I think the huge flaws in the domicile and allegiance arguments are that they are nowhere to be found in the text of the 14th Amendment, which refers to "all persons born in the US" with nary a word about domicile, allegiance, or parentage.
It's ironic for legal conservatives to be out there arguing that the text does not mean what it plainly says.
The issue is not about the "in the US" portion of the Citizenship Provision. The controversy Decided in Trump v. Barbara is the meaning of "subject to the jurisdiction of the United States" limitation. This language was and is construed to exclude American Indians living and "born in the US" because it included the concept of "not subject to a foreign power". There is no logical way that American Indian babies born in Chicago are excluded from citizenship but Chinese Tourist Babies born in Chicago are granted citizenship, under the same language.
In The Slaughter-House Cases, 83 U.S. 36, 73 (1873), the US Supreme Court explicitly and unambiguously defined the jurisdictional limit of the Fourteenth Amendment’s Citizenship Clause, declaring:
"The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Again, in Elk v. Wilkins, 112 U. S. 94 (1884) the court confirmed "subject to its jurisdiction" = "and owing no allegiance to any alien power":
"By the Thirteenth Amendment of the Constitution, slavery was prohibited. The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, Scott v. Sandford, 19 How. 393, and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States, and of the State in which they reside. Slaughterhouse Cases, 16 Wall. 36, 83 U. S. 73; Strauder v. West Virginia, 100 U. S. 303, 100 U. S. 306."
Michael, tell us explicitly: what is that "plain meaning"; what are "its implications" that they "don't like"; and who are the "guys" that don't like them.
Suppose there is a murder, a woman is strangled death. It looks like a classic case of what we eupemistically call domestic violence.
Scenario 1: The police investigate, and the evidence strongly points to an illegal immigrant as the murderer.
What happens? The police indict him, arrest him, try him, and likely convict him. He is subject in every way to American law, i.e. he is subect to the jurisdiction thereof.
Scenario 2: The police investigate, and the evidence strongly points to the husband of a foreign country's ambassador to the US. The rest of the facts and circumstances of the murder are the same.
What happens? The ambassador's husband is protected from any potential legal charges in connection with the murder. Why? Because foreign diplomats and their retienues live under the legal fiction that they are not in the US. The foreign embassy in the US is considered foreign soil, part of the terriority of the country whose embassy it is, and even when the diplomants leave embassy ground thay are not subject to US law. (The number of parking tickets racked up in NYC by UN diplomats is truly astounding). They remain subject to the jurisdiction of their countries of origin, and not subject to the jurisdiction of the US. The same is true in reverse, US diplomats serving overseas are not subject to the jurisdiction of their host countries - they are deemed to be on US domestic soil for the entirety of their foreign postings.
But if you are not a diplomat, then when/if you travel overseas, you can be held criminally accountable for any crimes you may commit because you very much are subject to the jurisdiction of the country you reside in.
"Subject to the jurisdiction thereof" is and has always been just an acknowledgemnt of reality, until legal conservatives doing their brand of living constitutionalism decided to set their sights on undoing a 150-year settled undertsanding of the law.
At the same time, since the ratification of the Fourteenth Amendment, pursuant to the ruling in the SlaughterHouse Cases (repeated in Elk v. Wilkins, 112 U.S. 94 (1884) : "not subject to any foreign power" and "were subject only to the authority of the United States,") native Americans born in Chicago were excluded from birthright US Citizenship by the phrase "subject to the Jurisdiction of the United States". Thus, the exclusion of foreign/aliens did not depend upon the fiction of extraterritoriality associated with Diplomats of a foreign sovereign. You seem to be desparately trying to Rewrite History to deflect moral blame and retributions away from the currently-alive people who have just now subversively deprived the Political Branches of the United States of sovereign control over its jurisdiction.
The issue woth native Americans was different. At the time, their tribes were considered to have sovereignty and so they were subject tot he jurisdiction of their tribes. Nothing remotely analogous tot be arguments being made today.
