of California answered Cowan, declaring that “children of all parentage whatever” born in the U.S. would be citizens under the proposed clause. The phrase “subject to U.S. jurisdiction” would mean granting citizenship for all “human beings born in the United States.”
Conness was not even sympathetic to Chinese immigration. He conceded (unnecessarily and unfairly) that Chinese migrants “all return to their own country at some time or another,” and he conceded that he shared concerns about the increase of Chinese immigration to California. Nevertheless, he confirmed that he supported broad birthright citizenship, confirming the same position he had taken on the Civil Rights Act of 1866
(Edited some formatting since I copied from a pdf)
This misses the biggest issue -- the change would call into question the citizenship of lots of current citizens whose parents were on student visas or work visas.
Sure, the EO as written is not applicable to them, but if Wong Kim Ark is overturned and citizenship is given based on the wording of an EO, the wording can be changed.
(This is also why SCOTUS is not going to overturn Wong Kim Ark.)
Having citizenship determined by EO is complete chaos. What's to stop the next administration from revoking the EO and issuing to passports to anyone born in the USA? And then the administration after that from revoking those passports?
>In a savvy bit of litigation strategy, they argued that if they couldn’t get a nationwide injunction, they should be able to represent a nationwide class.
I am a fan of the ACLU in general, but there was nothing particularly savvy about it. Trump v. CASA explicitly noted that that was an option, and it is a no-brainer for this issue; the key to a class action is that "that the questions of law or fact common to class members predominate over any questions affecting only individual members" which is obviously the case.
The 14th Amendment's definition of citizenship applies ONLY to the child so the parent's nationality or citizenship status is simply irrelevant. It says "All persons born...in the United States...are citizens of the United States..." It does not say "All persons born in the United States of at least one United States citizen...is a citizen of the United States."
The administration's (stupid) view is that the "subject to the jurisdiction" bit is actually saying "has at least one citizen / greencard-holder parent". That view has no basis in history or law, but it's worth understanding the actual (stupid) position.
Birthright citizenship is unusual globally and the UK got rid of it seemingly without too many issues in the 80s. Everyone gets the same birth certificate but the birth certificate doesn't entitlement you to citizenship.
Getting rid of birthright citizenship by Constitutional amendment in the US is workable. Reinterpreting the Constitution by Executive Order is not workable.
Presidents can rewrite Executive Orders whenever they feel like it, and "who is considered a citizen and allowed to live here and vote" is a really foundational legal thing that cannot turn on the whims of the President. Oops, Trump doesn't like you, let's revoke your citizenship today, deport you to El Salvador tomorrow, and put the onus on you to prove that your ancestors were here legally when they arrived in 1830.
Without getting into the specific issue of birthright citizenship- the real problem here is overturning 130+ years of domestic & constitutional law with the stroke of a pen. You can't run a functioning developed country where longstanding law gets overturned every 4 years. I'd be more sympathetic just on process grounds if Republicans wanted to pass this as a law through both houses of Congress
Apparently the UK has thought about point #2: if a child is stateless and resides in the UK for at least five years, they can then be granted citizenship. So it was a potential problem, but they figured out how to address it (although still seems more complicated than necessary).
Virtually all new world countries have it. New world countries which were settled by conquerors and later immigrants with the existing populations physically destroyed are fundamentally different from old world ones that have been settled since time immemorial when it comes to this issue.
It's unusual in Old World countries, many of which were conceived of as nation-states.
It's the norm in New World countries which are immigrant countries at their core. Birthright citizenship is the law in Canada, Mexico, Brazil, Argentina, etc.
Yes exactly - I think the administration is totally legally wrong on this and I hope Scotus agrees. However the proposed system is used in various places around the world without any problems (numbers 3,4,5 on Halina's list don't make sense to me; paternity tests are not de rigueur as someone else suggested; etc). I'm a US citizen and just had a kid in the UK (my wife is not British either), but because I have permanent residency here (technically settled status, a type of indefinite leave to remain) the baby is a UK citizen. My name is on the birth certificate (the hospital couldn't care less about either of our immigration status), so I applied for a UK passport online (where the appropriate govt office checked my immigration status), all very easy and smooth. There's nothing inherently or morally or logistically wrong with such a system, although I do prefer the 'inclusive' US approach.
