Fire Hydrant of Freedom

Fifth

https://claremontreviewofbooks.com/digital/birthright-citizenship-a-response-to-my-critics/

Jul 22, 2018 Digital Exclusive
Birthright Citizenship: A Response to My Critics
It's time to find a reasonable way forward.

by Michael Anton
 
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I expected the reaction to a recent op-ed I published calling for the end of birthright citizenship to be cantankerous. I even expected it to be hysterical—from the Left. I did not expect self-described “conservatives” to be just as hysterical as the Left, and to use precisely the same terms. “Nativist.” “Xenophobe.” “Bigot.” “Racist.” “White nationalist.” “White supremacist.”

One point I’ve been making for a while is that one faction of “conservatism”—let’s call it the anti-Trump wing, although the phenomenon long predates Trump—sounds and acts with every passing year more like a “conservative” subdivision of the Left. Like the Left, they don’t want to debate; they want to call those they disagree with evil. For what are those epithets supposed to mean, if not “evil”?

Whether or not to have birthright citizenship for the children of noncitizens is one such fundamentally political question. But like so many other political questions, this one is ruled out of bounds by scholars, lawyers, experts, pundits, and professional moralists.

The American people did not willingly, knowingly, or politically adopt birthright citizenship. They were maneuvered into it by the Left and by the Left-allied judiciary. They’ve never debated it or voted on it. They’ve simply been told that it’s required by the Constitution.

Polling shows that a sizable number of Americans—though not a majority—support ending birthright citizenship. Were the nation to hold an honest debate, those numbers might rise (indeed, I’m confident they would). Of course, that’s precisely what the liberals and their allies on the “conservative Left” fear. It’s not only their legal arguments that are weak; their political arguments are even weaker. Since they know they would lose the debate, they are desperate not to have it. Which is why they demonize anyone who tries to raise it.

The Specifics

The most allegedly devastating response to what I wrote accuses me of changing a quote, and by doing so changing the meaning of the quote in ways that were not just self-serving but wholly contrary to the original meaning of the quote. This argument (cited by all the conservatives) is offered by a liberal scholar who purports to be sticking up for the original meaning of the 14th Amendment.

Part of me wants to be both surprised and heartened to read a liberal scholar stand up for originalism. I don’t recall ever seeing that in my lifetime. Maybe the conservative movement has made more headway than I thought!

At any rate, I did add a bracketed word to the quote, for clarity. This is called “a lie.” Judge for yourself.

Here is the original quote, from Senator Jacob Howard. Referring to the citizenship clause of the 14th Amendment, he says:

This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

Here is how I quoted it. I said that the amendment explicitly excludes from citizenship

persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.

The charge is that the added “or” completely changes the meaning. The intent, it is said, is to exclude from citizenship only those “who belong to the families of ambassadors or foreign ministers.”

But if that is what was meant, the language would have to read “who are foreigners OR aliens who belong …” To get to the meaning insisted upon, one must not merely add “or” after foreigners, one must also delete both commas. Getting rid of just the first one will not do.

But that’s not what’s in the text. What is there is a list missing its final conjunction. Apples, oranges, bananas. Remembering my high school English, I simply added one for the reader. Apples, oranges, [or] bananas.

It is necessary to note that this quote (and most of those that follow) come from the Congressional Globe, an ancestor to the Congressional Record, which records Congressional debates. Unless otherwise noted, all the quotes that follow are from the Globe’s account of the Senate the debate on the 14th Amendment, May 30th, 1866. They do not purport to be exact transcripts, especially with regard to punctuation. So to be certain we really know what Senator Howard was trying to say, we have to read the whole debate and place his comment in context.

Senator Trumbull says that “subject to the jurisdiction” means:

not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States. [Emphasis added.]*

Senator Trumbull does not say “Not owing allegiance to a foreign government for whom one serves as an ambassador or minister.” He plainly says “anybody else,” i.e., any foreign nation or tribe whatsoever. To hammer the point home, he continues: “and being subject to the complete jurisdiction of the United States.” To be “subject to the complete jurisdiction of the United States” is to owe allegiance to no other country or tribe.

The word “complete” is important. The authors of the amendment affirmed that all persons present in U.S. territory are subject to U.S. law; that is, both obligated to obey it and entitled to its protection for person and property. This is the partial jurisdiction that any sovereign state claims over aliens on its soil. But, they continued, that does not entitle anyone to citizenship. Senator Edgar Cowan of Pennsylvania clarifies:

If a traveler comes here from Ethiopia, from Australia, or from Great Britain, he is entitled, to a certain extent, to the protection of the laws. You cannot murder him with impunity. It is murder to kill him, the same as it is to kill another man. You cannot commit assault and battery on him, I apprehend. He has a right to the protection of the laws; but he is not a citizen in the ordinary acceptation of the word.

Senator Howard further clarified the meaning of the jurisdiction clause, endorsing the interpretation of Senator Trumbull:

I concur entirely with the honorable Senator from Illinois, in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.

Quite obviously—and by definition—the “constitutional power of the United States” is not “coextensive” with foreign nations. Also by definition, the “same jurisdiction in extent and quality as applies to every citizen of the United States now” cannot apply to foreigners. To claim otherwise is to claim that U.S. law applies to foreigners even when they are residing in their own countries! It is to claim, in effect, that U.S. law rules the world. Which is absurd.

Senator Reverdy Johnson of Maryland added yet another supportive, clarifying comment:

Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign Power—for that, no doubt, is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States. [Emphasis added.]

He says the amendment defines citizens as “all persons born in the United States and not subject to some foreign Power.” Not merely not the children of ambassadors, but “not subject to some foreign power.” They also must be “born of parents who at the time were subject to the authority of the United States.”

To further clarify the meaning of the proposed amendment, Senator Johnson read the first clause of the Civil Rights Act of 1866, passed earlier in the same year by the same Congress. That law’s first clause reads:

all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens. [Emphasis added.]

There are thus two criteria for citizenship: being “born in the United States” and “not subject to any foreign power.” Just the first doesn’t cut it. Language doesn’t get any plainer than that.

If we need further proof of what this language means and was intended to mean, we have this from Representative John Bingham of Ohio, who has been called “the father of the 14th Amendment.” In an earlier debate, explaining to the House the purpose and meaning of the citizenship clause of the 1866 Civil Rights Act, he said:

I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. [Emphasis added.]

“

• f parents not owing allegiance to any foreign sovereignty.” Again, not just to a foreign embassy, but to “any foreign sovereignty.”

Therefore, “subject to the jurisdiction thereof” clearly means exactly what Senator Trumbull said it means: “not owing allegiance to anybody else.” A foreigner clearly owes allegiance to somebody else: the country in which he is a citizen or subject.

What about the Indian Tribes?

Objectors to my argument cite the question of Indians, not realizing that it undermines rather than strengthens their case. I quote one of my critics in full to avoid—probably futilely—being again accused of lying:

Diplomats and their children had immunity under international law; American Indian tribes were governed by treaties and treated as separate sovereigns. Every other individual born in the U.S.—to citizens and foreigners alike—is “subject to the jurisdiction” of the federal government. Over and over again during floor debate, the drafters and supporters of the 14th Amendment explained that they intended these two groups—and only these groups—to be excluded from birthright citizenship.” [Emphasis in the original.]

But the very quote from Senator Howard this same critic misused to call me a liar undercuts this assertion. Look at it again:

This [citizenship guarantee] will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. [Emphasis added.]

Notice what’s missing there? Do you see “Indian tribes”? I don’t.

If Indians are one of “only” two groups not entitled to birthright citizenship, then they should be there, right? There are only two ways to read the above quote. The first is that Indians are included among “every other class of persons,” in which case they are citizens under the 14th amendment. But the alleged refutation of my argument absolutely depends on Indians being one of “only” two groups who are not entitled to birthright citizenship. If they are to be counted among “every other class of persons,” then they are citizens whose children are entitled to birthright citizenship under the 14th amendment.

The other possibility is that Senator Howard regards Indians as belonging to the class “foreigners, aliens.” Otherwise, Indians are not on Senator Howard’s list, a list which the Senator himself says is exhaustive.

Indeed, we know this is the answer because Senator Howard told us. A bit later in the same debate, he explicitly categorizes Indians as foreigners:

Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our jurisprudence, as being quasi foreign nations. [Emphasis in the original.]

The argument against me hinges reading the earlier quote as inextricably linking the clause “foreigners, aliens” to the next clause, which reads “who belong to the families of ambassadors or foreign ministers.” In other words, this line of attack demands that the quote be interpreted to mean that the only “foreigners” and “aliens” meant are the relatives of ambassadors and ministers. But that absolutely cannot be if Indians are among the “only” two groups not entitled to birthright citizenship. If that is the case, then they must have been counted as another subset of “foreigners”—which Senator Howard explicitly affirms. If Indians are among the class “foreigners, aliens” then clearly those two words were not meant to specify only the relatives of ambassadors and ministers but other foreigners as well—which the other quotes I cited explicitly affirm. The only way around this point is to torture the text even further and assert that Indians are not merely the only foreigners meant, but also that the only Indians who don’t get birthright citizenship are the relatives of Indian ambassadors.

Senator Howard continues by noting that the fact that “we make treaties” with another people is, in and of itself, proof that “they are not subject to our jurisdiction. If they were, we would not make treaties with them.” We, of course, make treaties with foreign nations as well as with Indian tribes. Indeed, as the Senator had already explained, we make treaties with Indian tribes because we treat them as foreign nations.

In sum, to sustain the line of attack being used against me, one must insist on three things. First that only the first quote from Senator Howard is authoritative in interpreting the 14th Amendment. Second, that the quote means only what my critics say it means and is open to no other possible interpretation. Third, that all the other quotes cited which clearly state that the framers of the Amendment equated “subject to the jurisdiction” with “not owing allegiance to anybody else” are somehow irrelevant. Even though they were spoken in the same debate—some of them to express agreement with Senator Howard!

