# What is the legal reasoning that 'allows' ending birthright citizenship? **URL:** \ **Category:** Politics & Elections\ **Tags:** trump\ **Created:** [January 24, 2025, 4:16pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335 "2025-01-24T16:16:05Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 24, 2025, 6:42pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/21 "2025-01-24T18:42:58Z")
> [@Horatius](#): > > Several of the Justices are _fine_ with accepting legal bullshit if it would allow them to do what they want to do. In my experience, this is true of many judges from SCOTUS justices down to traffic court judge. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [January 24, 2025, 6:55pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/22 "2025-01-24T18:55:10Z")
> [@Saint\_Cad](#): > > But SCOTUS cannot say granting citizenship to children of illegal immigrants is unconstitutional can they? Which IS why the MAGA Mind Trick is being attempted in the drafting. The Order says the agencies will not _“issue documents **recognizing** citizenship”_ unless you can present that proof – so “technically” it does not actually say the citizenship does not exist. “Just” that there’s now something _else_ people born after next 2/20 will need to have to prove it. Something for which there is no field in the birth certificate. Left to the legal process to see if that’s as slick as they think it was. ---
**Author:** ![Tired\_and\_Cranky](https://avatars.discourse-cdn.com/v4/letter/t/a87d85/32.png) [@Tired\_and\_Cranky](https://boards.straightdope.com/u/Tired_and_Cranky)\ **Post date:** [January 24, 2025, 6:57pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/23 "2025-01-24T18:57:10Z")
> [@JRDelirious](#): > > > [@Saint\_Cad](#): > > > > But SCOTUS cannot say granting citizenship to children of illegal immigrants is unconstitutional can they? > > Which IS why the MAGA Mind Trick is being attempted in the drafting. The Order says the agencies will not _“issue documents **recognizing** citizenship”_ unless you can present that proof – so “technically” it does not actually say the citizenship does not exist. “Just” that there’s now something _else_ people born after next 2/20 will need to have to prove it. Something for which there is no field in the birth certificate. But to arbitrarily deny citizens “documents recognizing citizenship” would be a denial of equal protection. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [January 24, 2025, 6:58pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/24 "2025-01-24T18:58:03Z")
Which is up to the Courts to call. Is _this_ requirement “arbitrary” or not. _ **Legally** _ , not on the basis of our moral indignation. ---
**Author:** ![Babale](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/babale/32/15666_2.png) [@Babale](https://boards.straightdope.com/u/Babale)\ **Post date:** [January 24, 2025, 6:58pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/25 "2025-01-24T18:58:59Z")
> [@Saint\_Cad](#): > > The alternate (Trumpian) interpretation is “a subject of the United States through swearing allegience i.e being here legally.” Where does this definition come from? I’ve never heard anyone referred to as “a subject of the United States”. > [@Saint\_Cad](#): > > not “subject to the laws.” It literally says “subject to the jurisdiction”, though. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [January 24, 2025, 7:00pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/26 "2025-01-24T19:00:29Z")
> [@Babale](#): > > You _might_ get deported, or you _might_ get imprisoned or even executed for breaking US law, so yes, you’re subject to it. The biggest difference is this - an undocumented alien convicted of a crime may get deported but it very likely will be _after_ serving their sentence, not _instead of_. Someone with diplomatic immunity is expelled instead of being arrested, convicted, serving a sentence and so on. Because they aren’t subject to the jurisdiction of the US unless their home country waives immunity. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [January 24, 2025, 7:08pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/27 "2025-01-24T19:08:44Z")
Maybe I’m reading the amendment too literally but I don’t see where a parent’s citizenship is even considered. The “subject to the jurisdiction thereof” refers to the person born since it’s their citizenship that’s being determined. Maybe my parents weren’t “subjected” but that doesn’t mean that I’m not. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 24, 2025, 7:09pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/28 "2025-01-24T19:09:48Z")
> [@Babale](#): > > Where does this definition come from? I’ve never heard anyone referred to as “a subject of the United States”. It was part of the legal theory of citizenship that led up to the Wong Kim Ark case. It hung around after the decision espoused by a very small minority. > [@Babale](#): > > It literally says “subject to the jurisdiction”, though. Which means what exactly? According to SCOTUS the meaning is very clear but as pointed out, there are alternate interpretations. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 24, 2025, 7:14pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/29 "2025-01-24T19:14:10Z")
> [@doreen](#): > > Because they aren’t subject to the jurisdiction of the US unless their home country waives immunity. Let’s go there. A country waives immunity and the diplomat later has a child born in the United States. Is that child a United States citizen since their parent in now “subject to the jurisdiction thereof”? ---
**Author:** ![Dr.Winston\_OBoogie](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr.winston_oboogie/32/2945_2.png) [@Dr.Winston\_OBoogie](https://boards.straightdope.com/u/Dr.Winston_OBoogie)\ **Post date:** [January 24, 2025, 7:22pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/30 "2025-01-24T19:22:28Z")
> [@Horatius](#): > > You’re looking for a legal justification that is logical, consistent with precedent, and would be accepted by a reasonable court, and wouldn’t have unintended consequences. > > That’s not what Trump wants. Well, he may _want_ it, but it’s obvious he won’t get that. So what he wants instead is a good-enough sounding excuse that his compromised Supreme Court will accept it (even when this is legally ridiculous), so that he can do what he wants. Or, Trump may _know_ it’s legally ridiculous, and also knows his adoring throngs _ **don’t know** _ that it’s legally ridiculous and he can do his “I want to work for you, but these activist judges won’t let me” martyr act. ---