This is wrong. The lack of birthright citizenship is what creates stateless populations. See Jews after WW2, Kurds in Syria until last week, Palestinians in camps now, etc.
Yeah, even in countries that are treating them nicely, being a permanent non-citizen kind of sucks, like here’s an explainer about Tibetans in India who can’t get citizenship even though some of their families have been there since the 50s: https://www.smalegal.in/home/the-stateless-status-of-tibetans-in-india. And India is generally welcoming to Tibetans, imagine how things are in countries that don’t like the refugee population they are hosting. If there was birthright citizenship in India eventually the non-citizen refugees would die and their kids would be Indian citizens.
In countries whose histories are most like ours, it is not unusual. Birthright citizenship is actually the norm in North and South America. This makes perfect sense because of the way these societies, like the US, were peopled by historical immigration.
Yea, while it clearly seems there’s no basis to reinterpret the 14th amendment, the post could have pointed out that only a minority of countries actually follow birthright citizenship to this extent. So clearly all those issues can be solved.
Also, wouldn’t a child born to a diplomat still get a birth certificate? So birth certificates *already* aren’t strict proof of citizenship.
Whenever people are like “Trump is a moderate” it seems to be an important data point that he’s so reactionary he’s trying to overturn legal precedents from the 1800s in a reactionary direction. He’s trying to take us back not even to the 1950s but the 1800s (maybe a steampunk version of it like the one in Bioshock Infinite).
Shouldn't this be left to Congress to update policy or more importantly (but less realistic) enact a Constitutional amendment? Based on an originalist interpretation of the text this should be upheld 9-0 (in a perfect world) but given the laughable manner in which the Court has pivoted, 5-4 ruling isn't out of the question.
A 5-4 decision that could swing either way. After its ruling on presidential immunity—in its radicalism the jurisprudential equivalent of both threatening to invade Greenland and demanding tribute for it—this Supreme Court has to be considered as great a threat to the constitutional order it claims to uphold as is the demented President they serve, separation of powers notwithstanding.
I feel like I'm the only sane person whenever the presidential immunity ruling comes up. I don't see how it could have been any other way - the presidency is unworkable if they are not immune for official acts!
Exactly. That part is obvious. The case-by-case determination of whether a particular act was an official act of the Presidency, vs an ultra vires personal gambit, is where the meat is.
“The past is never dead. It’s not even past.” We’re increasingly in the situation of refighting past battles. It’s time to start singing Battle Hymn of the Republic again.
At one time, Native Americans living on Reservations were excluded from birthright citizenship because the Reservations were considered to be foreign countries. Native Americans born outside the Reservations on US territory had birthright citizenship. That changed when Congress declared all Native Americans to be US citizens.
i was being a bit snide (i meant the president), but one of the charms of this comment section is that it still elicited a thoughtful and informative response. thanks! (also to HB for writing the explainer)
ICE could still deport people -- they just couldn't be criminally prosecuted. (That's why the "not subject to the jurisdiction of" argument is so stupid: by any understanding of basic legal principals, you are asserting that illegal immigrants have diplomatic immunity.)
I would think expelling a diplomat is a different process than deportation (which is itself a legal process). I guess if they refused to leave we could pull diplomatic immunity, but then they would be 'subject to' our jurisdiction.
Perhaps we could look at all the other countries that don't have birthright citizenship, and see how they handle birth certificates in this situation. We could start with: Denmark, Norway, Sweden, France, Germany, Spain, Australia, New Zealand, Switzerland, Portugal, France, UK, and Ireland, for example.
In Italy a child born to immigrant parents in Italy cannot become Italian until they're 18. At 18, if they lived there long enough, they can solicit the court to allow them to become Italian and start a process that takes 5 to 10 years. So they could wait until they're 28 to be legally recognized as belonging to the country of their birth.
Meanwhile the grandchild of an Italian that moved abroad can become Italian by right. I have their nationality and regularly vote on their elections, in spite of only living there for about a year and having a merely basic but functional understanding of their language -- and that's far better than most people like me!
This strikes most people, even Italians, as fundamentally unfair.
