The Birthright Covenant

The Supreme Court on Friday agreed to hear the Trump administration’s emergency appeal of lower-court rulings that blocked President Trump’s January 20 executive order on birthright citizenship.

For the past eleven months, media outlets have pounded us with the idea that the dispute is settled law and that the very notion of a dispute is preposterous. One senior federal district judge in Seattle, John C. Coughenour, now 84 years old and appointed to the bench by President Reagan, called President Trump’s order blatantly unconstitutional. “I’ve been on the bench for over four decades,” he said. “I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.”

We respectfully disagree with Judge Coughenour. If it were blatantly unconstitutional, the Supreme Court would not have agreed to hear the case. We hope the justices will consider our July 26 editorial, “Rewrite Birthright to Right the Ship,” in which we argued forcefully that it is time to right the ship and stop granting unconditional birthright citizenship.

In September, John Sauer, the Solicitor General of the United States, filed a 156-page petition with the Supreme Court urging it to take up the case, which the lower courts had repeatedly blocked by ruling against the Trump EO.

We summarize Sauer's key constitutional points in the petition, most of which will come up in the oral arguments scheduled for the coming months.

1. Issued by President Trump on January 20, 2025, Executive Order No. 14,160, titled "Protecting the Meaning and Value of American Citizenship," reinterprets the Fourteenth Amendment's Citizenship Clause to deny birthright citizenship to children of illegal aliens and temporary visitors to the United States.
2. The order identifies two categories of children who will not be recognized as U.S. citizens at birth: (1) children whose mothers were unlawfully present in the United States and whose fathers were not U.S. citizens or lawful permanent residents; and (2) children whose mothers were lawfully but temporarily present (such as on tourist, student, or work visas) and whose fathers were not U.S. citizens or lawful permanent residents.
3. Four district courts—in Washington, New Hampshire, Maryland, and Massachusetts—issued preliminary injunctions blocking enforcement of the executive order. The Supreme Court partially stayed three of these injunctions in Trump v. CASA, Inc., ruling that universal injunctions exceeded federal courts' equitable powers. However, the Court did not address the merits.
4. Section 1 of the Fourteenth Amendment states: 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. The Trump administration's primary argument centers on interpreting "subject to the jurisdiction thereof" in the Fourteenth Amendment as requiring political allegiance—essentially, domicile and permanent ties to the United States—not merely being subject to U.S. laws.
5. Senator Lyman Trumbull, sponsor of the Civil Rights Act of 1866 (which preceded the Fourteenth Amendment), explained that the Act would make citizens of persons born of parents "domiciled in the United States." During debates on the Amendment, Senator Benjamin Wade acknowledged that "a person born here of parents from abroad temporarily in this country" would not be a citizen. Representative James Wilson recognized that "children born on our soil to temporary sojourners" would not be citizens.
6. The historical record of even earlier decades is clear. Justice Story's 1834 treatise stated that birthright citizenship should not apply to "children of parents, who were in itinere in the country, or abiding there for temporary purposes." Various state courts and 19th-century legal commentators similarly excluded children of temporary visitors from birthright citizenship.
7. Secretaries of State in the 1880s denied passports to applicants born in the United States to foreign parents who were temporarily present, reasoning that birth "under circumstances implying alien subjection, establishes of itself no right of citizenship."
8. The Supreme Court's 1898 decision in United States v. Wong Kim Ark has been misread. Wong Kim Ark held that children born to alien parents with "permanent domicile and residence" in the United States are citizens. The petition emphasizes that "domicile" appears more than 20 times in the opinion and was central to the Court's reasoning.
9. The government's petition asks the Supreme Court to restore the original meaning of the Citizenship Clause, limiting birthright citizenship to children whose parents have primary allegiance to the United States through citizenship or lawful permanent residence.

As a matter of policy, Sauer says the government identifies four problems with automatic birthright citizenship.

Immigration Incentive: Automatic citizenship for children of illegal aliens creates a powerful incentive for illegal migration. Such children not only become full citizens but their citizenship is often used to impede the removal of their illegal-alien parents, allowing violators to "jump in front of those noncitizens who follow the rules and wait in line."

National Security: Some aliens enter to engage in "hostile activities, including espionage, economic espionage, and preparations for terror-related activities." Conferring citizenship on their children creates perverse policy incentives.

Birth Tourism: The current interpretation has spawned an industry of "birth tourism," where foreigners travel to the United States solely to give birth and obtain citizenship for their children. Birth tourism companies reportedly charge hefty fees to facilitate such travel, which violates U.S. visa law that prohibits tourist visas for the purpose of obtaining citizenship.

Degradation of Citizenship: Permitting illegal aliens to obtain citizenship for their children through wrongdoing "degrades that gift and dilutes its meaning." Birth tourism "demeans the privilege of U.S. citizenship" by extending it to people lacking a meaningful connection to the United States. Few developed countries retain automatic birthright citizenship; even the United Kingdom abandoned this approach in 1983.

Each point in the Sauer petition is strong, sensible, and legally supported. The question now is whether at least five justices would agree and upend the travesty that has caused so much division in our country.

America is a land of immigrants. But America is also a land that respects laws. Illegal immigration has exploded because of birthright citizenship. Any provision in our statutes that encourages unlawful behavior should be struck down.

The Supreme Court should do the right thing and uphold Trump's Executive Order.

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We’ll be back tomorrow with our look at the week’s best performing stocks and ETFs. Stay tuned.

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