And anyone who knows the history of the slaughterhouse casss should not cite them proudly, that are a stain on the union.
In the future you will see just how poorly you have chosen the Invaders Intentions over the American Citizens. Future Generations won't stand a chance because they will be crushed by the Invaders multiple times over.
After all the commentary, I still think this case is a no-brainer that should have been decided 9-0 if the justices were faithful to the law. The language of the Fourteenth Amendment could hardly be clearer: All persons born in the United States and subject to its jurisdiction are citizens. As the majority opinion states, the ordinary meaning of the latter phrase is subject to “the power of the United States to govern those within its territory,” As such, it includes everyone within our borders permanently or temporarily, legally or illegally except a very few who are immune from U.S. law while here (e.g., foreign diplomats and their families). The law imposes no additional qualifications or criteria—allegiance, domicile, subject to someone else's jurisdiction as well, whatever. I found nothing in the almost 200 pages of opinions that demonstrates that the law means something fundamentally different from what it plainly says. That should be the end of the case. If the current law doesn’t fit contemporary conditions, the remedy is to amend it not rewrite it judicially by revisionist interpretation.
"The language of the Fourteenth Amendment could hardly be clearer: All persons born in the United States and subject to its jurisdiction are citizens."
Then ... what is YOUR EXPLANATION for the text of the Slaughter House Cases that was emphatically noted by the Justice Thomas in his Dissent:
//
In The Slaughter-House Cases, 83 U.S. 36, 73 (1873), the US Supreme Court explicitly and unambiguously defined the jurisdictional limit of the Fourteenth Amendment’s Citizenship Clause, declaring:
“The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
...
Yet, in Trump v. Barbara (2026), the Respondents willfully, silently, and fraudulently concealed the existence of this on-point ruling text in the Slaughter-House Cases from their 26-pages “Opinion of the Court”.
...
Justice Thomas, in his Dissent, and many of the Briefs filed, pointed out to the Respondents the key language in the Supreme Court's first ruling on this point of law:
[Thomas Dissent P. 36]
>This Court long agreed that the Citizenship Clause did not apply to persons born here to children of temporary visitors. Just five years after the Citizenship Clause was ratified, this Court explained that the phrase “subject to the jurisdiction” excluded persons not domiciled here: “The phrase ‘subject to its jurisdiction,’” the Court explained, “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.” Slaughter-House Cases, 16 Wall., at 73.
Justice Thomas, also explicitly questioned the Respondents' omission and put the Respondents On Notice of their obligation to address the Supreme Court's prior ruling, relied upon by the President, on this point of law:
[Thomas Dissent P. 68]
>Early judicial precedent supports the same conclusion. In 1873—five years after ratification—this Court described the Citizenship Clause in a manner that is, on the Court’s view, indefensible. It stated that the Clause “exclude[d] from its operation children of . . . citizens or subjects of foreign states born within the United States.” SlaughterHouse Cases, 16 Wall., at 73. The Court rejects that position today, but declines to address its previous interpretation.
And, what actually is your response to the seemingly rational proposition that the United States should not be suddenly forced by constitutional interpretations to automatically "poach" the offspring of Chinese Olympic Athletes, Students, Tourists, and Temporary Workers in the United States -e.g., because China claims and wants these people and China has nuclear weapons? https://write.as/q1jc2dzd56xhp.md
If in the future they decided to break away from precedent and rule against birthright citizenship, do you think it would be less controversial and able to pass social muster for those who are prospective only? Seems to me that invalidating citizenship for someone who already received it would be highly problematic. Many don’t have dual citizenship so they would be without a citizenship. Or would that be something you can’t get a ruling on for lack of standing?
I don't think that's on the table right now. Recall that Trump's order, even if it had gone into effect, was not retroactive. So even Trump wasn't calling for invalidating citizenship for current citizens.
Separately, though, the Trump administration is moving to denaturalize or revoke the citizenship of certain naturalized citizens (see link below). But that isn't because of anything related to where they were born or the nationality of their parents at the time of their birth; it's based on allegations that they "conceal[ed] previous crimes or committ[ed] fraud during the naturalization process."