Not to mention that the process of `certifying that you are the grandchild of a citizen who moved abroad' opens the process up to a lot of corruption (not saying this happens in italy specifically...)
That would be a non-r******d position to take if the Trump administration had, oh say, at any point in the last year proposed detailed legislation on how to handle the situation, but . . . .
I think in germany, the child would get the same type of residency permit as the parents (if the parents have different permits, or if one of them has german citizenship, then the higher one is relevant). if one of the parents has been in germany legally for at least five years, then the child can also automatically get german citizenship (even if the parent has chosen not to do that themselves).
i did not say permanent. For a temporary visa, they just get the same type of visa as their parents have.
Are you asking specifically what happens in the case of US nationals who are allowed to visit the EU for 90 days without first obtaining a visa? I am not sure, but my guess it that they would have to interact with the US embassy in the country in order to get US citizenship for the child and be allowed to travel with it.
I noted that you left out the word "permanent". That was my point. The USA would overwhelmingly be dealing with people who have no legal permanent residency. Halina makes it sound like that is a difficult problem, but out of the~200 sovereign countries, ~165 do not have unrestricted birthright citizenship, including all of Europe, Australia, and New Zealand. We can simply match their way of dealing with it (child gets the citizenship of one or both of their parents). The legal administrative means of handling that with the other countries are already in place. Ignoring that looks deliberate, although it continuously surprises me that liberals genuinely do not know that birthright citizenship is an outlier.
germany doesn't really have people who are in the country without a residence permit of one form or another. everyone (refugees, visitors, etc) is registered at the citihall of their place of residence, when you move from one apartment to another you have to reregister etc. this is what makes it easy for the solutions i described to work, but both democrats and republicans in the us would consider this a `surveillance state'. It works for germany, but is antithetical to american view of civil liberties...
also, almost every american (myself included) thinks of the us as an outlier in many ways (that's the point! ... and the reason various curmudgeons keep complaining about american exceptionalism.)
"Some birth certificates would prove citizenship, and others wouldn’t ..."
Really important point that gets at how profoundly destabilizing this would be - and the ripple effects would call into question the citizenship of a LOT of Americans. Because if birthright citizenship didn't mean what we historically thought it meant, now you have to prove that your parents, and their parents, and THEIR parents, etc. had sufficient legal status for citizenship to be conferred by your birth in America. It ends up being a difficult problem of turtles all the way down ...
So in my own case - I'm the third generation in America on my dad's side. I have a birth certificate, but does that count? Well, only if my parents are both provably citizens or lawful residents under this new standard. And that's only true if THEIR parents are also provably citizens or lawful residents. And now that starts getting tricky - my dad's parents were both from immigrant families, who came to America in the early 1900s from what is now Lithuania and Ukraine but were at the time part of the Russian Empire. Would I be able to find enough documentation from this period to verify that they were citizens, and therefore my dad is, and therefore I am? It would be pretty hard!
I don't think it's an exaggeration to say that the Trump Administration would create a massive legal grey area here that would give them an opening to denaturalize a LOT of people who thought their citizenship was rock solid. And if you think "oh they'd never do something so extreme" I will just say that my citizenship depending on Trump and Stephen Miller showing prudent restraint and forbearance is not an ideal situation....
> I'm the third generation in America on my dad's side.
Sorry, JD Vance said it has to be at least five generations to count.
If the Trump Administration wins this case they will have what amounts to a legal precedent for Vance's view that "heritage Americans" count more. Some citizens are more equal than others, if you will ...
Gonna start carrying my whole ancestry.com paperwork in the car ffs
Well, if he did say that, that rules out his kids.
The situation you are describing would be destabilizing, but it's not the situation described in the post.
Trump has articulated no clear limiting principle that rules out what I am describing. And I wouldn't say, in general, that he's a "limiting principles" kind of guy ...
If it were destabilizing, then all of the other countries with no birthplace citizenship (the overwhelming majority) would be destabilized. It would be relatively easy to draw a line and say everyone born from today onwards is subject to the corrected rule. We have precedent for that. We could perhaps call it "grandfathered in".
"If it were destabilizing, then all of the other countries with no birthplace citizenship (the overwhelming majority) would be destabilized."
