“When I use a word,“ Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.“
— Lewis Carroll, “Through the Looking Glass“
When Donald Trump signed Executive Order 14160 on Jan. 20, declaring an end to birthright citizenship under the 14th Amendment for the children of undocumented aliens, constitutional scholarslaughed at him. They had also laughed in 2018, when he first threatened, but ultimately declined, to issue the decree. The idea that a president could gut a constitutional right by personal fiat seemed too crazy, too culled straight from the lunatic fringe, if not the imagination of Lewis Carroll, to actually happen.
This article originally appeared on truthdig.
No one is laughing anymore. On Dec. 5, the Supreme Court granted the administration’s request to review the order’s constitutionality, marking the second time this year the panel has agreed to examine the birthright edict. Back in June, courtesy of a 6-3 majority opinion written by Amy Coney Barrett, the court lifted three nationwide “universal” preliminary injunctions issued by three different federal district court judges that had blocked the order from taking effect anywhere in the country.
Barrett’s opinion was messy and complicated, but procedural in nature. It did not address the underlying legality of the birthright order, but instead offered a hodgepodge of textualist and originalist analysis to make it more difficult for district courts to issue nationwide injunctions. In response, immigrant-rights advocates across the country restyled their legal challenges and secured new injunctions against the birthright order, forcing Trump’s Justice Department to appeal once again to its friends on the nation’s highest tribunal.
The new case before the court, Trump v. Barbara, is a class action launched by the ACLU and other organizations on behalf of all babies born in the U.S. who are or would be denied citizenship by Trump’s order. Both sides in the litigation agree that this time the court will have no wiggle room to dodge the fundamental question of whether the birthright order violates the 14th Amendment’s Citizenship Clause, which provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
In his petition to the court, Trump’s solicitor general, D. John Sauer, argued that the clause was adopted to overturn the case of Dred Scott v. Sandford and grant citizenship to newly freed slaves and their children, but not to the children of temporary visitors or illegal aliens. In Sauer’s view, the key to unlocking both the text and original meaning of the clause turns on the five words — “subject to the jurisdiction thereof” — which he insists confirm that the clause was crafted “to extend to children who are ‘completely subject’ to the ‘political jurisdiction’ of the United States, meaning that they owe ‘direct and immediate allegiance’ to the Nation and may claim its protection.”
On Dec. 5, the Supreme Court granted the administration’s request to review the order’s constitutionality.
The children of undocumented aliens fail the test, Sauer contended, because their parents owe allegiance to their native countries. The rights and loyalties of the children, separate and apart from their parents, are entirely discounted, creating a caste-based system that binds the legal status of children to the status of their parents.
There are a great many things both notable and deeply wrong with Sauer’s argument, but a few stand out like sore jurisprudential thumbs. First, the argument is essentially a rehash of the nativist dissenting opinion in the Supreme Court’s 1898 landmark decision on birthright in the case of United States v. Wong Kim Ark,which recognized the citizenship of a man born in the U.S. to parents who at the time were subjects of the Chinese emperor but lived in California. Written by Chief Justice Melville Fuller, a staunch Gilded Age conservative and defender of laissez-faire capitalism, the dissent urged the full court to reject the doctrine of jus soli (the “law of the soil’’) — the principle that all those born within the geographic boundaries of a nation are citizens at birth — that the American republic had inherited from English common Law. Fuller’s overtures were rejected by a 6-2 majority. Sauer is making the same discredited argument in 2025. And, contrary to Trump’s oft-repeated rants, more than 30 countries continue to recognize the jus soli doctrine, including the United States, Canada and Mexico. (Great Britain modified its nationality law in 1981.)
Second, from a strictly textualist perspective, Sauer’s argument fails because there is no language in the Citizenship Clause requiring immigrants to pledge complete and undivided allegiance to the U.S. to secure citizenship for their U.S.-born children. By the plain meaning of its terms, the clause extends to children born in the country. It says nothing about their parents.
Third, Sauer’s argument comes up short on originalism in what should be a fatal blow, given the extreme lengths the current Supreme Court has gone to embrace originalism as a kind of legal theology. Today’s originalists focus on the “original public meaning” of the Constitution and its amendments, which they contend can be ascertained from the recorded debates of the framers and other sources such as widely available dictionaries. So, what was the original public meaning of the phrase “subject to the jurisdiction thereof”? The answer is no mystery. As University of San Diego Law School professor Michael Ramsey, a leading authority on the clause, has explained, when the framers of the 14th Amendment inserted the phrase into the Citizenship Clause, they chose one with a well-defined meaning,
In 19th century language, a nation’s “jurisdiction” meant its sovereign authority. The 1865 edition of Webster’s Dictionary defined jurisdiction of nations as the “power of governing or legislating,” “the power or right of exercising authority,” the “limit within which power may be exercised,” or “extent of power or authority.” The phrase “subject to the jurisdiction” of a nation meant under that nation’s sovereign authority. The 19th century idea of territorial sovereignty made everyone within sovereign territory subject to sovereign authority, except those with jurisdictional immunities such as diplomats.
Ramsey’s reading of the 14th Amendment is consistent with the debates of Congress on the amendment. While repudiating Dred Scott was the immediate impetus for the Citizenship Clause, the Senate and the House debates in 1866 extended far beyond that notorious decision.
The clause was introduced in the Senate by Jacob Howard of Michigan on May 30, 1866, as an add-on to the draft of the 14th Amendment formulated by the House. The clause tracked similar language contained in the Civil Rights Act of 1866 and followed the principles of jus soli. In his introductory remarks, Howard noted that the words “subject to the jurisdiction” of the United States meant that the Citizenship Clause would not apply to the children of ambassadors or foreign ministers, the children of occupying foreign soldiers or to the offspring of Native Americans who claimed allegiance to tribal governments, but that the clause would “include every other class of person,” regardless of race or descent. The clause, Howard said, “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”
Fourth, and most critically, Sauer’s argument, if accepted by the Supreme Court, would have devastating practical effects. Over 250,000 babies are born every year in the U.S. to parents of undocumented aliens or temporary visitors, according to the Migration Policy Institute and Penn State University’s Population Research Institute. Depriving them of citizenship will condemn them to lives of poverty and the constant threat of deportation. Some may even be rendered stateless.
There is no telling how the Supreme Court, now firmly controlled by six reactionary Republican justices, will rule. After the court gave Trump wholesale immunity from criminal prosecution last year in a case argued by Sauer, nothing can be taken off the table.