Ok that makes more sense (the first part) and while it is likely an overreach, at least the second part is based on an argument related to fraud or concealment. I’m also interested if there is going to be any traction on removing dual citizenship.
Please Reconsider your censorship. What are you afraid of?
??? "the [CHINESE] were considered to have sovereignty and so the [CHINESE] were subject tot he jurisdiction of their [CHINA]".
The Majority Opinon Judges were UNABLE to identifty ("the Court cannot explain") any possible justification for allowing Chinese Nationals Birth Tourist babies to have UScitizen status but also that status was denied to Amerindians. You are not going to accomplish any logical distinction. There is no logical distinction. The Majority Opinion is only BASED ON obviously-FALSE FACTUAL LIES https://write.as/q1jc2dzd56xhp.md
"Excluded by both were the children of foreign ministers and members of 19thcentury Indian tribes over whom the United States had ceded a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign (or quasi-sovereign). No such intersovereign concerns apply to children born of parents unlawfully or temporarily present in the United States; no foreign sovereign would “have any motive for wishing” them outside this Nation’s authority. Ibid"
The Dissent specifically Pointed out the Factual Falsehood of the Majority's False assertion of "No such intersovereign concerns":
"But, the Court cannot explain why tribal Indians were not “subject to the jurisdiction” of the United States if they happened to be born outside Indian lands while foreign temporary visitors were. It is true that tribal Indians belonged to “alien and sovereign” nations and that the United States’ relations with them implicated intersovereign concerns.” Ante, at 12. But, temporarily visiting foreigners also belong to “alien and sovereign” nations, and the United States’ relations with them also implicate intersovereign concerns.” It is difficult to understand why China, for example, would be less alien or less sovereign than the Cherokee Nations. It is also difficult to understand why tribal Indians would be less entitled to American citizenship if born on non-Indian land within the United States than children of birth tourists who immediately returned to China.
The Majority Judge's ruling in Trump v. Barbara is BASED ON NOTHING BUT LIES and unconstitutional disregard of Constitutional Separation of Powers. https://write.as/q1jc2dzd56xhp.md
I agree with Mr. Lat's reply to your comment, Shanti. My own additional take, for what it's worth:
The set of judge-made rules known collectively as "stare decisis" — the rules that the Dobbs majority opinion tracked through before overruling Roe v. Wade, and that Justice Kavanaugh reemphasized in dicta pre-distinguishing Roe's vulnerability to being overruled, in marked contrast to Lawrence v. Texas (striking down Texas' criminal sodomy statute), Obergefell v. Hodges (protecting same-sex marriages), Griswold v. Connecticut (contraceptives access), and Loving v. Virginia (interracial marriages) — include the public's justifiable reliance on the precedent which the appellate court is considering overruling.
Let's hypothesize that in some future case, one side argues that Trump v. Barbara should be overruled. Especially if they sought a retroactive stripping of citizenship from those who've relied on prior law (and who will hereafter also rely on Trump v. Barbara), such a result would turn the affected persons' lives topsy-turvy forever after. For purposes of the reliance prong of stare decisis analysis, citizenship seems to me fairly close to the marriage and family-focused interests that Justice Kavanaugh (and many others, maybe including even Justice Alito) have predicted will likely deter a future court from overruling Lawrence, Obergefell, Griswold, or Loving — notwithstanding Roe's overruling by Dobbs. Pregnancies are necessarily of limited duration. Marriages and families aren't — and we shouldn't want them to be! Citizenship is likewise one of the fundamental attributes of personal property rights and personal status, woven deeply into the orderly and rational planning and living of millions of people's entire lives, which should give extra weight — probably outcome-dispositive weight — if Trump v. Barbara is challenged in the future.
A hypothetical future decision overruling Trump v. Barbara would have a hard time giving anything more than an ad hoc (in in my eyes, repulsive) justification for making a prospective-only ruling, unless the Fourteenth Amendment has been amended in the meantime.