That doesn't follow at all. There's a huge difference between a country that never had birthright citizenship and kept its citizenship rules consistent, and one that used to have birthright citizenship but had it change suddenly and retroactively.
It would be good if there were one international standard for this. I don’t have much of an opinion on jus soli vs jus sanguinis so long as all countries operate along the same rules, but they don’t. It’s not right for there to be stateless people.
If there was an international standard it would jus sanguinis. The issue with that approach is that you have large populations of people currently not accepted as citizens in any country. If you carried jus sanguinis forward, that would continue.
"but had it change suddenly and retroactively."
I think the 14th amendment is clear and the Trump administration is wrong. But I don't see it be "retroactive" and I'm not sure how you would make any change here and it not be "sudden."
Remember that court rulings are about interpretation of the law, not legislation. With legislation changes, one can say, "Those were the old rules; these are the new ones." With a court ruling, the implication of a change of interpretation is that the previous interpretation was incorrect and should never have been considered the law at all. Thus, a ruling in favor of Trump on birthright citizenship would imply that several people who thought they were citizens never were in the first place. That's where the retroactive aspect comes in.
The Trump Administration is trying to totally upend over a century of settled citizenship law by executive fiat. That's fundamentally just a massively destabilizing thing to do (and that would be true of upending long-settled citizenship law in any country with any system).
This is a common misperception I see about these sorts of highly destabilizing Trump Administration actions. People who share Trump's normative preferences want to give him the benefit of the doubt that, no matter what particular load-bearing pillar of the rule of law he is trying to smash, he will make some reasonable accomodation and things will be OK. But that doesn't address the fundamental problems that (1) smashing load-bearing pillars of the rule of law is bad on its own terms, and (2) an Administration that behaves this way can't necessarily be counted on to pursue reasonable and stabilizing accomodations.
> destabilized
Since those countries have always had this system, I believe the word you're looking for is "unstable" and, uh, isn't that what conservatives say about Europe?
Your birth certificate would be fine because it predates the trump order.
Yes, because the Trump administration is known for its reasonableness and habit of acting in good faith. I'm sure they wouldn't claim that a victory at SCOTUS also authorizes retroactive application of the rule. (Note that the administration's position at SCOTUS, as I understand it, is that they aren't asking for a reversal of Wong Kim Ark, they are arguing that Wong Kim Ark never decided the question at all -- i.e., that there would be no constitutional bar to retroactive application of the rule if Trump chose to do that.)
Suppose the court allows this, and the EO goes into effect.. it's still an EO correct? And just like hundreds of EOs are reversed every four years, one can bounce around being a citizen and non-citizen every 4 years.
And you can imagine someone in labor while a live telecast of an EO signing plays in the background. "PUSH, NOW! or no citizenship" Heckuva way to run a Republic.
We're rediscovering, from first principles, why we need things like the rule of law and a clear, stable definition of citizenship...
Yes, it is an EO and thus theoretically subject to being reversed, although what I suspect would happen if the current EO is allowed to stand is that, if a subsequent President tried to reverse it, SCOTUS (assuming the majority that upheld the first EO is still on the bench) would strike the new EO down as being unconstitutional due to it intruding on Congress' powers under Article I to set rules for naturalization.
This is making a lot of assumptions.
The case is not about the executive order. It is about the extent of birthright citizenship. The executive order was just a mechanism to get the issue of birthright citizenship into court. If the Court rules that the children of illegal immigrants, or people here on temporary visas, are not "subject to the jurisdiction" of the US, then none of those people are US citizens, period, unless some statute grants them citizenship.
I wonder how many other commenters are native-born citizens who wouldn’t be so if these rules had been in effect at the time of birth. I am. Also, I really think birthright citizenship is one of the most fundamental components of America’s exceptional greatness and am not willing to cede an inch on it. In short, fuck these people.
+1000 on "one of the most fundamental components of America’s exceptional greatness"
Right up there with "I can never 'become' Japanese or French or Turkish or Swahili, but **anyone** can become an American".
My parents both eventually became citizens, but I am not sure they had permanent residency when I was born. In the case of my brother, they certainly didn’t.
I think it is absurd that I might have had to become naturalized under the administration’s order. I know no other country and never spoke anything but English with complete fluency. I would have been a foreigner in any other land.