The Original Purpose of the 14th Amendment

Perhaps one reason people are so confused about the meaning of the 14th Amendment is because they have forgotten its fundamental purpose, and the context of the debate.

The purpose of the 14th Amendment was to settle forever the question of the citizenship status of freed slaves and of other free blacks then living in America. That was also the core purpose of the Civil Rights Act of 1866. But some who wanted to continue to deny citizenship to free blacks cited the Dred Scott decision as superseding that Act. A statute was deemed to be insufficient, whereas a Constitutional Amendment would supersede all that came before.

Senator Howard says of the amendment’s purpose that it:

settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.

Surely Senator Howard did not refer to the citizenship of the children of foreign diplomats as a “great question.” Large or small, that question had not only not “long been a great desideratum in the jurisprudence and legislation of this country,” it had hardly come up at all.

The bedeviling citizenship question of the age was how to treat freedmen. The “great desideratum” clearly refers to the Dred Scott decision, its fallout that helped bring on the Civil War, and the ensuing post-bellum controversy over whether that ruling allowed southern states to deny citizenship to free blacks. The 14th Amendment ends the controversy. Dred Scott is overturned. Federal citizenship supersedes and determines state citizenship. No state may deny citizenship to blacks, who were unquestionably “born … in the United States” and “subject to the jurisdiction thereof.” (For the quote-checkers, the ellipsed words are “or naturalized,” which clearly do not apply to freed slaves.)

In the debate, we find much discussion of Indians because the original draft of the amendment left their status unclear. That original draft did not include the clause “subject to the jurisdiction thereof.” It came to be added because some argued that without that clause, the amendment would automatically grant citizenship to all Indians, who were unquestionably “born in the United States”—that is, in the physical territory of the United States—but who were considered non-citizens because their allegiance was to their tribes and not to the United States. The clause was added to equate Indians with foreigners, who were already understood to be non-citizens. Indeed, inherent in the very concept of citizenship is the fact foreigners are not citizens!

There is nothing whatsoever in the debate that explicitly states, implies, or contextually suggests that the framers of the 14th Amendment meant to grant birthright citizenship to the children of illegal immigrants. They don’t talk about illegal immigration much because on that question, there was no need for debate. The children of persons “subject to any foreign power,” “owing allegiance to anybody else” were—all agreed and the law already declared—not citizens.

When they do talk about immigration—particularly Senator Cowan—they express concern that the amendment be carefully drafted so as not to allow or provoke unchecked immigration by offering too broad a definition of citizenship. (As an aside, I note that Senator Cowen’s long speech is quite triggering to our ears in 2018. It’s amusing to be called “racist” by people whose arguments rest on the views of men whose words I blush to read.)

To return to an earlier point, my encouragement at seeing a liberal defend originalism was clearly misplaced. First, because he did so incompetently. Second, because he did so insincerely. Indeed, his incompetence was in service to his insincerity. The goal, as ever for liberal jurisprudence, is to arrive at the desired policy result. If an originalist interpretation can get the liberal there, he will use it. If he can conjure a false originalist interpretation, he will use that—especially in a debate with an actual originalist. If no appeal to originalism, true or false, is possible, he will appeal to precedent and call it binding for all time. And if the appeal to precedent turns out to be impossible, he will invoke the “living Constitution.”

Does anyone believe that, for the Left, this argument is really about constitutional interpretation? No matter what I or anyone said, would anyone on the Left ever concede that birthright citizenship might not be constitutionally required, let alone prudent? Of course not.

One of my critics on the “conservative” Left who once claimed to be an originalist illustrates the point. He says that the simple fact of birthright citizenship being “age-old” makes it somehow sacrosanct. There is not even a pretended appeal to the Constitution. Beyond this, someone with a philosophic education ought to know that it is a mistake to identify the old with the good. Even if it were not, his argument still fails on its own terms. Before the Wong Kim Ark decision of 1898, America did not have birthright citizenship. Hence the true “age-old” practice—going back to the beginning of the republic—is not to have it. If the old is the good, why is the younger birthright citizenship practice sacrosanct but the prior, and far-older practice of granting citizenship only to the children of citizens and lawful immigrants bad?

This, ladies and gentlemen, is the quality of “conservative” argument in 2018.

Current and Past Birthright Citizens

I have been accused of wanting to strip citizenship from those already born to illegal immigrants and thus already granted citizenship. Of course, I said nothing of the kind, nor does my argument demand any such conclusion. We may grant that our current understanding of birthright citizenship is a mistake and correct that mistake without retroactively stripping anyone of citizenship. Indeed, I believe that the American people in their generosity would support exactly such a measure. Correct the issue going forward. Make clear to the world that the United States will no longer grant birthright citizenship to the children of non-citizen illegal immigrants, birth tourists, or people here on temporary work or student visas. The citizenship of those already born would forever be honored—even enshrined into law if necessary.

This is a reasonable way forward. The alternative—illegal immigration, population growth, and all their attendant problems forever—is not sustainable. Nor is it—once again—in the interests of the current citizens of the United States, including those born to illegal immigrant parents.

Birthright citizenship—as I and others have argued—is a magnet for illegal immigration, an ongoing problem that worsens many of our other problems. The longer we continue the practice, the more illegal immigration we will get, with all its ensuing effects. As I have argued elsewhere, the United States does not need more people. We need to do a better job meeting the needs of the citizens we already have.

Birthright citizenship also undermines the consent-based social compact, which is the basis for the legitimacy of the U.S. government and for all our law, constitutional and otherwise. If we don’t have a social compact, we don’t have a country. A social compact that can be joined contrary to the will of its existing members is an impossibility, a self-contradiction.

It’s no wonder, then, that only around 30 countries out of nearly 200 practice birthright citizenship. The highest accounting that I have seen says 33. There are 197 countries in the world (193 UN members, two observers, and two non-members). Thus 83% of the world’s nations do not allow birthright citizenship. Those countries that do have a combined population of 958 million (in all cases, rounding estimates up in order not to be accused of fudging the numbers in my direction). According to the UN, the world population is today 7.6 billion. Our “conservatives” insist that opposition to birthright citizenship is “nativist, xenophobic, bigoted, racist, white nationalist, white supremacist” and more. This means that 6.642 billion of the world’s people (give or take) must also be “nativist, xenophobic, bigoted, racist, white nationalist, and white supremacist.” The latter two would truly be something, given how few of those people are white.

Clarity Over Agreement

It’s an ugly thing to hear and read the worst of these epithets from ostensible allies. But of course, those hurling these calumnies are in no sense allies. That was clear in 2016, if not before, and it’s even clearer now. Clarity is good. Let’s all make clear where we stand on the issues of the day and in relation with others in the big tent we used to call “the Conservative Movement.”

It’s clear to me that those who use this kind of language are leftists—leftists in rhetoric and in philosophy. These epithets were hurled in response to a column that mentions race only in the context of stating that it was necessary and just that the United States firmly declare that freed black slaves were citizens.

A noted scholar once remarked, about the political swirl of the 1960s and ’70s, that he was tired of being fired upon by his friends. It made more sense to arrange things so that the people shooting at him were his enemies. Some kind of intellectual realignment is similarly necessary today. Those who nominally gather together in the big tent cannot continue to do so, however loosely, on current terms. Continually being knifed in the back by ostensible allies is not a sustainable situation.

I see three possibilities. First, the knifers could stop being fratricidal, stop being leftist and learn something about the true basis for conservative principles, so that they stop becoming hysterical over silly errors arising from their own false understanding. Second, one side or the other will take control of the tent and kick the others out. Third, all this continued acrimony might destroy the tent, causing us all to scatter and regroup in more stable and like-minded coalitions.

If the first possibility doesn’t pan out, I don’t know which side will end up owning the word “conservatism.” I’m not sure I even care. The word is now so tainted with error, imprudence, hubris, sanctimony, and failure that it might be better to let others keep it. I do know that change must come—and is coming.

*In the original version of this article, I mistakenly stated that the editors of my earlier op-ed had changed the attribution of a quote from Senator Lyman Trumbull to Senator Jacob Howard. In fact, the draft I submitted to the Washington Post incorrectly attributed that quote to Senator Howard and the Post’s editors corrected the attribution to Trumbull. I regret making this error and apologize to the Post’s editors.

Michael Anton is the Jack Roth Senior Fellow in American Politics at the Claremont Institute, a lecturer at Hillsdale College, and a former national security official in the Trump Administration.

Third

https://www.heritage.org/the-constitution/report/the-political-case-confining-birthright-citizenship-its-original-meaning

The Political Case for Confining Birthright Citizenship to Its Original MeaningSeptember 6, 2019 About an hour read Download Report
swearer
Amy Swearer
@AmySwearer
Senior Legal Fellow, Meese Center
Amy is a Senior Legal Fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.
 SummaryThere is good reason for the United States to reconsider its long-standing policy of automatically granting citizenship to all children born on U.S. soil, regardless of parental immigration status. The policy—which is not mandated by the Fourteenth Amendment—incentivizes illegal immigration, contributes substantially to the overall economic burden imposed on U.S. taxpayers, and raises serious national security concerns. Ultimately, the statutory definition of “citizen” is not as clear as it was prior to 1940, but the President may order executive branch agencies to abide by a more narrow and good faith interpretation of who is or is not a citizen under existing federal law.
Key TakeawaysUniversal birthright citizenship is poor public policy that is not constitutionally mandated.Despite repeated promises to end the policy of granting universal birthright citizenship, President Trump has yet to take action.Rendering citizenship policy consistent with the original understanding of the Constitution would significantly benefit America’s economy and national security.
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Aprevious Legal Memorandum explored the legal case for a much more limited application of birthright citizenship than is practiced under current U.S. policy1
Amy Swearer, The Citizenship Clause’s Original Meaning and What It Means Today, Heritage Foundation Legal Memorandum No. 243 (May 14, 2019).

 and ultimately concluded that the Fourteenth Amendment’s Citizenship Clause was intended to afford—and was originally understood as affording—birthright citizenship only to those U.S.-born children whose parents were, like the freed slaves, subject to the complete jurisdiction of the United States. In a modern immigration context, this would mean that the Constitution only mandates birthright citizenship for the U.S.-born children of citizens, nationals, and lawful permanent residents (also known as immigrant aliens or green card holders).