**Author:** ![Horatius](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/horatius/32/3572_2.png) [@Horatius](https://boards.straightdope.com/u/Horatius)\ **Post date:** [January 24, 2025, 7:45pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/31 "2025-01-24T19:45:04Z")
> [@Babale](#): > > Where does this definition come from? I’ve never heard anyone referred to as “a subject of the United States” It’s a bit archaic. (2) **:** one who lives in the territory of, enjoys the protection of, and owes allegiance to a sovereign power or state They’ll argue about the “owes allegiance to” part of the definition, even though that was pretty much settled in the Wong Kim Ark case. Look for the Supreme Court to overturn that precedent, as they did with Roe V Wade. ---
**Author:** ![Elmer\_J.Fudd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/elmer_j.fudd/32/1211_2.png) [@Elmer\_J.Fudd](https://boards.straightdope.com/u/Elmer_J.Fudd)\ **Post date:** [January 24, 2025, 7:58pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/32 "2025-01-24T19:58:38Z")
> [@Czarcasm](#): > > Does Trump have a specific outlook when it comes to Native American citizenship in general, and current treaties in particular? He has complained loudly in the past about how tribal sovereignty gives Native Americans an unfair advantage in the casino business. ---
**Author:** ![Babale](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/babale/32/15666_2.png) [@Babale](https://boards.straightdope.com/u/Babale)\ **Post date:** [January 24, 2025, 8:22pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/33 "2025-01-24T20:22:42Z")
> [@Horatius](#): > > It’s a bit archaic. > > (2) **:** one who lives in the territory of, enjoys the protection of, and owes allegiance to a sovereign power or state Sure, I’ve heard it used in this way for a subject of the King of France or something. I’m asking specifically about “subjects” of the United States. ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [January 24, 2025, 8:30pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/34 "2025-01-24T20:30:02Z")
> [@Horatius](#): > > It’s a bit archaic. Think that’s archaic? Wait till we get to the difference between a citizen and denizen! ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [January 24, 2025, 8:35pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/35 "2025-01-24T20:35:10Z")
> [@flurb](#): > > As @Jas09 notes, an argument that’s been advanced by some on the right – including Judge Jim Ho of the Fifth Circuit – is that illegal immigrants could be considered “enemies” and their presence in the United States a “hostile occupation.” But then, wouldnt the migrants have to be treated as POWs? 😇 > [@Horatius](#): > > Now, you may argue that the SC won’t do this, but look at their recent history. My prediction is that the SC will prevaricate and rule that a Executive order cant do it. This would leave out the possibility, of course, that Congress could pass a law limiting it. ---
**Author:** ![gnoitall](https://avatars.discourse-cdn.com/v4/letter/g/bb73d2/32.png) [@gnoitall](https://boards.straightdope.com/u/gnoitall)\ **Post date:** [January 24, 2025, 8:52pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/36 "2025-01-24T20:52:13Z")
> [@crowmanyclouds](#): > > Wait till we get to the difference between a citizen and denizen! Does it involve the color of the fringe of a United States flag? ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [January 24, 2025, 9:19pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/37 "2025-01-24T21:19:36Z")
Citizens live in cities, denizens live in dens. It’s simple, really. ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [January 24, 2025, 9:26pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/38 "2025-01-24T21:26:28Z")
Should this come up, I’m certain that Trump will define denizens as people that live in drug dens. Just as asylum seekers are people that have escaped asylums in their country of origin and are seeking new asylums here. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [January 25, 2025, 12:44pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/39 "2025-01-25T12:44:41Z")
> [@DrDeth](#): > > > [@flurb](#): > > > > As @Jas09 notes, an argument that’s been advanced by some on the right – including Judge Jim Ho of the Fifth Circuit – is that illegal immigrants could be considered “enemies” and their presence in the United States a “hostile occupation.” > > But then, wouldnt the migrants have to be treated as POWs? 😇 Interesting! So, what treatment is given to enemies who get captured without uniform? ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [January 25, 2025, 1:18pm UTC](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335/40 "2025-01-25T13:18:49Z")
> [@The\_Other\_Waldo\_Pepper](#): > > Interesting! So, what treatment is given to enemies who get captured without uniform? Assuming Geneva conventions are honored, the rules for treatment of POW’s and for interned enemy civilians are different. For example: [Applies to POW’s](https://ihl-databases.icrc.org/en/ihl-treaties/gciii-1949/article-101): > [@](#): > > If the death penalty is pronounced on a prisoner of war, the sentence shall not be executed before the expiration of a period of at least six months from the date when the Protecting Power receives, at an indicated address, the detailed communication provided for in Article [107](https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/9AC284404D38ED2BC1256311002AFD89/E3D5B98E9667D01AC12563CD0051B38C) . [Applies to internees](https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-76) > [@](#): > > To the maximum extent feasible, the Parties to the conflict shall endeavour to avoid the pronouncement of the death penalty on pregnant women or mothers having dependent infants, for an offence related to the armed conflict. Whether it is better or worse to be a POW or a civilian internee, under the Geneva conventions, I can not say, except that it can depend on your situation. Since, as we see with tariffs, Trump doesn’t worry about international law, it is a moot point. The great advantage of being interned is that you can live in a nuclear family unit. But if single, I do not know that being a POW is worse. [Previous page](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335.md?page=1) [Next page](https://boards.straightdope.com/t/what-is-the-legal-reasoning-that-allows-ending-birthright-citizenship/1013335.md?page=3)