Ironically, wouldn’t this make naturalized citizens *more* secure in our US citizenship status compared with natural born Americans? I don’t have to rely on my birth certificate or try to prove that my parents were citizens or whatever. I can show you my naturalization certificate! I attended a ceremony and took an oath and everything!
Also, +10000000 to “fuck those people.”
Of all the SCOTUS cases I am most sure the administration loses utterly this is at the top of the list.
I mean the precedent, history and tradition and practical implications all point that way BUT with this Calvin ball Supreme Court, it’s hard to be certain
I think it's pretty easy to be sure. This doesn't fit with any flavor of originalist interpretation or any strain of conservative legal theory, it doesn't advance any conservative policy goals, and it strengthens the executive at the expense of the judiciary. It's most likely to go down 9-0, with a very small chance of 8-1 or 7-2.
Yes similar to the tariff case, 9-0 would be the most reasonable outcome.
More opportunities for splitting the baby in that one, but yeah -- that one's also a plain old executive power grab and SCOTUS has no reason to sign off on it (other than Bessent wink-wink implying there'd be a constitutional crisis if SCOTUS overturned a President's signature economic policy).
out of curiosity: what was your expected outcome before the presidential immunity ruling?
also out of curiousity: i asked claude what it would predict for the birth right citizenship ruling, and it said 5-4 or 6-3 to strike down the EO with low confidence.
I expected Trump to win on the presidential immunity ruling -- there was literally no way SCOTUS would ever find that a President could be criminally charged for official acts of office -- but I expect the administration to lose this simply because it would implode the federal court system and potentially start a civil war. That said, while the ruling should be 9-0, I will not be surprised to see it being 7-2 with Thomas and Alito taking the opportunity of their vote not making a difference to go full Fox News.
why would it have either of the effects you are describing?
1) In re the federal court system, I have no reason to think that the existing cases deal with every factual/legal permutation that can be conceived of relating to this order and SCOTUS killed off nationwide injunctions, so each affected person will need to file a separate lawsuit unless they can find a class action that covers their situation. Further, depending on the exact wording of the ruling, it would potentially open the door to lawsuits based on theories that the EO's position "has always been the law" and the decision should be given retroactive effect.
2) Literally a couple hundred thousand small children would be stripped of their citizenship immediately by a ruling affirming the facial language of the EO (which operates prospectively only), but what do you supposed the likelihood is that DHS/ICE -- the organizations whose official social media pages are spamming white nationalist propaganda about deporting 100 million(!) "illegals" (a number that presupposes almost every non-white person in the country is an illegal immigrant) -- is going to scrupulously apply the EO in that manner, let alone the possibility that the administration after winning immediately issues a new EO stating that the ruling will be applied retroactively to those born after, e.g., 1986 (the amnesty for illegal immigrants under Reagan), 1965 (the Hart-Celler immigration act that substantially increased immigration from majority non-white countries), etc., etc.?
SCOTUS (correctly) tries to avoid situations where courts are in open conflict with the executive -- like hauling the president and his senior advisors in for depositions or trying to throw them in prison. It creates a really high probability of a constitutional crisis, which is (a) how democracy actually dies and (b) how judges lose the power they currently have and very much enjoy having.
For that reason, I assume any time Trump is personally in some kind of legal jeopardy that the courts will find some flimsy pretext or other for getting him out of legal jeopardy, and they did that with immunity.
doesn't the ruling say that former (!) presidents cannot be prosecuted for acts that they took while in office?
Same issue: a president who can be prosecuted once he leaves office has a strong incentive to not leave office (by becoming a dictator).
If it loses, it loses 7-2. If it wins, it wins 6-3.
I wish I shared your confidence. If that's the case, then why didn't SCOTUS just let all the appellate rulings stand without even granting cert?
If illegal/undocumented immigrants aren’t “subject to the jurisdiction” does that mean they can’t be tried for crimes? Generally those, such as diplomats, who aren’t granted birthright citizenship are also exempt from following American laws through diplomatic immunity.
This is the exact point I've made ever since hearing the stupid “not subject to the jurisdiction of” argument decades ago and I hope one of the justices points it out in a concurrence.