This Legal Memorandum will analyze the political justifications for reconsidering the nation’s long-standing policy of granting birthright citizenship to almost all children born on U.S. soil—regardless of the immigration status of the parents. These political justifications can be boiled down to three main concerns: the electorate, the economy, and national security. It will also explore the legislative history of relevant statutes regarding immigration and nationality in order to ascertain whether Congress adopted statutory definitions of citizenship that are much broader than the constitutional definition.

Finally, this memorandum will sift through the legislative history of the changes in the statutory definition of “citizen” to determine whether there is room for the executive branch to act according to a more restrictive definition. It ultimately concludes that, while the statutory definition of “citizen” is not as clear as it was prior to 1940, the ambiguity enables the President to enforce the law according to a good faith interpretation of what Congress intended.

I. Political Justifications for Reconsidering Current U.S. Policy
There are three main policy-based justifications for a meaningful re-examination of the federal government’s current practice of granting universal birthright citizenship: political expediency, economic reality, and national security. From the viewpoint of political expediency, President Trump repeatedly promised throughout his election campaign and during his presidency to “end birthright citizenship” as part of a broader focus on immigration policy reform. These promises appear to have spurred voter turnout in his favor, and Americans in general tend to have a favorable view of efforts to reduce illegal immigration.

Further, granting citizenship to the U.S.-born children of illegal aliens compounds already significant illegal immigration–related economic burdens on the American taxpayer. Economic considerations also arise in the context of the so-called birth tourism industry, which encourages foreign nationals to give birth to U.S. citizen children through the promise of gaining the financial advantages of citizenship while avoiding corresponding duties. Finally, the birth tourism industry in particular raises serious national security concerns. The United States should be incredibly wary of the prospect of hundreds of thousands—even millions—of “citizens” raised in hostile nations, all of whom will soon be able to vote in U.S. elections, hold U.S. government jobs, and even join the U.S. military.

A. President Trump Repeatedly Pledged to End Universal Birthright Citizenship.
President Trump’s position that the Fourteenth Amendment does not mandate universal birthright citizenship predates his 2016 presidential campaign.2
In 2011, long before declaring his intent to run for office, President Trump published the book Time to Get Tough: Making America #1 Again. This was republished in 2015 under the new title Time to Get Tough: Make America Great Again. In both editions, Trump decried the absurdity of America’s current birthright citizenship policy, calling it “the root cause of all the welfare payments to illegal aliens,” and noting that the Fourteenth Amendment “was not intended to guarantee untrammeled immigration to the United States.” See Donald J. Trump, Time to Get Tough: Make America Great Again 140 (2015).

 He affirmed both during and after the Republican primaries that, as President, he would work to end the current U.S. policy of granting citizenship to the U.S.-born children of illegal aliens. This position and pledge of action comprised a key part of then-candidate Trump’s plan for immigration reform, which likely played a substantial role in his ultimate victory.3
See James G. Gimpel, Immigration Policy Opinion and the 2016 Presidential Vote, Ctr. Immgr. Studies (Dec. 2017), https://cis.org/sites/default/files/2017-12/gimpel-2016-vote.pdf; Philip Klinker, Yes, Trump’s Hard-Line Immigration Stance Helped Him Win the Election—But It Could Be His Undoing, L.A. Times (Apr. 17, 2017), https://www.latimes.com/opinion/op-ed/la-oe-klinker-immigration-election-20170417-story.html; Harry Enten & Perry Bacon, Jr., Trump’s Hardline Immigration Stance Got Him to the White House, FiveThirtyEight (Sept. 12, 2017), https://fivethirtyeight.com/features/why-polls-showing-daca-as-popular-even-among-republicans-dont-tell-the-whole-story/.



The President’s campaign promises were unambiguous: Universal birthright citizenship is poor public policy that is not constitutionally mandated—and ending it would be a significant part of his overall plan for immigration reform. For example, during the early days of his Republican primary campaign, then-candidate Trump released a 1,900-word document outlining his three core principles for immigration reform, which included ending universal birthright citizenship as a component of “defend[ing] the laws and constitution.”4
Trump Campaign, Immigration Reform that Will Make America Great Again (archived), https://assets.donaldjtrump.com/Immigration-Reform-Trump.pdf.



Then-candidate Trump doubled down on this plan after journalists and other presidential candidate hopefuls responded negatively to it or insisted that such a policy would require a constitutional amendment, subsequently reaffirming his position in interviews with CNN’s Chris Cuomo and Fox News’ Bill O’Reilly.5
Transcript: Early Start—Trump Goes After Bush on Iraq; Bangkok Bombing Manhunt Widens; Deadly Police Shooting Ignites Protests, CNN (Aug. 20, 2015), http://www.cnn.com/TRANSCRIPTS/1508/20/es.02.html; Transcript: Donald Trump’s Immigration Plan, Fox News (Aug. 18, 2015), http://www.foxnews.com/transcript/2015/08/19/donald-trump-immigration-plan.html.

 He continued throughout the primaries—including during campaign rallies,6
See Amy Davidson Sorkin, The Anchor-Baby Question at the G.O.P. Debate, The New Yorker (Sept. 15, 2015), https://www.newyorker.com/news/amy-davidson/the-anchor-baby-question-at-the-g-o-p-debate.

 media interviews,7
See The Bill O’Reilly Blues, Fox News (Nov. 11, 2015), http://video.foxnews.com/v/4608339663001/?playlist_id=930909812001#sp=show-clips; Meet the Press, Trump: Birthright Citizenship Not in the Constitution, NBC News (Aug. 14, 2016), https://www.nbcnews.com/meet-the-press/video/trump--birthright-citizenship-not-in-the-constitution-599319619848.

 and even during an official televised debate with other GOP candidates8
See Transcript: Top-Tier CNN Republican Debate 2015, CBS News (Sept. 17, 2015), https://www.cbsnews.com/news/transcript-top-tier-primetime-cnn-gop-republican-debate-2015/.

—to denounce birthright citizenship for the children of illegal immigrants and promise to seek an end to it as president. Despite these promises, during his two years in office, President Trump has remained largely silent—and completely inactive—on the issue of birthright citizenship, focusing instead on promises to end President Obama’s Deferred Action for Childhood Arrivals program and build additional miles of wall along the southern border.

B. Universal Birthright Citizenship Imposes Significant State and Federal Economic Burdens.
The current U.S. policy of granting unquestioned universal birthright citizenship to virtually all children born within its geographical boundaries is economically detrimental in three major ways:

The policy incentivizes and rewards illegal immigration, which contributes substantially to the overall economic burden imposed on U.S. taxpayers.
The policy has single-handedly created the birth tourism industry, a burgeoning market ripe with opportunities for foreign nationals to exploit public benefits in the United States.
Because the U.S.-born children of both illegal and nonimmigrant aliens can later sponsor the immigration of their family members to the United States in a seemingly endless process of “chain migration,” the majority of the nation’s annual immigration flow is family-based and operates entirely independent of economic considerations or labor needs.
Financial Incentives and Rewards of Illegal Immigration. Every year, an estimated 250,000 to 400,000 children are born in the United States with at least one parent who is illegally present in the country.9
See, e.g., Jeffrey S. Passel & Paul Taylor, Unauthorized Immigrants and Their U.S.-Born Children, Pew Research Ctr (Aug. 11, 2010), https://www.pewresearch.org/wp-content/uploads/sites/5/reports/125.pdf; Steven A. Camarota et al., Births to Illegal Immigrants in the U.S., Ctr. Immgr. Studies (Oct. 2018), https://cis.org/sites/default/files/2018-10/camarota-imm-births-18_1.pdf.

 While the precise percentage of children born with two illegal alien parents is unknown, similar statistical indices indicate that somewhere between one-half and two-thirds of these children are likely born without either parent having legal—much less citizen or immigrant alien—status.10
For example, in 2016, a Migration Policy Institute analysis calculated that there were 4 million U.S.-born children residing in the United States with at least one parent who was unauthorized. Julia Gelatt & Jie Zong, Settling In: A Profile of the Unauthorized Immigrant Population in the United States, Migration Policy Inst. (Nov. 2018). Of those 4 million children, 1.3 million were estimated to live with two parents who were both unauthorized, while another 909,000 children lived with only one parent who was unauthorized. Id. at 4. Presumably, for at least some of those 909,000 U.S.-born children living with only one parent who is unauthorized, the second biological parent may be a legal alien or U.S. citizen. The remaining 1.8 million U.S.-born children had one parent who was a legal immigrant, but it is unclear whether the study used the term “legal immigrant” to encompass non-lawful permanent residents, whose children would not qualify for birthright citizenship under the original meaning of the Fourteenth Amendment.



