Birthright Citizenship: The Legal Debate Heats Up

Legal experts are debating the interpretation of the 14th Amendment inside and outside of courtrooms this week.

The amendment has often been interpreted to mean anyone born in the United States is automatically a U.S. citizen, and yet its interpretation may not be that simple, according to Kurt Lash, professor at the University of Richmond School of Law.  

“Often called the birthright citizenship clause, this text actually requires more than birth to become a national citizen,” Lash said during a debate on the subject sponsored by The Federalist Society on Tuesday.  

“One must also be born subject to the jurisdiction of the United States,” Lash, who is also a contributor to The Federalist Society, continued. “The meaning of that second requirement remains a subject of significant debate, in particular whether it applies to persons born to noncitizen parents illegally in the United States or to noncitizen parents only temporarily in the country.”  

Lash moderated the debate on the interpretation of the 14th Amendment just two weeks after President Donald Trump signed an executive order declaring the end of birthright citizenship to children born to illegal aliens.  

The 14th Amendment declares that “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.”  

Trump’s executive order focuses on the phrase “subject to the jurisdiction thereof” and holds that those born to parents who are not in the U.S. legally are not subject to U.S. jurisdiction and are therefore not legal citizens.  

The amendment “does not include the U.S.-born children of travelers just passing through or temporarily residing here who otherwise claimed no allegiance to the nation, to our government, because that child at the time is not subject to the jurisdiction of the United States,” Amy Swearer, a senior legal policy analyst at The Heritage Foundation, said.  

Swearer argued there is a great deal of room to debate the 14th Amendment and pointed out that legal scholars have done so for years.  

John Yoo, a professor of law at the University of California at Berkeley, disagrees with Swearer and argues that the “traditional reading” of the amendment is the “correct” one.  

The Trump administration’s recent interpretation of the amendment has triggered multiple lawsuits, including lawsuits from 22 state attorneys general and the American Civil Liberties Union. 

In January, U.S. District Judge John Coughenour temporarily blocked Trump’s executive order until Feb. 6. This week, multiple hearings are scheduled to consider the order, which, if not blocked again, will take effect on Feb. 19.  

On Thursday, Coughenour will consider whether to issue a preliminary injunction that would further prevent the Trump administration from enforcing the executive order. And on Friday, a hearing will be held to consider a lawsuit brought by 18 states challenging the order, according to ABC News.  

Meanwhile, on Monday, 18 House GOP members led by House Judiciary Committee Chairman Jim Jordan, R-Ohio, signed a 23-page friend-of-the-court brief backing Trump’s executive order to end automatic birthright citizenship for the children of illegal aliens.  

Given the significant legal implications and controversy over Trump’s order, many speculate that the case, or cases, will eventually get to the Supreme Court for the nine justices to finally clarify the meaning of the 14th Amendment.  

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