This one drives me insane because the administrations position so obviously contrary to both the legal tradition and the discussion in Congress at the time. I went back and read all the congressional debates and it’s 100% clear the intended effect was to give citizenship to what we would now call “illegals”.
At the time those opposed to the wording worried it would make citizens of “Chinese” and “gypsies”. Rather than denying that, those that voted in favor explicitly said that that was their intention. The record is so clear that people trying to obfuscate it rice me nuts.
This is from a law review quoting the drafter the of amendment:
Senator Cowan renewed his similar objections from the Civil Rights Act from a month earlier, asking: “Is the child of a Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen?”He called these groups “trespassers” who had “no allegiance” to the United States government. Senator Conness of California answered Cowan, declaring that “children of all parentage whatever” born in the U.S. would be citizens under the proposed clause. The phrase “subject to U.S. jurisdiction” would mean granting citizenship for all “human beings born in the United States.”
Conness was not even sympathetic to Chinese immigration. He conceded (unnecessarily and unfairly) that Chinese migrants “all return to their own country at some time or another,” and he conceded that he shared concerns about the increase of Chinese immigration to California. Nevertheless, he confirmed that he supported broad birthright citizenship, confirming the same position he had taken on the Civil Rights Act of 1866
(Edited some formatting since I copied from a pdf)
This misses the biggest issue -- the change would call into question the citizenship of lots of current citizens whose parents were on student visas or work visas.
Sure, the EO as written is not applicable to them, but if Wong Kim Ark is overturned and citizenship is given based on the wording of an EO, the wording can be changed.
(This is also why SCOTUS is not going to overturn Wong Kim Ark.)
Having citizenship determined by EO is complete chaos. What's to stop the next administration from revoking the EO and issuing to passports to anyone born in the USA? And then the administration after that from revoking those passports?
>In a savvy bit of litigation strategy, they argued that if they couldn’t get a nationwide injunction, they should be able to represent a nationwide class.
I am a fan of the ACLU in general, but there was nothing particularly savvy about it. Trump v. CASA explicitly noted that that was an option, and it is a no-brainer for this issue; the key to a class action is that "that the questions of law or fact common to class members predominate over any questions affecting only individual members" which is obviously the case.
Thanks, I was coming down here to say this!
The 14th Amendment's definition of citizenship applies ONLY to the child so the parent's nationality or citizenship status is simply irrelevant. It says "All persons born...in the United States...are citizens of the United States..." It does not say "All persons born in the United States of at least one United States citizen...is a citizen of the United States."
The administration's (stupid) view is that the "subject to the jurisdiction" bit is actually saying "has at least one citizen / greencard-holder parent". That view has no basis in history or law, but it's worth understanding the actual (stupid) position.
Birthright citizenship is unusual globally and the UK got rid of it seemingly without too many issues in the 80s. Everyone gets the same birth certificate but the birth certificate doesn't entitlement you to citizenship.
Getting rid of birthright citizenship by Constitutional amendment in the US is workable. Reinterpreting the Constitution by Executive Order is not workable.
Presidents can rewrite Executive Orders whenever they feel like it, and "who is considered a citizen and allowed to live here and vote" is a really foundational legal thing that cannot turn on the whims of the President. Oops, Trump doesn't like you, let's revoke your citizenship today, deport you to El Salvador tomorrow, and put the onus on you to prove that your ancestors were here legally when they arrived in 1830.
Without getting into the specific issue of birthright citizenship- the real problem here is overturning 130+ years of domestic & constitutional law with the stroke of a pen. You can't run a functioning developed country where longstanding law gets overturned every 4 years. I'd be more sympathetic just on process grounds if Republicans wanted to pass this as a law through both houses of Congress
https://en.wikipedia.org/wiki/Major_questions_doctrine
I get that, I'm only pointing out that the problems Halina raises aren't really problems for most countries that don't have birthright citizenship.
Apparently the UK has thought about point #2: if a child is stateless and resides in the UK for at least five years, they can then be granted citizenship. So it was a potential problem, but they figured out how to address it (although still seems more complicated than necessary).
When I see someone write this, it makes me proud to be American.
It's really the Americas vs everywhere else. https://www.axios.com/2025/01/25/birthright-citizenship-world-map-trump
It's an example of American exceptionalism, that's for sure!