Under current U.S. policy, the federal government recognizes each of these children as U.S. citizens—despite the illegal status of their parents and the fact that the vast majority of them also acquire citizenship in their parents’ native country.11
The vast majority of countries, including the United States, recognize some degree of jus sanguinis citizenship, by which children born abroad of citizen parents are themselves citizens at birth. See U.S. Office of Personnel Management, Citizenship Laws of the World (March 2001), https://www.multiplecitizenship.com/documents/IS-01.pdf. If the U.S.-born children of illegal aliens roughly reflect the demographic distributions of all illegal aliens residing in the United States, it would rarely—if ever—be true that a child born in the United States to illegal aliens does not also at birth attain the nationality of his or her parents. For example, 80 percent of all illegal aliens in the United States are from Ecuador, El Salvador, Guatemala, Honduras, Mexico, the Philippines, South Korea, and Vietnam, all of which automatically consider the U.S.-born children of citizens to retain the citizenship of their parents. Compare id. with Bryan Baker & Nancy Rytina, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2012, Dept. of Homeland Security Office of Immigr. Studies (Mar. 2013), https://immigration.procon.org/sourcefiles/illegal-immigration-population-2012.pdf. The same is true for the countries of origin for the vast majority of birth tourists: China, Nigeria, Russia, and Turkey. Id. It should be pointed out that, although China generally prohibits dual nationality and considers the act of overtly obtaining foreign citizenship to strip a person of Chinese citizenship, this policy is not applied in cases of children born abroad to birth tourists. This is because, under Chinese law, children born abroad of Chinese nationals only fail to obtain Chinese citizenship when both parents have “settled abroad” and the child obtained foreign nationality at birth. See Nationality Law of the People’s Republic of China, Embassy of the People’s Republic of China (last accessed July 12, 2019), http://www.china-embassy.org/eng/ywzn/lsyw/vpna/faq/t710012.htm. In other words, as long as the children of birth tourists are properly registered with the Chinese government upon return to China, they retain both American and Chinese citizenship, even if the Chinese government does not officially recognize the child as anything but a Chinese citizen. Notably, any concerns about statelessness for the U.S.-born children of illegal or nonimmigrant aliens could be dealt with by providing U.S. nationality to U.S.-born children of aliens who cannot otherwise acquire nationality in another country.

 The economic burden imposed on U.S. taxpayers as a direct result of this universal birthright citizenship policy often begins from the very first moments of life for these U.S.-born children of illegal aliens, with state and the federal governments picking up the tab for the cost of the physical births. Federal law requires almost all hospital emergency departments to treat all patients in active labor regardless of their legal status or ability to pay for services.12
See Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (2012).

 Medicaid’s “pregnancy care” provision covers the public cost of delivery or post-partum care for uninsured or low-income individuals in these instances, meaning that ultimately U.S. taxpayers foot the bill.13
This is accomplished through mandated Disproportionate Share Hospital (DSH) payments. Medicaid Disproportionate Share Hospital (DSH) Payments, Ctrs for Medicare & Medicaid Servs. (last visited Aug. 29, 2019), https://www.medicaid.gov/medicaid/finance/dsh/index.html.



According to one estimate, births to illegal alien mothers covered by Medicaid likely cost the federal government $1.24 billion in 2017.14
Matthew O’Brien et al., The Fiscal Burden of Illegal Immigration on United States Taxpayers (2017), Federation for Am. Immigr. Reform 41 (Sept. 2017).

 This estimate assumes that the percentage of illegal alien mothers without insurance is roughly the same as the percentage of citizen mothers without insurance, but illegal alien-headed households are significantly more likely than are citizen-headed households to fall below the poverty line and take advantage of public welfare services.15
See Steven A. Camarota, Welfare Use by Legal and Illegal Immigrant Households: An Analysis of Medicaid, Cash, Food, and Housing Programs, Ctr. for Immigr. Studies (Sept. 2015), https://cis.org/sites/cis.org/files/camarota-welfare-illegals_1.pdf.



The costs of the physical births of the U.S.-born children of illegal aliens are just the beginning of a long set of economic burdens imposed on both the state and federal governments by the nation’s current universal birthright citizenship policy. Although illegal aliens themselves cannot access major welfare benefits, they can—and often do—obtain these benefits on behalf of their citizen children, enabling the benefits to indirectly support the entire family.16
See O’Brien et al., supra note 14.

 These payments effectively act as welfare for the entire illegal alien–headed household by subsidizing the costs of bearing and raising children.17
When taxpayers pick up the costs associated with one or two members of a family, the entire family benefits under the economic principle of fungibility. Consider, for example, a scenario in which an illegal alien family with one child has two more citizen children eligible for a total of $1,000 a month in various welfare benefits like SNAP, Temporary Assistance for Needy Families (TANF), and Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). Because the costs would otherwise be borne by the illegal alien parents and not the citizen children, it is actually the illegal alien parents who receive what amounts to a $12,000 annual salary increase for the basic provision of the entire five-person household. The $1,000 a month increase is not hypothetical, but fairly reflective of the reality of average benefits received. The average SNAP benefit per person in 2018 was $126 per person per month, the median family of three received $447 per month in TANF benefits in 2018, the average WIC recipient received about $40 in benefits per month, and the average Medicaid benefit for children was roughly $200 a month. Center on Budget and Policy Priorities, A Quick Guide to SNAP Eligibility and Benefits (updated Oct. 16, 2018), https://www.cbpp.org/research/food-assistance/a-quick-guide-to-snap-eligibility-and-benefits.



Nationwide, illegal alien–headed households are twice as likely as households headed by native-born citizens to receive at least one type of major federal welfare benefit.18
Camarota, supra note 15.

 At least one analysis of federal welfare use estimated that illegal alien–headed households receive a cumulative annual benefit of over $10 billion from major programs like Medicaid and the Supplemental Nutrition Assistance Program (SNAP), with another $3.5 billion lost to Medicaid fraud associated with illegal immigration.19
See O’Brien et al., supra note 14. While the report analyzed the total fiscal burden of illegal immigration generally, the estimates for costs related to birthright citizenship alone were staggering: $4.2 billion in Medicaid for the U.S.-born citizen children of illegal aliens; $1 billion in Medicaid births; $1.9 billion in “food stamps” under SNAP; $1 billion under WIC; and $1.7 billion in “child-only” applications for TANF. See id. at 11–13, 21–22. The $10 billion estimate does not include programs that are also generally available to non-citizen illegal alien children, such as the subsidized school lunch programs.

 These estimates are consistent with decades-old analyses by the United States General Accounting Office (since renamed as the U.S. Government Accountability Office), which estimated that $1.1 billion in federal year 1995 were spent on various food and nutrition benefits for the U.S.-born children of illegal immigrants, with a then-estimated illegal alien population of 5 million (compared to today’s estimate of well over 10 million).20
See United States General Accounting Office, Illegal Aliens: Extent of Welfare Benefits Received on Behalf of U.S. Citizen Children, GAO/HEHS-98-30 (Nov. 1997) [hereinafter GAO Report].



This is just the cost born by the federal government. State taxpayers pick up the tab for another estimated $5.5 billion in major welfare services to illegal alien–headed households and $2 billion lost to associated Medicaid fraud.21
O’Brien et al., supra note 14.

 The states do not bear an equal burden in this regard, but instead a small number of states where the greatest percentages of illegal aliens reside are disproportionately affected. Indeed, the 10 states estimated to have the largest populations of illegal aliens account for nearly three-quarters of the total national population of illegal aliens.22
Id. at 3. This is consistent with the findings of the 1997 GAO report, which determined that “[m]ost illegal aliens receiving AFDC or Food Stamp benefits on behalf of U.S. citizen children are located in only a few states.” See GAO Report, supra note 20, at 8.

 Compounding this problem, illegal alien–headed households in these 10 states also tend to receive welfare benefits at disproportionately higher rates than in states with smaller illegal alien populations.23
See Camarota, supra note 15.



Unfortunately, it is often the case that, even in the 10 states most heavily affected by illegal immigration, the economic burdens fall disproportionately on a small number of individual counties. Take Los Angeles County, for example. In 2014, County Supervisor Michael D. Antonovich issued a press release regarding the data collected by the Department of Public Social Services, which indicated that during the 2013 fiscal year the county issued $639 million in welfare and food stamp benefits to illegal aliens on behalf of their citizen children.24
Press Release, Supervisor Michael D. Antonovich, County Spent Nearly $639 Million in the Past Year to Support Families of Illegal Aliens (Aug. 22, 2014), http://michaeldantonovich.com/2014/08/22/county-spent-nearly-639-million-in-the-past-year-to-support-families-of-illegal-aliens/.

 This included $112 million under the state’s CalWORKS welfare program and $200 million in state-issued CalFRESH food stamps.25
Id.

 The County spent roughly 20 percent of its public welfare funds on illegal immigrants, presenting a constant drain on its financial resources.26
Id.

 Further, these data did not include the hundreds of millions of dollars the county spent on public education and health care for illegal alien–headed households.

It is undeniable that many illegal aliens came to the United States in order to better their lives and the lives of their children and would desire to ultimately become American citizens. It is evident, however, that illegal immigration places a tremendous economic burden on U.S. taxpayers, and that the benefits of having U.S. citizen children incentivize and encourage this economically burdensome phenomenon.

Birth Tourism. The United States’ current birthright citizenship policy has directly led to the creation of a burgeoning birth tourism industry that encourages—and even directly assists—foreign nationals in taking financial advantage of U.S. taxpayers. Birth tourism refers to the phenomenon of pregnant foreign women coming to the United States for the sole purpose of giving birth on U.S. soil, thereby making their children U.S. citizens under current U.S. policy.27
See Jennifer Medina, Arriving as Pregnant Tourists, Leaving with American Babies, N.Y. Times (Mar. 28, 2011), https://www.nytimes.com/2011/03/29/us/29babies.html.

 These birth tourists often use one of the hundreds of companies that cater to upper-middle-class women from China, Nigeria, Russia, and Turkey, and that tout the substantial economic and social benefits that come from having a U.S. passport holder in the family.28
See Cynthia McFadden et al., Birth Tourism Brings Russian Baby Boom to Miami, NBC News (updated Jan. 10, 2018), https://www.nbcnews.com/news/us-news/birth-tourism-brings-russian-baby-boom-miami-n836121; Rick Cabrera, Women From All Over the World Come to El Paso to Give Birth, ABC-7 KVIA (updated Aug. 24, 2016), https://www.kvia.com/news/only-on-abc-7-women-from-all-over-the-world-come-to-el-paso-to-give-birth/56409697; Calum MacLeod, Chinese Flock to USA to Give Birth to U.S. Citizens, USA Today (updated Apr. 1, 2015), https://www.usatoday.com/story/news/world/2015/04/01/china-usa-birth-tourists-business-strong/24887837/.

