But the amendment 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.”
You can’t read “subject to the jurisdiction thereof” to mean you are a citizen as then it is just circular. "“All persons born or naturalized in the United States, and [are citizens] are citizens…”
Yes, that is what most constitutional scholars say. We are just saying trumps position, which is very unlikely but not outrageously wrong.
I could get behind not letting children born to tourists get birthright citizenship. Maybe saying STTJT applies to permanent residents of the US, whether legally or illegally here would do the trick.
I think he would like to take it much further than that, and this step is but a foot in the door.
Except for the opinions in the Ark case, and it was not unanimous, I cannot find any statutory or other definition for “subject to the jurisdiction thereof”.
It doesn’t according to Fuller’s dissent in Ark. It means the parents owe allegience to the United States by being a citizen or legal resident that has taken an oath to the American government.
Question: do foreign national American soldiers also take an oath? If so, then they are subject to the jurisdiction thereof and likewise if their child was born in the US that child would be a US citizen.
The issue lies with Congress. When the Amendment was written, everyone knew what they meant - include freed slaves and other Blacks (overruling Dred Scott) and excluded Indians (for the most part). Today’s situation is drastically differerent than 1868 and yet Congress has never AFAIK defined STTJT. So while the meaning may be obvious to you, to me and to most people, it is still ambiguous enough that even learned Justice cannot agree to its meaning.
There is even a thing where people travel to the United States specifically so the baby is born there. It’s called “birth tourism.”
I think a lot of countries have dealt with this by not allowing entry if a woman is beyond a certain length in her term.
Also airlines may not allow late-term pregnant passengers to fly. But if they can afford it, the mother might arrive very early in the pregnancy.
Anyone who serves a single day in the military (and doesn’t get an OTH or worse discharge) during a designated period of hostility can become a naturalized citizen even if they have never been a legal resident, provided they enlisted from within the US or one of its territories. However, they still have to satisfy most of the other requirements (not least of all the “good moral character” provision which can permanently prevent some people from becoming citizens). That’s INA 329.
I am not aware of a special provision for combat-wounded servicemembers, but then again it would be a niche area of law within a niche area of law (military naturalization) within a niche area of law (naturalization) within a niche area of law (immigration) so who knows. That said, there is this guy, who was wounded in combat (but not a “designated period of hostility”) and will never get to be a citizen under current law:
https://www.npr.org/2025/06/24/g-s1-74036/trump-ice-self-deportation-army-veteran-hawaii
And just so we’re clear, there is no such thing as “self-deportation.” You are either deported, given voluntary departure, or just leave on your own, the latter of which can actually be more harmful (legally speaking) than even forced deportation depending on individual circumstances (this is not legal advice, I am not your attorney).
I will also point out that when Justice Gray wrote the majority opinion for Ark that he pointed out that Ark’s parents were permitted to be here legally and thus STTJT. It can be argued that the Ark case does not apply to those here illegally.
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. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.
Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are “subject to the jurisdiction thereof” in the same sense as all other aliens residing in the United States. . . .
Also, I believe that in using the term “domiciled” and “residing” that they are looking at a more limited definition of legally residing rather than, as expanded by later courts, anyone living in the state regardless of immigration status. Feel free to disagree with what Gray was thinking.
So could the current SCOTUS rule in favor of Trump and not even explicitly overturn Ark? Absolutely. His EO is written to do precisely that.
Shit. I would be shocked if birthright citizenship is overturned but perhaps I should not be.
Let’s temper that. Birthright citizenship will still be a thing if your parent(s?) have legal residence within the United States.
It’ll be interesting to see how certain people react when the hospital informs them they can’t certify their child as a US citizen on the birth certificate because they, the parents, failed to come with proof of their own citizenship or legal residency. And then when they come back a week later with proof, they get told “Sorry, you can’t prove that you are the father or you are the mother. I mean, a week ago we could have confirmed the baby came from one of you, but now? Who knows where this baby came from! We’re going to need you to submit to a DNA test…”
Because that is the logical conclusion of birthright citizenship for some but not for others. It necessitates a whole new regulatory regime to prove up at least one parent’s citizenship or legal residency and, potentially, even paternity/maternity itself (if proof for the mother isn’t on hand in the hospital when the child is born).
I dont hate that idea, and it could be a compromise, but imho I’d rather just leave things the way they were.
Yeah, generally people dont carry around proof of citizenship, especially as there is no such thing. Yes, a passport is solid evidence of citizenship, but it wasnt designed as proof.
But those with RealID do carry around proof of lawful presence.