Virtually all new world countries have it. New world countries which were settled by conquerors and later immigrants with the existing populations physically destroyed are fundamentally different from old world ones that have been settled since time immemorial when it comes to this issue.
And birthright citizenship is a good thing. If you were born here, you're just as much a "Native American" as anyone else born here.
It's unusual in Old World countries, many of which were conceived of as nation-states.
It's the norm in New World countries which are immigrant countries at their core. Birthright citizenship is the law in Canada, Mexico, Brazil, Argentina, etc.
Yes exactly - I think the administration is totally legally wrong on this and I hope Scotus agrees. However the proposed system is used in various places around the world without any problems (numbers 3,4,5 on Halina's list don't make sense to me; paternity tests are not de rigueur as someone else suggested; etc). I'm a US citizen and just had a kid in the UK (my wife is not British either), but because I have permanent residency here (technically settled status, a type of indefinite leave to remain) the baby is a UK citizen. My name is on the birth certificate (the hospital couldn't care less about either of our immigration status), so I applied for a UK passport online (where the appropriate govt office checked my immigration status), all very easy and smooth. There's nothing inherently or morally or logistically wrong with such a system, although I do prefer the 'inclusive' US approach.
This is wrong. The lack of birthright citizenship is what creates stateless populations. See Jews after WW2, Kurds in Syria until last week, Palestinians in camps now, etc.
Is the claim here that if all those countries had birthright citizenship they wouldn't be stateless? Or something else?
Yeah, even in countries that are treating them nicely, being a permanent non-citizen kind of sucks, like here’s an explainer about Tibetans in India who can’t get citizenship even though some of their families have been there since the 50s: https://www.smalegal.in/home/the-stateless-status-of-tibetans-in-india. And India is generally welcoming to Tibetans, imagine how things are in countries that don’t like the refugee population they are hosting. If there was birthright citizenship in India eventually the non-citizen refugees would die and their kids would be Indian citizens.
Which Halina pointed out above.
In countries whose histories are most like ours, it is not unusual. Birthright citizenship is actually the norm in North and South America. This makes perfect sense because of the way these societies, like the US, were peopled by historical immigration.
Yea, while it clearly seems there’s no basis to reinterpret the 14th amendment, the post could have pointed out that only a minority of countries actually follow birthright citizenship to this extent. So clearly all those issues can be solved.
Also, wouldn’t a child born to a diplomat still get a birth certificate? So birth certificates *already* aren’t strict proof of citizenship.
Whenever people are like “Trump is a moderate” it seems to be an important data point that he’s so reactionary he’s trying to overturn legal precedents from the 1800s in a reactionary direction. He’s trying to take us back not even to the 1950s but the 1800s (maybe a steampunk version of it like the one in Bioshock Infinite).
Shouldn't this be left to Congress to update policy or more importantly (but less realistic) enact a Constitutional amendment? Based on an originalist interpretation of the text this should be upheld 9-0 (in a perfect world) but given the laughable manner in which the Court has pivoted, 5-4 ruling isn't out of the question.
A 5-4 decision that could swing either way. After its ruling on presidential immunity—in its radicalism the jurisprudential equivalent of both threatening to invade Greenland and demanding tribute for it—this Supreme Court has to be considered as great a threat to the constitutional order it claims to uphold as is the demented President they serve, separation of powers notwithstanding.
I feel like I'm the only sane person whenever the presidential immunity ruling comes up. I don't see how it could have been any other way - the presidency is unworkable if they are not immune for official acts!
The problem isn’t that presidents are immune regarding official acts, it’s how they went about settling the boundaries of official acts.
> it’s how they went about settling the boundaries of official acts.
I'd need to go back and read the ruling again, but as I recall, they basically punted on this?
If POTUS orders SEAL Team Six to whack a political rival, is that an official act? Asking for a friend.
Of course not.
Exactly. That part is obvious. The case-by-case determination of whether a particular act was an official act of the Presidency, vs an ultra vires personal gambit, is where the meat is.
I don't think the concept of "shouldn't" plays any role in the administration's actions.
Chesterton's fence has this covered; remove it is the purview of racists.