 While the exact number of birth tourists who secure U.S. citizenship for their children every year is unknown, estimates generally range from 30,000 to nearly 80,000.29
See Steven A. Camarota, There Are Possibly 36,000 Birth Tourists Annually, Ctr. for Immigration Studies (Apr. 28, 2015); Glenn Kessler, “Birth Tourists” and “Anchor Babies”: What Trump and Bush Got Right, Wash. Post (Aug. 2015), https://www.washingtonpost.com/news/fact-checker/wp/2015/08/25/birth-tourists-and-anchor-babies-what-trump-and-bush-got-right/?utm_term=.4acfbdf22dfb.

 This number appears to be growing at a significant rate, and some reports indicate that in 2016, as many as 60,000 birth tourists came to the U.S. from China alone.30
See Iuliia Stashevska, South Florida Sees A Boom in Russian ‘Birth Tourists’, USA Today (Mar. 22, 2019), https://www.usatoday.com/story/travel/destinations/2019/03/22/south-floridas-russian-birth-tourism-boom/3244087002/; Jon Feere, Birth Tourists Come From Around the Globe, Ctr. for Immigr. Studies (Aug. 26, 2015), https://cis.org/Feere/Birth-Tourists-Come-Around-Globe.



Although many of these maternity hotels are legitimate businesses that operate within the confines of U.S. law, the industry is rife with opportunities for fraud. One 2015 federal investigation into a birth tourism company catering to Chinese women uncovered a scheme in which the company funneled hundreds of women to public hospitals and coached them in how to obtain reduced rates for indigent mothers.31
See Andrew Blankstein et al., Feds Raid California ‘Maternity Hotels’ for Birth Tourists, NBC News (Updated Jan. 9, 2018), https://www.nbcnews.com/news/us-news/feds-raid-l-maternity-hotel-birth-tourists-n315996.

 The women (who often had substantial financial assets on hand) typically paid only a fraction of their bills, which averaged around $25,000 per woman.32
Id.

 This led to large financial losses for the hospitals, including one hospital in particular that provided services for over 400 births linked to the scheme over only a two-year period.33
Id.



As with other financial costs associated with illegal immigration, birth tourism fraud disproportionately impacts a small number of states such as Florida, which since 2000 has experienced a 200 percent increase in births by foreign nationals who live outside the United States.34
Cynthia McFadden et al., supra note 28.

 The Jackson Health System of Miami—where almost one in 10 patients who gave birth in 2017 were birth tourists—recently reported that only 72 percent of international maternity patients pay for their services with insurance or through a pre-arranged package.35
Id.

 It is possible that the other 28 percent of international maternity patients pay the entire cost up-front or in later installments, but it is very likely that at least part of this remaining percentage is attributable to fraud schemes.

One of the major motivating forces behind birth tourism is the draw of foreign parents to significantly reduced costs of an American education for their child.36
See, e.g., Benefits of Giving Birth in the United States of America with Doctores Para Ti, Doctores Para Ti (last accessed July 16, 2019), https://doctoresparati.com/home.html (listing “the opportunity of a high quality education” as a main benefit of birthright citizenship, and noting that citizens “have the right to apply for federal student aid, which provides access to scholarships, grants, and other financial aid programs” to pay for college in the United States); Reasons for Going to the United States to Have Children, LaPangBaba (last accessed July 16, 2019) (translated via Google Translate), http://www.lapangbaba.com/archives/552.html (enticing individuals to their birth tourism services by explaining that children born in the United States enjoy free elementary and high school education and that citizens receive low-interest student loans while saving “tens of millions of yuan” on a college education compared to foreign students); Jennifer Pak, How Specialist Agencies Help Chinese Mothers Give Birth in the U.S., Market Place (Mar. 7, 2019), https://www.marketplace.org/2019/03/07/agencies-help-pregnant-mothers-in-china-give-birth-in-the-us/ (interviewing two Chinese birth tourism agents, both of whom report that free or significantly reduced cost access to American education systems is a primary motivating factor for their clients).

 Even though the vast majority of birth tourists return to their native country with their U.S.-born children, these children are considered U.S. citizens with equal access to public schools, in-state college tuition, low-interest student loans, and tax-exempt student loan payments. While it is unknown just how many U.S.-born, foreign-raised children take advantage of free public schools and reduced-rate college tuition every year, the number is not “zero” and appears destined to rise in tandem with the increasing numbers of foreign women giving birth to citizen children for precisely these purposes.37
It is unquestionable that demand for an American education is growing exponentially among Chinese families. The number of Chinese citizens studying in the United States has more than tripled since 2008, reaching well over 360,000 students during the 2017–2018 school year. Rupa Shenoy, The U.S. May Face Obstacles in the Global Race for Chinese Students, Public Radio International (Feb. 5, 2019), https://www.pri.org/stories/2019-02-05/us-may-face-obstacles-global-race-chinese-students. Tens of thousands of Chinese teenagers also attend U.S. secondary schools every year, though most who are here for the purpose of graduating with a United States diploma are relegated to private schools, as F-1 visas limit public school access to one-year exchange programs. But for non-citizens, these exchange programs cost money, and public schools can actually subsidize the costs per citizen-student through fees associated with foreign nationals. See Brook Larmer, The Parachute Generation, N.Y. Times (Feb. 2, 2017), https://www.nytimes.com/2017/02/02/magazine/the-parachute-generation.html. There is no reason to believe that, given the extraordinary lengths foreign nationals already go to in order to secure an education in the U.S., those born with the additional benefits of U.S. citizenship will not largely take advantage of a free education. See, e.g., Molly Hensley-Clancy, More Chinese Students Are Coming to U.S. High Schools to Get Into American Colleges, Buzzfeed News (Aug. 10, 2017), https://www.buzzfeednews.com/article/mollyhensleyclancy/lots-more-chinese-students-are-coming-to-the-us-for-high.



The financial consequences of this are not insubstantial, either. In Florida and California—two states at the center of the birth tourism industry—taxpayers shell out roughly $9,000 and $10,500, respectively, per public school student, per year.38
Public Education Costs per Pupil by State Rankings, Room 241 (updated Apr. 6, 2018), https://education.cu-portland.edu/blog/classroom-resources/public-education-costs-per-pupil-by-state-rankings/.

 If even 1 percent of the estimated 60,000 U.S.-born children of birth tourists took advantage of a four-year high school education in the United States, taxpayers would be on the hook for approximately $24 million—without any recuperation in costs by parents or relatives paying taxes into the system.

Meanwhile, the difference in the cost of a college education for a student who qualifies as “in-state” as opposed to the cost for a strictly foreign-based student is staggering. A recent Forbes article, for example, points out that the difference in tuition at Arizona State University for the 2016–2017 academic year was over $18,000.39
See Andy Semotiuk, How International Students Can Fund Their Education in America, Forbes (May 10, 2018), https://www.forbes.com/sites/andyjsemotiuk/2018/05/10/foreign-students-and-the-pursuit-of-their-dreams-in-america/#9a9fb074f652.

 Again, if even 1 percent of U.S.-born children of birth tourists take advantage of these lower rates at public universities without having ever paid into the tax system—the whole justification for lower “in-state” tuition—the cost to U.S. taxpayers will be in the tens of millions of dollars. That cost also comes without the promise that the student will remain in the United States after receiving such dramatically reduced education costs.40
This is increasingly the case amongst Chinese nationals who study abroad, with as many as nine in 10 returning to China after graduation to seek work—up from just two in 10 at the turn of the 21st century. See Youyou Zhou, Chinese Students Increasingly Return Home After Studying Abroad, Quartz (July 29, 2018), https://qz.com/1342525/chinese-students-increasingly-return-home-after-studying-abroad/; see also Luke Kelly, How China Is Winning Back More Graduates from Foreign Universities Than Ever Before, Forbes (Jan. 25, 2018), https://www.forbes.com/sites/ljkelly/2018/01/25/how-china-is-winning-back-more-graduates-from-foreign-universities-than-ever-before/#45d5170b5c1e. This trend will likely continue for the foreseeable future, as China’s improved domestic job market remains relatively stable, and certain booming industries—like the technology sector—offer increasingly competitive and desirable careers to Chinese graduates. See Michelle Toh, How to Land a Job in China’s Booming Tech Sector, CNN (July 25, 2017), https://money.cnn.com/2017/07/25/technology/china-tech-employers-jobs/index.html; Alec Ash, How China’s Tech Revolution Threatens Silicon Valley, The Atlantic (May 14, 2018), https://www.theatlantic.com/business/archive/2018/05/chinas-silicon-valley/559871/.



Chain Migration. Chain migration—the phenomenon of immigrants residing in the U.S. sponsoring the immigration of family members, who can then sponsor the immigration of other family members in an essentially perpetual “chain” of sponsorship—is the biggest source of legal immigration in the United States.41
“Family-sponsored immigrants” accounted for almost two-thirds of all lawful immigrant admissions in 2017, with over 748,000 admissions, compared to only 137,855 employment-based admissions; 120,256 refugee-status admissions; and 51,592 “diversity visa” admissions. See Jens Manuel Krogstad & Ana Gonzales-Barrera, Key Facts About U.S. Immigration Policies and Proposed Changes, Pew Research (May 17, 2019), https://www.pewresearch.org/fact-tank/2019/05/17/key-facts-about-u-s-immigration-policies-and-proposed-changes/.



This means that our national policy of who may and may not permanently enter the United States is based largely on the desires of a select group of naturalized citizens, without taking into account the needs or desires of the country writ large. Chain migration also contributes to the aging of the immigration stream, as 24 percent more “family migrants” today are over the age of 50, compared to family migrants in the early 1980s.42
Jessica Vaughan, Immigration Multipliers: Trends in Immigration, Ctr. for Immigr. Studies (Sept. 2017).