So my own hot take is that Trump v. Barbara is probably safe — which is to say, it's unlikely to be overruled — in the near and intermediate future.
Litigation that's directly about citizenship, brought by someone whose citizenship status has been denied or revoked, is unlikely to be sidestepped on standing grounds.
"break away from precedent and rule against birthright citizenship"
I do not understand why people refer to 14th Amendment "Born Subject" US Citizenship is referred to as "BirthRight".
1) The Supreme Court stated that the legal imposition of US Citizenship upon a helpless infant is based on the Fuedal concept of "Jus Soli" (Right of the LANDLORD to the animals born on his land). Per Justice Thomas, “The Court says that the Citizenship Clause incorporated the English feudal principle that subjects owed lifetime servitude to the King who owned the soil on which they were born” which sounds not very nice. So, an innocent baby can grow up in China and later be extradicted/conscripted into the US Army, just because he was on one day 'born subject to" the RIGHT OF THE US GOVERNMENT to all the animals born upon its soil. So, would it might be more appropriate to refer to it as a BirthBurden, or a BirthHarness or a BirthToll, or BirthServitude?
2) The status of US citizen imposes liabilities on a global and lifelong scale including "future U.S. taxation, extradition, and compulsory service in the United States military, which would force those individuals to take up arms against their native homelands." https://write.as/q1jc2dzd56xhp.md So, an innocent baby born in USA but raised entirely in China, and raised to love the Chinese people and the Chinese system, can be extradicted or extracted and forced by the US Government to pick up a gun and fight against his Chinese brothers and sisters?
3) Even in peacetime, how will a "US Citizen" raised in China keep up with the important US issues that He or She will be burdened to vote upon (e.g., upon reaching 18) via mail-in ballot? If the US Citizen child has never lived as an adult in any US State, how will s/he know where to mail in its Mail-In votes in the US elections? If there someday are a few tens of millions US Citizens voting in and from China, how will the US Postal Service handle the sudden serge of incoming US Mail around each Federal election day? And, how will the US Postal Service handle delivery of all the Tax Credits, Medicare, Social Security Checks that these tens of millions of US Citizens in China will be due to receive? If the tens of millions of US Citizens living in China decide that they do not want to pay US Income Taxes, how/can the US Government collect these taxes (in China)?
I think the case could be made for such an individual to revoke his/her U.S. citizenship, although he/she is probably less likely to do so if not qualifying for citizenship in any other country.
I cannot recommend highly enough the George Takei musical “Allegiance.” If you don’t think musical theater and constitutional law occasionally intersect in important ways, think again. Also worth reading is Prof. Kermit Roosevelt’s book with the same title. Both are about the exclusion and internment of Japanese-Americans during World War II.
Nice writeup, David. Thanks, and thanks for opening up the comments.
I can recognize there are arguments, and some support, for saying that citizenship shouldn't be automatic for anyone whose mother can get in the country, legally or illegally, for delivery. I'm not a fan of the argument, because I think that the US has benefitted enormously from relatively open immigration, and I certainly don't like the idea of large numbers of noncitizen residents.
Legally, I'm a bit dismayed that 3 of the Justices seem to think that the Court and the laws have been wrong for 100 years (meaning that birthright citizenship is actually forbidden), or that the President has the authority to change the definition on his own, even violating Statute to do so.
Politically, I agree that the Court would not have had the support of the populace if it allowed Trump's Executive Order to stand, and that the Court would of course have to consider that fact in reaching its decision.
"or that the President has the authority to change the definition on his own, even violating Statute to do so" The Executive Order did not purport to "change the definition" of the words "born ... subject to the jurisdiction" . According the US Supreme Court:
“The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
The Slaughter-House Cases, 83 U.S. 36, 73 (1873).
Why is the President of the United States not entitled to the rely upon the definition and rule that the United States Supreme Court explicitly and unambiguously defined as the jurisdictional limit of the Fourteenth Amendment’s Citizenship Clause?