“The past is never dead. It’s not even past.” We’re increasingly in the situation of refighting past battles. It’s time to start singing Battle Hymn of the Republic again.
isn't there also a notable third exception to who is subject to us law?
At one time, Native Americans living on Reservations were excluded from birthright citizenship because the Reservations were considered to be foreign countries. Native Americans born outside the Reservations on US territory had birthright citizenship. That changed when Congress declared all Native Americans to be US citizens.
i was being a bit snide (i meant the president), but one of the charms of this comment section is that it still elicited a thoughtful and informative response. thanks! (also to HB for writing the explainer)
That’s who I thought, when reading your comment
So, if they aren't 'subject to the jurisdiction' of the United States, what is ICE going to do?
ICE could still deport people -- they just couldn't be criminally prosecuted. (That's why the "not subject to the jurisdiction of" argument is so stupid: by any understanding of basic legal principals, you are asserting that illegal immigrants have diplomatic immunity.)
then you would declare them persona non grata and ask their home countries to recall them... that ought to do it
I would think expelling a diplomat is a different process than deportation (which is itself a legal process). I guess if they refused to leave we could pull diplomatic immunity, but then they would be 'subject to' our jurisdiction.
Perhaps we could look at all the other countries that don't have birthright citizenship, and see how they handle birth certificates in this situation. We could start with: Denmark, Norway, Sweden, France, Germany, Spain, Australia, New Zealand, Switzerland, Portugal, France, UK, and Ireland, for example.
In Italy a child born to immigrant parents in Italy cannot become Italian until they're 18. At 18, if they lived there long enough, they can solicit the court to allow them to become Italian and start a process that takes 5 to 10 years. So they could wait until they're 28 to be legally recognized as belonging to the country of their birth.
Meanwhile the grandchild of an Italian that moved abroad can become Italian by right. I have their nationality and regularly vote on their elections, in spite of only living there for about a year and having a merely basic but functional understanding of their language -- and that's far better than most people like me!
This strikes most people, even Italians, as fundamentally unfair.
Not to mention that the process of `certifying that you are the grandchild of a citizen who moved abroad' opens the process up to a lot of corruption (not saying this happens in italy specifically...)
Every one of these has duly passed laws amending their respective nationality acts.
Others like Italy write jus sanguis laws into their constitution.
That would be a non-r******d position to take if the Trump administration had, oh say, at any point in the last year proposed detailed legislation on how to handle the situation, but . . . .
I think in germany, the child would get the same type of residency permit as the parents (if the parents have different permits, or if one of them has german citizenship, then the higher one is relevant). if one of the parents has been in germany legally for at least five years, then the child can also automatically get german citizenship (even if the parent has chosen not to do that themselves).
And what does Germany do if neither parent has a permanent residency permit?
i did not say permanent. For a temporary visa, they just get the same type of visa as their parents have.
Are you asking specifically what happens in the case of US nationals who are allowed to visit the EU for 90 days without first obtaining a visa? I am not sure, but my guess it that they would have to interact with the US embassy in the country in order to get US citizenship for the child and be allowed to travel with it.
I noted that you left out the word "permanent". That was my point. The USA would overwhelmingly be dealing with people who have no legal permanent residency. Halina makes it sound like that is a difficult problem, but out of the~200 sovereign countries, ~165 do not have unrestricted birthright citizenship, including all of Europe, Australia, and New Zealand. We can simply match their way of dealing with it (child gets the citizenship of one or both of their parents). The legal administrative means of handling that with the other countries are already in place. Ignoring that looks deliberate, although it continuously surprises me that liberals genuinely do not know that birthright citizenship is an outlier.
what genuinely surprises me is that conservatives seem to have forgotten what that word means
germany doesn't really have people who are in the country without a residence permit of one form or another. everyone (refugees, visitors, etc) is registered at the citihall of their place of residence, when you move from one apartment to another you have to reregister etc. this is what makes it easy for the solutions i described to work, but both democrats and republicans in the us would consider this a `surveillance state'. It works for germany, but is antithetical to american view of civil liberties...
also, almost every american (myself included) thinks of the us as an outlier in many ways (that's the point! ... and the reason various curmudgeons keep complaining about american exceptionalism.)