 Research into the precise fiscal impacts of chain migration is scarce, but at least one recent report concluded: “[A]t a minimum it is fair to say that…new realities…demand a review of whether a growing inflow of older immigrants is either sustainable or helpful to our country.”43
Id. at 6.



Universal birthright citizenship compounds this problem by creating hundreds of thousands of new citizens with significant ties to other countries, who can later sponsor hundreds of thousands of relatives for lawful permanent residence—including, in some circumstances, the illegal immigrant parents themselves.44
Parents who entered the United States illegally are deemed “inadmissible” for a period of three or 10 years, depending on the length of illegal presence, but those who merely overstayed their otherwise valid visas and remain unlawfully in the United States may apply for an “adjustment of status” on the basis of their citizenship child’s sponsorship.

 Under this framework, those who successfully manage to break U.S. laws and cheat the immigration system stand to benefit substantially from their illegal actions.

C. Universal Birthright Citizenship Raises Serious National Security Concerns.
The United States must seriously consider how its current birthright citizenship policy risks exploitation by hostile nations. This is particularly true in light of the rapidly increasing number of foreign nationals giving birth on U.S. soil without any intention or legal ability to remain domiciled in the country or otherwise have their presumptively U.S.-citizen children retain meaningful ties with the American people.

There is little dispute that countries like China and Russia routinely attempt to undermine U.S. elections, influence public opinion, and engage in acts of political or economic espionage against the United States.45
While the Mueller Report did not find any evidence that President Trump colluded with Russia to “steal” the 2016 election, it is clear that the Russian government made concerted efforts to undermine the integrity of the election and generally sow disruptive divisions within the American populace. See Mueller Report at I(A)(2), https://assets.documentcloud.org/documents/5955997/Muellerreport.pdf. Moreover, similar and equally concerning disinformation campaigns have been noted prior to the 2016 election and in other countries. See Minority Staff Report of the Senate Committee on Foreign Relations, Putin’s Asymmetric Assault on Democracy in Russia and Europe: Implications for U.S. National Security, S. Prt. 115-21 (Jan. 10, 2018), https://www.foreign.senate.gov/imo/media/doc/FinalRR.pdf. Consider also that the Chinese government has gone so far as attempting to indoctrinate United States kindergarteners with pro-Communist propaganda, providing over $158 million in funding for more than 100 U.S.-based “Confucius Institutes.” These institutes—essentially run by the Chinese government—attempt to change U.S. perceptions on China, particularly with regard to the country’s status as an economic and national security threat. Institute directors and teachers sign contracts with the Chinese government to “conscientiously safeguard national interests” and report regularly to the Chinese embassies in the United States. A recent report by the Senate Permanent Subcommittee on Investigations highlighted numerous concerns that these institutes are part of a broader plan by China to undermine the integrity of American academic research and educational institutions. See Permanent Subcommittee on Investigations, China’s Impact on the U.S. Education System, Staff Report (2019), https://www.hsgac.senate.gov/imo/media/doc/PSI%20Report%20China’s%20Impact%20on%20the%20US%20Education%20System.pdf.

 China, in particular, targets and uses Chinese-born naturalized U.S. citizens who gained access to sensitive—and sometimes highly classified—information.46
In 2016, for example, Kun Shan Chun—a naturalized U.S. citizen from China—pled guilty acting as an agent of the Chinese government. Chun worked for almost two decades as an FBI electronics technician, held top secret security clearance, and maintained access to sensitive and classified information. The Chinese government recruited him to use his position to collect and transmit to Chinese officials sensitive information regarding the FBI’s internal structure and use of surveillance technologies. Press Release, Department of Justice, FBI Employee Pleads Guilty in Manhattan Federal Court to Acting in the United States as an Agent of the Chinese Government (Aug. 1, 2016), https://www.justice.gov/usao-sdny/pr/fbi-employee-pleads-guilty-manhattan-federal-court-acting-united-states-agent-chinese. Similarly, in 2018, former CIA officer Jerry Chun Shing Lee, a naturalized U.S. citizen from China, was arrested and charged with espionage for agreeing to give China highly classified information related to the Agency’s covert operations in China. See Pete Williams, Ex-CIA Officer Jerry Chun Shing Lee Charged With Conspiring to Spy for China, NBC News (May 9, 2018), https://www.nbcnews.com/news/china/ex-cia-officer-jerry-chun-shing-lee-charged-conspiring-spy-n872721. Lee’s actions are suspected of playing a significant, perhaps even primary, role in the agency’s devastating loss of more than a dozen assets between 2010 and 2012. Julian E. Barnes, Ex-CIA Officer Suspected of Conspiring With China Is Expected to Plead Guilty, N.Y. Times (Apr. 30, 2019), https://www.nytimes.com/2019/04/30/us/politics/jerry-lee-cia-guilty-plea.html. See also Mark Magnier, US Federal Court Finds Chinese-American Engineer Shih Yi-chi Guilty of Exporting Military-Grade Semiconductors, South China Morning Post (July 2, 2019), https://sg.news.yahoo.com/us-federal-court-finds-chinese-232927728.html (reporting on the conviction of Shih Yi-chi, a naturalized American citizen of Chinese descent and former UCLA professor of engineering, for illegally accessing and exporting to his former Chinese company American technology used in missile guidance systems, fighter jets, electronic warfare, and radar systems).

 This is even more concerning in light of evidence uncovered in recent indictments regarding birthright citizenship that indicates that birth tourism companies cater to mid-level Chinese government officials and advertise “priority access to U.S. government jobs” as a major benefit of U.S. citizenship for their children.47
See Reasons for Going to the United States to Have Children, supra note 36 (boasting that U.S.-born children “can be given priority to the U.S. government [jobs]…. Many key positions, such as official military affairs, defense diplomacy, high-tech and core laboratories, are strictly limited to citizens.”). Naturalized Americans with ties to China have also been involved in numerous acts of economic espionage, such as the stealing of trade secrets. See Lee Jeong-ho, Chinese-American Engineer Charged With Stealing US $120 Million Worth of Trade Secrets, South China Morning Post (Feb. 15, 2019), https://www.scmp.com/news/china/diplomacy/article/2186330/chinese-american-engineer-charged-stealing-us120-million-worth; Ellen Nakashima, U.S. Charges American Engineer, Chinese Businessman With Stealing GE’s Trade Secrets, Wash. Post (April 24, 2019), https://www.washingtonpost.com/world/national-security/us-charges-american-engineer-chinese-businessman-with-stealing-ges-trade-secrets/2019/04/23/cb32c78a-65f5-11e9-82ba-fcfeff232e8f_story.html?utm_term=.74e0bf17cb38; Former Sandia Scientist Gets 1 Year in Prison, Albuquerque Journal (Nov. 24, 2014), https://www.abqjournal.com/501170/former-sandia-get-1-year-in-prison.html (reporting on Jianya Huang, a naturalized U.S. citizen from China who pled guilty to lesser charges of taking his U.S. government-owned laptop to China after being suspected of stealing data on behalf of the Chinese government).

 Moreover, the growing number of Chinese-raised U.S. citizens who will soon enjoy unfettered access to the U.S. university system could present serious national security problems given recent Chinese attempts to use naturalized U.S. citizen college students of Chinese descent to conduct acts of espionage.48
See Zachary Cohen & Alex Marquardt, U.S. Intelligence Warns China Is Using Student Spies to Steal Secrets, CNN (updated Feb. 1, 2019), https://www.cnn.com/2019/02/01/politics/us-intelligence-chinese-student-espionage/index.html; U.S. Department of Justice, Higher Education and National Security: The Targeting of Sensitive, Proprietary and Classified Information on Campuses of Higher Education (Apr. 2011), https://www.fbi.gov/file-repository/higher-education-national-security.pdf/view.



As the United States has sought to increase restrictions on the 350,000 or so Chinese nationals admitted to U.S. universities every year, it is hardly surprising that China would seek to exploit the nation’s birthright citizenship policies to accomplish the same espionage goals.49
For example, in June 2019, the State Department rolled back a previous policy that allowed all Chinese citizens to secure five-year student visas, instead restricting Chinese graduate students in certain “sensitive” research fields to one-year renewable student visas. Alexandra Yoon-Hendricks, Visa Restrictions for Chinese Students Alarm Academia, N.Y. Times (July 25, 2019), https://www.nytimes.com/2018/07/25/us/politics/visa-restrictions-chinese-students.html. This move came after reports that the Trump Administration recently considered putting a stop to all student visas for Chinese nationals, and lawmakers introduced bills that would prohibit the federal government from issuing student or research visas to anyone employed or sponsored by the Chinese military. See Emily Feng, Visas Are the Newest Weapon in U.S.–China Rivalry, NPR (Apr. 25, 2019), https://www.npr.org/2019/04/25/716032871/visas-are-the-newest-weapon-in-u-s-china-rivalry; Michael Burke, Trump Considered Halting Student Visas for Chinese Nationals: Report, The Hill (Oct. 2, 2018), https://thehill.com/homenews/administration/409436-trump-considered-halting-student-visas-for-chinese-nationals-report; U.S. Lawmakers Want to Tighten Visas for Chinese Students and Researchers, Reuters (May 14, 2019), https://www.cnbc.com/2019/05/15/us-lawmakers-want-to-tighten-visas-for-chinese-students-researchers.html.

 Certainly, this scheme is even riper for abuse when we treat as citizens individuals who have no meaningful connection to the United States and who are raised in China as Chinese nationals, allowing them to freely return to the United States at any point to vote, enlist in the military, or work for the United States government.

