“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.” 14th Amendment
The SCOTUS decision places the onus of citizenship on the person born in the USA: It must meet two criteria: (1) Birth on USA soil; (2) being subject to the jurisdiction of USA at the time of birth. The decision maintains that only two groups of persons born in the USA would have been excluded at the passing of the 14th Amendment: children of foreign nationals with diplomatic immunity and Indians (who were only made citizens in 1924). Everyone else born in the USA is a citizen because they are subject to the jurisdiction of the USA because the birth happened within the territorial control (jurisdiction) of the USA. The immigration status of the parents is irrelevant.
The anti-immigration zealots would like to strip a lot of people of their USA citizenship only because their parents did not have legal status when they were born in the USA. This would lead to extreme injustice in many cases. The zealots mischaracterize the decision, typically as follows: “SCOTUS just ruled that a foreigner can invade our country 9 months pregnant and pop out a child that is an American citizen. This might be the worst modern ruling from SCOTUS.” Others are lamenting that such people are taking advantage of the welfare state, and that may be true in part. But that is problem with the welfare state that needs to be fixed–and should not be confused with citizenship rights.
On January 20, 2025, President Trump issued Executive Order No. 14160, titled Protecting the Meaning and Value of American Citizenship. The Order provides that children born in the United States of parents who are unlawfully or temporarily present here are not “subject to the jurisdiction” of the United States—and thus do not qualify for citizenship under the Fourteenth Amendment or the Immigration and Nationality Act (INA), which uses the same language.
Given what Trump was trying to do, I think the USA dodged a bullet with this SCOTUS decision. If you thought Minneapolis was bad, and I did, then the chaos that would take place when ICE implemented Executive Order No. 14160 could have led to war. Because they were NOT aiming only at 9 month pregnant women who cross the border and have so-called “anchor babies”, they were aiming at anyone whose parents weren’t citizens when they were born in the USA.
The SCOTUS decision means this: A person whose parents immigration status was undocumented can be born in the USA, grow up there, serve in the military, be honorably discharged, start a business, employ hundreds of Americans, and that that person shouldn’t have to worry about ICE arresting, detaining and deporting him or her because of Trump’s executive order. Furthermore, how many generations back would Trump and ICE go? If my parents weren’t citizens when I was born, then is it possible that my grandchildren wouldn’t be citizens either. Like Trump, in the late 19th century, the USA government wanted to exclude some people’s children born (namely those of chinese ethnicity), but that attempt was also rightly overturned by United States v. Wong Kim Ark. So Trump’s executive order is deja vu.
The history of the USA is replete with examples of the USA denying citizenship to people who want it and have a right to it, and forcing citizenship on people who don’t want it. An example is a Canadian border baby whose only connexion to the USA was a hospital on the south side of the Canadian border where he was born. He went back to Canada, was somehow drafted by the USA during the Viet Nam period, but was already a member of the Canadian military–he had to get his draft-dodger status in the USA sorted out when he was involved in joint USA/Canada military operations–so he told me. Many people here north of the USA are dismayed because the IRS wants us to report our income and our private bank accounts. Now, they force our banks through FATCA rules to disclose this information to the IRS. I’ve not heard Trump say, “We want to free the tax slaves in Canada of their ‘birthright’ tax obligations to the IRS.” Nope. His interest and that of his supporters is to expulse some native-born citizens from the country who actually want to stay and work and pay their taxes there.
It is against the law to benefit from criminal activity. If I were to rob a bank and give the money to my children, should they be allowed to keep the money or anything they bought with it? Of course not. Same here. If the mother was in the U.S. illegally, the child can not benefit from that illegal act, be it illegally gotten financial gains nor citizenship….until now.
Reasonable people can think that the way this stands it creates an incredibly bad incentive to enter the US illegally.
“It is against the law to benefit from criminal activity.”
If that is the case, then they should start with the man at the top and quit worrying about a few innocent kids who have no choice who their parents are or where they were born.
Go after the real criminals; leave the kids alone.
from the decision Judge Roberts:
________
“In Wong Kim Ark, the Court held that the Fourteenth Amendment was “declaratory” of the “fundamental rule of citizenship by
birth” that prevailed at common law, 169 U. S., at 688, excluding only those recognized as exempt “from the jurisdiction of this country”—the “children of ambassadors” and those born in the nations of Indian tribes, id., at 675, 681–683, 693. All others were citizens at birth, whether born to permanent residents or temporary visitors. See id., at 676, 687–688. The Court wrote that the words “ ‘subject to the jurisdiction thereof’ ” “must be presumed to have been understood . . . in the same sense” as Chief Justice Marshall used them in Schooner Exchange. Wong Kim Ark, 169 U. S., at 687. Under that understanding, aliens who traveled to the United States for “business or pleasure” received no “exemption from the jurisdiction of the country.” Id., at 686. To the contrary, they were subject to that jurisdiction for as long as they remained here—and any children born to them were American citizens under the Fourteenth Amendment.”
“It is against the law to benefit from criminal activity.”
@JapanT As you can see from the quote above from Judge Roberts, the 14th Amendment is not about the parents but about the potentially natural-born citizen. The status of the parents is irrelevant — and thus the criminal activity of the parents is also irrelevant.
As someone born to an Asian family, I have to express my profound agreement with the USA vs. Wong decision. The attempt was to prevent people of Chinese ethnicity from ever becoming citizens–that is 5.5 million citizens of the USA who are of Chinese Americans. Evenutally, it would have extended to all Japanese, Philippine and Korean ancestry as well. If that had happened, well maybe I wouldn’t have had to relinquish my USA citizenship because I wouldn’t necessarily of had by virtue of my USA birthplace.