The point is that usually this applies to fairly well-off visitors who then go home with the knowledge their child has a special advantage in the future. Most of the people here illegally did not come as tourists just to have a child. Most children of illegals are simply a result of living their lives, not planned “anchors” (which is a stupid concept because having a child in the USA is not an anchor, as we’ve been seeing the last few months).
The other interesting wrinkle is that to be president one must be “natural born” citizen; which is generally interpreted as “not including a naturalized citizen”.
And what’s a permanent resident? We’ve already seen people who are in the process attending court being grabbed; or students having their visa revoked (and not being informed of it until after they are kidnapped off the street). Or their temporary certification to be in the country, like the ones accused of “they’re eating the dogs, they’re eating the cats!” (Specifically admitted on special permits at the time because of the conditions in Haiti) The process just gets messier and messier the deeper this gets.
And how would that apply to children born at home, with a midwife, in a cab, etc. Who is legally entitled (or capable) of certifying citizenship? Back to the question of what constitutes documentary proof. Would we now need a check box on birth certificates for “citizen”? (Side note, when a state require “proof of citizenship” to register to vote, what is acceptable proof? )
He can’t say it, because it isn’t a legal term, and in fact, is considered derogatory, but “anchor babies” is what he’s trying to end (right now-- whether he has greater goals, I’m not speculating).
Probably everyone here knows the term anchor babies, but just in case, they are children born here to people here illegally (whether they arrived illegally, or just overstayed a visa, or whatever), and are therefore themselves citizens, but
often can claim dual citizenship by the.laws of their parents’ country/ies (which the US doesn’t like, because the US does not recognize dual citizenship, and,
here’s where the term “anchor baby” comes in, are often used as a pretext for the parents, or at least the mother to gain legal residency, and sometimes even bring over older children born elsewhere. The “anchor baby” is a US citizen and cannot be deported, but also would end up in the already-overburdened child welfare system if the parent[s] are deported. So a judge lets the mother, or both parents, and siblings born elsewhere, stay.
Eliminate anchor babies, and suddenly a whole lot of people become deportable without sending very young children into the welfare system.
My personal take:
I’m against this. I support birthright citizenship, even of there are people having babies specifically to take advantage of it. I don’t care. We are supposed to be the place that takes in the downtrodden. Kicking out people looking for a better life is just wrong.
spoilered because it is not factual information.
No, being a U.S. citizen is a fucking tax nightmare, not an advantage. Unless this well-off person actually lives and works in the U.S.
Well, yes, but those born here and raised elsewhere do not have to claim citizenship, and the US cannot tax them. The US does not go hunting for people born here, who went home with their parents as infants, and never had anything further to do with the US, in order to impose Federal tax upon them.
Aside from the fact that is would not be cost-effective, the US does not recognize dual citizenship.
Regarding proof in hospitals:
I would not be shocked if in my lifetime, these 3 things happen:
DNA tests become so cheap and quick, and surrogacy widespread enough, that hospitals routinely test the DNA of all mothers and children, and all men who wish to be named on birth certificates. Married partners of mothers, who are not biologically related to the child, will probably need to show ID and the marriage license to be named, but a password[-protected link on your phone would suffice.
Every child born here not in a hospital will need to have the DNA tests done within a certain period of time, and at least one parent will need to show proof of citizenship to certify the child as a natural-born citizenship. If neither parent is, some sort of proof that the child was actually born in the US will need to be submitted. I am not going to speculate on what that might be.
There will be a child born to a legally married lesbian couple or a man-woman couple, born at home, who is DNA matched to the bio-mom (or in the case of the opp-sex couple, an anonymous sperm donor has been used). Bio-mom is not a citizen, but legal partner parent is, and is legally a parent immediately from the child’s birth (or earlier, if those fetal-citizenship laws are passed) There will be a lawsuit over whether this child gains citizenship through the legal partner parent.
I don’t know what the ultimate decision will be in #3, but years of “marital presumption” might be viewed as a precedent, and the friendliness of the current administration toward SSCs, and birthright citizenship will matter.
I might not have expected these things in my lifetime if you’d asked me 20 years ago, but when I was young, like in college, I marched for gay marriage, yet did not think it would happen in my lifetime, and I did not think a black US president would happen in my lifetime. There are lots of things I could imagine, and believed would happen, but not in my lifetime.
I’m 58, and conservatively have 15 more years. I get yearly check-ups of everything, and don’t smoke, drink, nor eat much added sugar, so 20 is likely. That’s the technology and social progress of 2005 to now, adjusted logarithmically for the increasing pace.
Of course, it also assumes the US is not in its dotage, and about to descend into perturbation, disorder, delirium, and sheer catatonia.