Bestowing citizenship on large numbers of individuals so strongly susceptible to divided loyalties—or even complete disloyalty—is dangerous. Even at current rates of birth tourism growth, within two decades there will likely be over 1 million Chinese-raised U.S. citizens with the right to vote in U.S. elections, serve in the U.S. military, hold public office, and work for the government. Certainly, many of the birth tourist children who return to live in the United States may ultimately do so in good faith and for the same reasons millions of immigrants continue to flock to the world’s beacon of liberty: to fully invest in and become part of a free, prosperous, and democratic society. But if Russia quite successfully created fictitious U.S. citizens and mimicked Americans on social media, how much damage could the Kremlin do with even a few hundred “bona fide” American citizens who spent their formative years being instilled with Russian patriotism and forming intense relationships with the Russian people?50
See, e.g., Scott Shane, The Fake Americans Russia Created to Influence the Election, N.Y. Times (Sept. 7, 2017) (detailing Russian efforts to create fake social media accounts that purported to be U.S. citizens supporting genuine U.S. interests). The Mueller investigation, while again finding no collusion between the Trump Administration and Russia, did result in 16 indictments against Russian individuals and organizations for their part in social media disinformation campaigns. These indictments lay out facts about Russian attempts to pose as citizens and create fake U.S. personas, in particular via the notorious “troll farm” known as the Internet Research Agency. See Indictment, United States v. Netyksho et al., Case No. 1:18-cr-00215-ABJ (D.D.C. July 13, 2018), https://www.justice.gov/file/1080281/download.

 Similarly, if China has seen success in recruiting and using naturalized U.S. citizens or Chinese nationals, how much more dangerous would its operations be with access to hundreds of thousands of individuals who, for all intents and purposes, view themselves as loyal Chinese citizens?

This is not to suggest that all dual nationals, naturalized citizens, or U.S. citizens who spent significant parts of their childhood living abroad are ipso facto of suspect or divided loyalty. It is certainly not to suggest that the United States repeat the egregious and unconstitutional errors of World War II and categorically view with suspicion U.S. citizens of a particular ethnic background or whose families immigrated to the United States from a particular country.51
The Ringle Report, long hidden from the public and from the courts because of its likelihood to seriously undermine the Roosevelt Administration’s arguments in favor of internment, determined that the “large majority [of even Japanese-born alien residents] are at least passively loyal to the United States.” While there were both Japanese resident aliens and U.S. citizens of Japanese dissent who were “either deliberately placed by the Japanese government or actuated by a fanatical loyalty to that country” and posed serious risks of sabotage or espionage, their numbers were estimated to be only “about 300 in the entire United States.” Moreover, most of these individuals were either already in U.S. custody or were well-known to U.S. intelligence services and would be “immediately placed in custodial detention” once apprehended. Ringel Report on Japanese Internment, Serial No. 01742316 (Dec. 30, 1941), https://www.history.navy.mil/research/library/online-reading-room/title-list-alphabetically/r/ringle-report-on-japanese-internment.html.

 It is simply to point out that the nation’s current policy of universally granting birthright citizenship to individuals who lack any meaningful ties to the United States provides substantial opportunities for abuse by motivated enemies.52
Of note, the Ringle Report explicitly indicated that the “most potentially dangerous element” were “those American citizens of Japanese ancestry who have spent the formative years of their lives, from 10 to 20, in Japan and have returned to the United States to claim their legal American citizenship within the last few years.” Id. at Section I(f). Echoing the very real and growing problems inherent with universal birthright citizenship, the report continued: “These people are essentially and inherently Japanese and may have been deliberately sent back to the United States by the Japanese government to act as agents. In spite of their legal citizenship and the protection afforded to them by the Bill of Rights, they should be looked upon as enemy aliens and many of them placed in custodial detention.” Id. This inherently suspect allegiance was considered incredibly problematic at the time, even given the much smaller numbers of such citizens: The sheer scale of the problem today as compared to the “600 or 700” individuals in the Los Angeles area during WWII should give the nation even greater cause for concern. Also worth noting is the Ringle Report’s emphasis on avoiding turning anti-espionage efforts into race-based pogroms. The problem was not the individual’s race, and the report rightly indicates that the “Japanese problem” was no different than the problem faced by “dangerous German, Italian, or other subversive sympathizers and agitators who are deemed dangerous to the internal security of the United States.” Id. at Section I(h); Section III. In the end, the report’s focus—similar to this memo’s focus—is on the inherent national security risks that come with treating as citizens individuals who grow up meaningfully subject to a foreign power.



Again, the problem is not just that these U.S. citizen children retain dual nationality or have parents who are citizens of a particular nation. The problem is that they are largely raised subject to the complete jurisdiction and control of another sovereign power and are completely integrated as part of the people of a foreign nation without any significant ties to the United States. It is very difficult to understand how these individuals, having failed to spend any amount of their lives becoming part of the American community, could view themselves as “American” in any meaningful way. After all, we would not expect a child raised in the United States as a United States citizen to view himself or herself as fundamentally anything but an American, and the same reasoning would appear applicable to any child raised in any other foreign country as a citizen of that country. Despite this reality, the United States government currently recognizes these individuals as citizens and imbues them with the full array of corresponding rights and privileges.

Whereas naturalized citizens are required to embed themselves in American society via permanent domicile in the United States and swear an oath of allegiance renouncing all “fidelity to any foreign…state or sovereignty,” these children of birth tourists are permitted to spend years—sometimes decades—under an allegiance to foreign powers before ever again setting foot on U.S. soil.53
This was not always the case. Long-standing policy was that U.S.-born children whose parents repatriated or naturalized abroad must, upon reaching the age of 18, file their intent to remain United States citizens, swear an oath of allegiance, and take up permanent residence within the country.



Moreover, the Supreme Court over the past 60 years has made it almost impossible in practice for a person to be stripped of his or her U.S. citizenship through even the most overt acts of allegiance to a foreign sovereign.54
A U.S. citizen may even run for and be elected to public office in a foreign country—even serve as the head of a foreign state, swearing an oath of allegiance to support and defend that state—so long as the U.S. citizen ran voluntarily and with the intention of relinquishing U.S. citizenship. Moreover, the State Department’s policy in most cases is to presume that U.S. nationals intend to retain their U.S. citizenship, even after swearing allegiance to foreign powers. Advice About Possible Loss of U.S. Nationality and Seeking Public Office in a Foreign State, U.S. Dept. of State (last updated Mar. 12, 2019), https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/Advice-about-Possible-Loss-of-US-Nationality-Dual-Nationality/Loss-US-Nationality-Foreign-State.html. A U.S. citizen may not have his or her citizenship revoked even when voluntarily serving in the armed forces of another country, as long as that country is not engaged in hostilities against the United States. Id. This applies even to those serving voluntarily as commissioned officers, as long as the person did not intend the military service to be an act of relinquishing his or her U.S. citizenship—and, as with service in a foreign government, intent to relinquish citizenship is not presumed for those serving in foreign militaries not engaged in hostilities with the United States. Advice About Possible Loss of U.S. Nationality and Foreign Military Service, U.S. Dept. of State (last accessed July 26, 2019), https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/Advice-about-Possible-Loss-of-US-Nationality-Dual-Nationality/Loss-US-Nationality-and-Foreign-Military-Service.html.

 The individual in question must not only commit “an expatriating act,” but must also be proved to have intended to relinquish U.S. citizenship by committing that act. Because the practical ability to strip citizenship from those who willingly subject themselves to the complete jurisdiction of foreign powers is now almost nonexistent, it is vital that U.S. birthright citizenship policy not encourage the creation of such situations in the first place.

A final consideration for national security concerns related to universal birthright citizenship is the growth of international terrorist organizations and the ways in which such organizations may similarly exploit the policy for purposes of long-term terrorism plans. Consider the case of Yaser Esam Hamdi, who was born in Baton Rouge, Louisiana, to Saudi Arabian nationals living temporarily in the United States as the result of a work visa issued to Hamdi’s father.55
See Matthew Dolan, American-Born Taliban Fighter Jailed in Norfolk, Virginia Pilot (Apr. 6, 2002), https://web.archive.org/web/20020803144425/http://www.pilotonline.com/military/ml0406tal.html.

 The family returned to Saudi Arabia when Hamdi was a toddler, and Hamdi did not return to the United States for the next 20 years. As the child of Saudi Arabian citizens, Hamdi was himself a Saudi Arabian citizen. He maintained no ties with the United States. As an adult, Hamdi traveled to Afghanistan, joined the Taliban, and took up arms against the Kurdish Northern Alliance—ultimately fighting against U.S. forces after the 2001 invasion.

In late 2001, Hamdi—armed with an AK-47—surrendered to Northern Alliance forces during a battle near Konduz.56
Although Hamdi’s father disputed allegations that Hamdi went to Afghanistan as a militant fighter against the United States, military records indicate that Hamdi confirmed his status as an enemy combatant. Brief for the Respondents at 4, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696).

 He was transferred to a military prison and interrogated by a U.S. counter-terrorism team, which determined Hamdi was an enemy combatant. He was then transferred to the U.S. Naval base in Guantanamo Bay, Cuba. However, U.S. officials learned that Hamdi was born in Louisiana and raised the issue that this made him a U.S. citizen, so he was transferred to a military detention center in Norfolk, Virginia. Hamdi had no tie to the U.S. except the accident of his birth and, according to his attorney, “always thought of himself as a Saudi citizen.”57
See Eric Lichtblau, U.S., Bowing to Court, to Free ‘Enemy Combatant,’ N.Y. Times (Sept. 23, 2004), https://www.nytimes.com/2004/09/23/politics/us-bowing-to-court-to-free-enemy-combatant.html.

 Yet despite having taken up arms with Taliban forces against the United States and its allies, Hamdi was treated in court as a United States citizen, entitled to all of the due-process protections of the Constitution. This, certainly, was not the intention of the Framers and ratifiers of the Fourteenth Amendment, writing on the heels of a bloody Civil War to save the Union. More importantly, the Hamdi case underscores the possibility of disastrous consequences that can develop as the result of an unnecessarily broad birthright citizenship policy.

