Just hours after taking the oath of office, President Trump issued an executive order to end automatic birthright citizenship. It instructs government agencies to stop issuing Social Security numbers to children who do not have at least one parent who is a U.S. citizen or permanent legal resident of the United States -- and clarifies that these children are not eligible for citizenship and the federal benefits it confers.
The very next day, 22 attorneys general from Democrat-run states sued to block the order.
Their lawsuits are designed with the expectation that a district court judge will enjoin Trump's executive order. More than likely, the Supreme Court will eventually weigh in, perhaps even expediting the case.
Contrary to conventional wisdom, and the arguments put forward by the attorneys general bringing the suits, neither the Constitution nor Supreme Court precedent in the oft-cited 1898 Wong Kim Ark case requires the federal government to grant citizenship to the children of non-immigrants.
The Fourteenth Amendment's Citizenship Clause states that: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
In today's parlance, the phrase "subject to the jurisdiction thereof" seemingly refers to the geographic reach of U.S. law.
If that interpretation were correct, the federal government would have no choice but to grant citizenship to all children born here, regardless of their parents' legal status. After all, even illegal aliens are certainly "subject" to American criminal and civil laws -- as the many illegal aliens currently serving prison sentences can attest.
But that prevailing interpretation is not correct -- at least not under an originalist view of constitutional law. English, like any other language, evolves with time. And in the 1860s, the original meaning of "subject to the jurisdiction" did not primarily refer to geography. Rather, it meant "not subject to any foreign power."
The Amendment's drafters clarified this explicitly, on multiple occasions.
Sen. Jacob Howard, who introduced the Citizenship Clause, reassured critics who were worried that the amendment would confer citizenship on Indians hostile to the U.S. government. He assuaged their concerns, promising that the clause "will not, of course, include persons born in the United States who are foreigners [or] aliens." Sen. Lyman Trumbull further explained that "subject to the jurisdiction" means "[n]ot owing allegiance to anybody else."
That's why, however we may feel about it today, the children of sovereign Indian tribes were not considered American citizens under the Amendment -- an understanding upheld by the Supreme Court in the 1884 Elk v. Wilkins case, where the justices ruled that "an Indian, born a member of one of the Indian tribes within the United States" is not a citizen "merely by reason of his birth within the United States and of his afterwards voluntarily separating himself from his tribe and taking up his residence" among U.S. citizens. It wasn't until 1924 that Congress conferred citizenship on Indians.
The same principle holds true for the children of non-immigrants residing in the United States -- a reality made clear by the history surrounding the oft-cited, and often misinterpreted, Wong Kim Ark case involving a child born in San Francisco in 1873 to Chinese immigrants.
It's crucial to note that, at the time of Wong's birth, there was no concept of illegal immigration. It wasn't until the Chinese Exclusion Act of 1882 that Congress first restricted the entry and naturalization of foreigners based on nationality or numerical quotas.
In 1898, the Supreme Court considered whether Wong, "a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business . . . becomes at the time of his birth a citizen of the United States."
The justices ruled that Wong and other similarly situated children had indeed become citizens, because at the time of his birth, his parents were "permitted by the United States to reside here" -- even if they were later made ineligible for entry or naturalization by the Exclusion Act.
Simply put, the Supreme Court has never ruled that the Constitution requires birthright citizenship for children of non-resident aliens. The Wong Kim Ark case solely concerned babies born to legal immigrants. It is incomprehensible to think that the drafters of the 14th Amendment intended it to apply to the children born to parents illegally present within the borders of the United States.
With the sole exception of Canada, no other developed country offers automatic birthright citizenship to the children of illegal aliens. The vast majority of other nations only grant citizenship to the babies of existing citizens or legal permanent residents.
And it's easy to understand why. Automatic birthright citizenship incentivizes illegal immigration, birth tourism, and inflates welfare rolls.
Foreigners know that if they illegally enter the United States, any subsequent offspring will obtain citizenship, become eligible for federal benefits, and can eventually sponsor their parents for green cards. Nearly 60% of households headed by illegal aliens rely on at least one welfare program, from earned income tax credits to Medicaid to food stamps. Frequently, those illegal alien adults only qualify for the programs thanks to their U.S.-born children.
By comparison, fewer than four in ten households headed by U.S. citizens rely on welfare.
This isn't a small-scale problem. In 2018, the Center for Immigration Studies estimated that illegal immigrants account for nearly 8% of U.S. births -- around 297,000 babies -- and that 2.2 million households headed by illegal aliens were receiving welfare. Those figures are certainly higher now, given the historic surge in illegal immigration under the Biden administration.
If President Trump's executive order reaches the Supreme Court, the justices have every reason to rule that federal agencies have no obligation to reward the children of non-immigrants with automatic citizenship. Such a ruling would be legally sound, wouldn't require overturning Wong Kim Ark, would make American taxpayers better off, and would restore the proper value to U.S. citizenship.
Eric Ruark is Director of Research for NumbersUSA.