Why does the Majority Opinion in Trump v. Barbara entirely ignore and not quote at all this prior ruling of the US Supreme Court? Is that unexplained omission a "crime" by the Judges? https://write.as/q1jc2dzd56xhp.md
Yous state: "I certainly don't like the idea of large numbers of noncitizen residents". [That is what Border Wall and ICE is for, so why is that relevant to the discussion?] But, the Arguments involved the possibility of China manufacturing Millions of "non-resident US citizens" by way of "birth tourism":
"Today, the Court does so again by recognizing a constitutional right to citizenship for
the children of all foreign birth tourists and illegal aliens. " ... The policy encouraged “birth tourism”—the practice of traveling here with temporary authorization solely to give
birth and obtain citizenship for one’s children, then returning to raise them in another country. Large numbers of children are born in the United States each year to parents who are temporarily present here in order to obtain citizenship for their children.
...
"The Citizenship Order is therefore, insofar as it applies to persons not domiciled here, consistent with the Citizenship Clause. It is consistent with the Citizenship Clause in
its exclusion of the children of lawful temporary visitors, such as birth tourists. The exclusion of the children of lawful temporary visitors—who are, by definition, not domiciled here—was originally a matter of widespread agreement [quoting The Slaughter-House Cases, 83 U.S. 36, 73 (1873) and its progeny].
[THOMAS, J., dissenting]
Why are you so eager that China can systematically accumulate, control, educate, indoctrinate millions of nonresident alien "US Citizens" who have no real connection with the People of the United States, no empathy for US People, and no respect for US Constitutional Limitations?
Why are you so eager that China can systematically train and finance millions of nonresident alien "US Citizens" who (because not domiciled) have no real connection with the People of the United States, no empathy for US People, and no respect for US Constitutional Limitations, to become elected as US Congressmen, US Senators, and US President?
Consider a parallel: In Dobbs v. Jackson Women's Health Organization—which dismantled a specific fifty-year-old constitutional ruling—the Court spent dozens of pages analyzing, confronting, and explaining why Roe v. Wade was "wrong". It did not simply pretend Roe did not exist. What would you have thought of the majority's intellectual integrity in Dobbs if they had completely ignored Roe v. Wade?
Yet, that is precisely the kind of judicial evasion the majority practiced in Trump v. Barbara.
The Slaughter-House Cases (1873) was penned a mere five years after ratification by Justices worked at the Capitorl and who lived through the drafting and debates. For the modern Court to ignore it entirely—rather than citing and distinguishing it—suggests a certain deviation from prior norms of judicial conduct to say the least.
The majority purports to rely on a rigorous, originalist evaluation of the history of jus soli and the Fourteenth Amendment. Yet, to reach its conclusion, it completely erased the Supreme Court's own earliest, most historically proximate exposition of the Citizenship Clause, made by Justices who were personally present in the Capitol during the debates in 1866 and who personally knew the proponents of the Fourteenth Amendment.
Do you possess the intelectual honesty to acknowledge that the 1873 Jurists's statement was TRUE AS A FACT, that the Framers of the 14th Amendment "intended" that, i.e., "intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States”? The Slaughter-House Cases, 83 U.S. 36, 73 (1873).
So, why didn't the current Majority Judges simply Acknowldge that they are reaching a conclusion contrary to what the people who drafted and proposed the 14th Amendment "intended", but that their Original Intent does not matter because .....?
The later cases never resolved the same-issue: United States v. Wong Kim Ark (1898) was explicitly limited to the children of permanently domiciled resident aliens. Wong Kim Ark did not purport to resolve the status of children born to temporary visitors, tourists, or unlawfully present aliens subject a foreign power.
Comparing the majority’s total silence to the way the Court handled Roe v. Wade in Dobbs, highlights the difference between a legitimate judicial debate (confronting and overruling supposedly "bad" precedent) and an intellectually dishonest evasion (pretending a massive historical piece of the Court’s own jurisprudence simply does not exist).