Citizen status can also be used to bypass the Student and Exchange Visitor Information System, which helps ensure that “those who seek to harm our nation are excluded from entering” on student visas, and “provides a mechanism for student and exchange visitor status violators to be identified so that appropriate enforcement action is taken.”58
U.S. Immigration and Customs Enforcement, National Security Investigations Division: Student and Exchange Visitor Program (last updated July 3, 2019), https://www.ice.gov/national-security-investigations-division.

 This is particularly concerning given recent incidents of foreign nationals arriving in the United States on student visas, only to use their United States residency as a cover for terrorist plots.59
Consider the case of Khalid Aldawsari, a Saudi Arabian citizen who entered the United States in 2008 on a student visa in order to use his educational pursuits as a cover to research and carry out potential terror attacks against U.S. targets. According to the criminal Complaint, SEVIS information was used to help monitor Aldawsari once he was flagged as a suspected terrorist—a use thoroughly consistent with SEVIS’s purpose of maintaining records of nonimmigrants, such as changes in address, study programs, or program sponsors. See Criminal Complaint, United States v. Aldawsari, No. 5:11-MJ-017 (N.D. Texas, Feb. 23, 2011), http://www.washingtonpost.com/wp-srv/world/documents/khalid-aldawsari-complaint-affidavit.html; Press Release, Dept. of Justice, Saudi Student Sentenced to Life in Prison for Attempted Use of Weapon of Mass Destruction (Nov. 13, 2012), https://www.justice.gov/opa/pr/saudi-student-sentenced-life-prison-attempted-use-weapon-mass-destruction.



II. What the Chief Executive Can—and Cannot—Do Regarding Birthright Citizenship Policy
Article I of the U.S. Constitution vests significant powers in Congress regarding immigration and foreign affairs, including the power to establish a uniform rule of naturalization, to regulate foreign commerce, to prohibit the migration and importation of persons, and to make all laws necessary and proper for carrying out those powers. The Constitution does not expressly vest the President with powers regarding immigration—but the Supreme Court has long held that Congress may delegate policymaking powers to the executive branch through statutes that provide an intelligible principle to sufficiently guide the exercise of discretion.60
See, e.g., Gundy v. United States (2019) (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989) (“[W]e have held, time and again, that a statutory delegation is constitutional as long as Congress ‘lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.’”).

 Congressional delegation of policymaking power gives the executive branch significant authority in the realm of immigration, particularly because of the Supreme Court’s adoption of the so-called plenary power doctrine.

Under this doctrine, the federal courts will generally decline to review immigration policies even when they facially classify individuals based on nationality, race, gender, or other protected statuses.61
See generally, David A. Martin, Why Immigration’s Plenary Power Doctrine Endures, 65 Okla. L. Rev. 29 (2015).

 It is not at all clear, however, that the Court would apply the plenary doctrine to questions regarding congressional or executive branch interpretations of the Citizenship Clause, as citizenship by birth is not a matter of immigration or naturalization policy, but of constitutional right. Given that the plenary power doctrine was developed and strengthened during the same period in which the Court nevertheless delved deeply into the parameters of birthright citizenship in United States v. Wong Kim Ark, it should be presumed that the modern Court—which has worked to limit and even erode the doctrine—will likely address the question on the merits should an appropriate case come before it.62
The plenary power doctrine is often considered to have been first articulated just nine years before Wong Kim Ark in the 1889 case of Chae Chan Ping v. United States 130 U.S. 581 (1889). There, the Supreme Court both affirmed the inherent power of the federal government to regulate immigration and reasoned tha

https://decrypt-dispatch.beehiiv.com/p/of-meme-coins-and-choke-points

https://simplicius76.substack.com/p/trump-raises-heat-on-russia-with?publication_id=1351274&post_id=155497880&isFreemail=false&r=379fkp&triedRedirect=true

https://www.theguardian.com/us-news/2025/jan/25/health-insurers-ai

second:

From a forum I frequent:
================================== 
Sen. Mike Lee (R-UT) and other Republican legal scholars argue that “and subject to the jurisdiction thereof,” should exclude the children from illegal aliens from the protections.

This could be accomplished simply by applying Section 5 of the 14th Amendment. Section 5 states that: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Hence, by a simple majority, Congress can clarify the Section 1 clause of the 14th Amendment.

In the meantime, we can expect that President Trump’s executive order will rely on legal scholars to distill what the 1868 Congress meant when they passed the 14th Amendment.

This will then be followed by Congressional action to clarify further and enforce the full provisions of section 1 of the 14th Amendment.

Of course, it will be challenged in the court of law, with the Supreme Court making the final determination.

The final result will most likely be a scaling back of the 14th Amendment to its original intent. It won’t happen as quickly as one might hope, but it will happen. This will alter the fabric of the United States for future generations and is critically important to maintaining the fabric and nature of American society.

Legal immigration will not stop, nor does anyone want it to. But the United States can not allow unfettered and illegal immigration. The vast majority of Americans agree on this point.

These controls start with both the closing of the border and the loophole developed by the Supreme Court ruling of 1898, which is known as “United States v. Wong Kim Ark”. President Trump is right - birthright citizenship will end because the legal precedent used to maintain this status quo is defunct. It is just a matter of time and will. President Trump has the will and four more years - so let’s get it done!

The Civil Rights Act of 1866 tried to codify existing US common law for birthright citizenship. Prior to it, there was no nationwide law saying that American Indians, for example, were US citizens, even if they were born in US territory. Nor, obviously, was there any such nationwide law doing the same for African-Americans, who were treated as non-citizens in the slave states.

The primary purpose of the 1866 Civil Rights Act and the 14th Amendment was to change this for African-Americans by making them full US citizens. Lower court opinions from non-slave states prior to that are not terribly relevant, as they had no nationwide application. Lincoln's AG's opinion is somewhat informative, but either agreed with the 1866 Civil Rights Act, which was fully debated and passed by Congress, and the 14th Amendment, which was ratified by the states, or it was implicitly repealed by them. In no way is it a valid legal argument. Everyone agreed that the 14th Amendment didn't make American Indians US citizens, even if they were born in US territory.

Furthermore, the US acquired several other territories between the Civil War and WWI: Alaska, Hawaii, Puerto Rico, the Philippines, Guam, etc. None of the people in those territories became US citizens simply by being born there after they became US territory. They were either made US citizens by statute (as were American Indians after WWI), or they were never made US citizens at all (Filipinos were made US "nationals" but not US citizens). That clearly indicates that the common understanding of the 14th Amendment was not that anyone born into US territory was automatically thus a US citizen, because that all happened within living memory of the 14th's ratification. Even to this day, the people of American Samoa are only US "nationals," not US citizens, despite American Samoa being US territory.

===========

Upon my request, he promises citations.

Absolutely.

If I have it right, we have suspended aid to Ukraine.  If this is so, it seems counterproductive to pressuring Russia to say the least!

https://x.com/i/web/status/1882565351378149749

https://www.msn.com/en-us/news/world/the-us-air-force-has-an-almost-uncomplicated-plan-to-erase-china-s-taiwan-invasion-fleet/ar-AA1xNkn5?ocid=msedgntp&pc=DCTS&cvid=86d917f13b584a88b0d23f63d0e79363&ei=34

Of more interest to me is wht YOU think of my analysis   

My understanding is that the Obama number is lie created by adding those turned back at the border into the mix.

HT BBG

https://smallwarsjournal.com/2025/01/22/the-challenge-of-ai-enhanced-cognitive-warfare-a-call-to-arms-for-a-cognitive-defense/

Disgree with the logic.

Witness:

https://en.wikipedia.org/wiki/Indian_Citizenship_Act

Clearly the Amendment intends that the meaning of "and subject to the jurisdiction thereof" is to be defined statutorily.

The rest is noise.

THIS.

I get the frustration but settlements often/usually have an NDA.

https://www.msn.com/en-us/news/world/goodbye-panama-canal-its-neighbor-plans-to-rival-it-with-an-18-billion-dry-canal/ar-AA1xFsxU?ocid=msedgntp&pc=DCTS&cvid=d65ad80250494bdca0018c666a2b1c45&ei=13

https://twitter.com/i/web/status/1881855889310974316

HT BBG-- and with Trump's J6 pardons it may be time to open this thread.

Looks like ALL those executive orders (hey, and pardons too?) were machine signed, which this source claims black letter law says renders them void. My guess is that in his decrepit state and given the time pressure to sneak all these in under the wire, whoever opted to auto-sign ‘em, perhaps ‘cause Joe can only handle crayons these days but may eat ‘em, wasn’t a deep thinker where federal law is concerned:

https://x.com/peterboghossian/status/1881458574968472027

We've discussed this before, but with President Trump's EO yesterday I am thinking it is time to give it its own thread.
ND
Here is my current thinking:

The President is right.   Period.

The key point IMHO is this:   Note the word "AND".   As a matter of statutory construction, this means TWO requirements must be met:   Birth here AND subject to the jurisdiction.   Those who would have birth here be the  sole criterion violate the rule of statutory construction that language not be read to be meaningless.

So, the question presented becomes, "How can someone be here yet not subject to our jurisdiction?

I will give one example (there are more but I am busy in San Fran getting ready for three days of training the police here) -- the Apaches and the Commanches most certainly were born here and neither they nor we regarded them as subject to our jurisdiction!   I submit that my point here is affirmed by the passage of a STATUTE (in the 1920s?) declaring them to be citizens by birthright.   

There are other examples, but my proposition is that the Amendment envisioned the meaning of "subject to the jurisdiction thereof" to be fleshed out by statute cf the C. granting Congress the power to determine the jurisdictions of federal courts (a point I will need to research further)

No problem with posting this piece about this serious problem here.   The Bureaucracy thread would also be OK.

He is a combo of Lurch and an Ork.  His attire suits him.

https://x.com/i/web/status/1881195545550553399

That much .50BMG ammo can fuck up a lot of shit.

Think power transformers and other infrastructure.

https://townhall.com/tipsheet/mattvespa/2025/01/19/reports-vivek-ramaswamy-has-been-voted-off-the-doge-island-n2650779