American Sovereignty in Peril: Birthright Citizenship Disaster at the Supreme Court
By Chris Russo – President, Texans for Strong Borders
On Tuesday, the United States Supreme Court dealt a devastating blow to American sovereignty by allowing the longstanding misinterpretation of the Fourteenth Amendment’s Citizenship Clause to remain in place. The Court’s decision leaves intact a legal regime under which the children of illegal aliens and temporary visa holders continue to receive automatic American citizenship simply by virtue of being born on U.S. soil.
In Trump v. Barbara, the Supreme Court thwarted efforts by the Trump administration to strip birthright citizenship from the children of illegal aliens and temporary visa holders. The margin was 6-3 on the executive order and 5-4 on the constitutional question, with Justices John Roberts, Amy Coney Barrett, and Brett Kavanaugh joining the court’s liberal wing. Kavanaugh in a partial concurrence wrote that he believed that Congress could restrict birthright citizenship through interpretation of the Fourteenth Amendment’s citizenship clause, but that President Trump’s Executive Order violated federal law.
Make no mistake: although this decision upheld the status quo, it is a disaster for the future of the American republic.
Any system that treats the child of a Chinese national arriving on a birth tour to the Northern Mariana Islands as just as American as someone whose family has called this nation home since the eighteenth century is fundamentally flawed. Citizenship is the highest privilege a nation can bestow. It should not be awarded simply because modern transportation allows foreign nationals to exploit a constitutional provision written for an entirely different purpose.
For years, conservative leaders and organizations (including Texans for Strong Borders) have argued that this modern, “magic ground” interpretation of the Citizenship Clause is both inconsistent with the original understanding ant intent of the Fourteenth Amendment and destructive to American sovereignty.
The constitutional debate turns on one phrase: “subject to the jurisdiction thereof.” Under the Court’s interpretation, those words are reduced to little more than surplusage. If virtually every person born on American soil is automatically a citizen regardless of allegiance or immigration status, then the jurisdiction requirement effectively ceases to have independent meaning.
The historical record tells a different story.
Senator Jacob Howard of Michigan, one of the principal authors of the Fourteenth Amendment, explained that the Citizenship Clause would not include “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Likewise, the Civil Rights Act of 1866 declared citizens to be those born in the United States and “not subject to any foreign power.” These provisions were written to guarantee citizenship for the children of freed slaves in the American South—not to create a universal birthright citizenship policy for every foreign national who happens to give birth within American borders.
Justice Clarence Thomas’s dissent demonstrates this point in detail. He argues that the Court’s modern doctrine relies upon historical assumptions that are far less settled than the majority suggests and that United States v. Wong Kim Ark involved parents who were permanently domiciled in the United States, making it a poor analogy for today’s questions involving illegal immigration and temporary visitors.
Indeed, Thomas argues the legal intent of birthright citizenship was for those persons who are domiciled in the United States and consider it their permanent home, without loyalty to other nations or an intent (or indeed, requirement) to return there. Under this interpretation of “subject to the jurisdiction thereof,” the Trump executive order passes constitutional muster perfectly well.
Thomas points out that the majority opinion strips the historical precedent of needed context and ignores the evidence to the contrary of their claims. He says that the majority’s claim that the American system adopted the English common law feudal conception of citizenship was based on legal precedent that was not even adopted by its own state courts by the time of the Fourteenth Amendment.
Furthermore, Thomas points out that the Wong Kim Ark decision that has led to the contemporary interpretation of the citizenship clause was based on the children of people who were indeed domiciled in the United States (the modern equivalent would be Legal Permanent Residents—green card holders).
In summation, Justice Thomas concludes:
“The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens. In doing so, the Court adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support.”
Thomas, though correct, is writing a dissent here. So, what is the path forward?
The simple answer is to immediately crack down on visa issuance and place stipulations on temporary visa holders to prevent them from exploiting the court’s overly broad construction of the Fourteenth Amendment’s citizenship clause. It makes Texans for Strong Borders’ call for an immigration moratorium and mass deportations even more necessary for the preservation of American sovereignty.
Already, we have more than a million Chinese nationals who have obtained U.S. citizenship through birth tourism set to reach age 18 within the coming decade. With today’s razor-thin margins, this cohort could easily swing a U.S. presidential election, particularly if they were positioned within key swing states.
The various states should put up whatever resistance they can to such a policy. In the normal course of business, states are the entities that issue birth certificates that serve as proof of citizenship for children born in the United States. They can and should refuse to issue birth certificates to the children of illegal aliens and temporary visa holders. There have already been bills filed in the Texas Legislature to do exactly that, and the 90th Texas Legislature should move forward with this policy at the earliest opportunity.
Going forward, the constitutional question of birthright citizenship should become a litmus test for aspiring conservative governors, attorneys general, legislators, and jurists. If they are unwilling to work to overturn the case, they should not be nominated or supported.
American sovereignty depends on the ability of the American people to decide the conditions upon which a person can become a citizen. If foreign nationals are allowed to exploit a 150-year-old clause meant for the children of freed slaves using modern transportation technology and blatant lawbreaking, that ability is fundamentally compromised.
Texans for Strong Borders supports every effort to mitigate the damage from this decision and seek its overturning within the federal judiciary. We ask every American who cares about the future of our republic to do the same.
Famously, British military historian Sir John Bagot Glubb stated that empires last for an average of 250 years. On the eve of our nation’s semiquincentennial, we must commit ourselves to ensuring that Trump v. Barbara is not the harbinger of our own decline.