So, you just assert that the Majority's omission to quote and explain prior The Slaughter-House Cases is not a "crime"?
Is that all you have to say? How do you know it is not a "crime"??
Have you seen exactly this judicial behaviour before in any other decisions of the US Supreme Court [compare Dobbs v. Jackson Women's Health Organization ]???
So, what then is The New Rule of Conduct for Attorneys and Judges: Would it now be ethical for an attorney to "conceal" or "fail to disclose" and ENTIRELY IGNORE any specified Supreme Court decision (apparent controlling legal authority) older than 50 years old? Can Judges now campaign by promising to ENTIRELY IGNORE specific decisions that they just disagree with?
Do the people not have a prima facie right to doubt the legitimacy of the Court and of its written opinions, if the Court itself simply ignores its own prior authoritiative statements on-point?
If not a statutory or Common Law "crime", does this omission not arguably represent a profound abdication of the intellectual honesty required by Article III 'Good Behavior' as argued in the Articles of Impeachment proposed at https://write.as/q1jc2dzd56xhp.md ?
As always thank you for your amazing and thoughtful reporting. And as I mentioned on X yesterday, your prediction about the outcome here was spot on, and I much appreciate your honesty and hope that more folks will take you seriously in future. I'm not an attorney, in fact have not gone to law school yet, but do want to, so what I'm about to say could be very ignerant. However, what bothers me most about this case and how it came to be is how partisanship seems to have colored the scholarship, especially on the Trump side, if you will. Why and how did these scholars come out so quickly with a new, some call revisionist, narrative of the history? Why is it that so many conservative scholars are now suddenly jumping on this gravy train? More so, is partisanship or a wish to conform contributing to the fast paced volume of articles and support from various public figures? How and why is it that some scholars (Wormen and Barnet) proclaim victory by stating that well, three justices on the court accepted our view? To me, it seems that victory and acceptance of a position is obtained through the long game. And why too are so many dismissive of the majority consensus position on this issue? (See Erik Wessan's tweets throughout, alluding to a "minority view" of scholars where in fact the minority view seems to be his prefered one.) In other words, my issue is this, is scholarship and articles being written to have a genuine back and forth, or to score partisan political points? And more so, how is it now that so many are springing out of the woodwork to support the Trump position, when even in his last term almost all in the government and out agreed this was unconstitutional? Is this similar to the ACA litigation, from off the wall idea to on the wall idea? Enough said for now, don't even get me started on the role that state attorney generals, on both sides played in this case. As I said before, their influence really should be reduced, and courts should not put as much weight as they do on their views.
FWIW I strongly agree that more attempts to amend the constitution should be made. If the conservative justices hold that the constitution should be read as supporting the concept of a unitary executive, then it needs to be changed so that the executive’s powers are more clearly limited.
No Mayflower in my family tree, but a cousin of mine on my father's side who's into genealogy has traced our forebears from pre-Revolutionary War Virginia to Tennessee, and thence (immediately after the Civil War, in which they were Unionists) to Texas. And I could not possibly agree with you more fervently, Mr. Lat, that neither you nor any other "birthright citizen" is "less than." That's so utterly contrary to my own life experience, including my last 46 years in one of America's premiere international melting pots, Houston — a city I chose to make my career in for many reasons, but among them that it doesn't much matter to anyone important who your daddy is or was.
My only disappointment with Trump v. Barbara is that it wasn't unanimous. It should've been, just like Brown v. Board was unanimous.
PS: It's slightly off-topic, but on the subject of it mattering who your daddy was, I recall my flyback interview in the fall of 1978 with a firm that was, and remains, among Atlanta's most prominent. I was hosted for dinner at the home of one of the firm's senior partners, and in complimenting his wife on their lovely home, I said something to the effect of, "the firm must be prospering!" She gave me a funny look and said, IIRC, "Oh, honey — you're not looking at 'lawyer money.'" (Pronounced "LAAH-yah.") It could have been an episode from Tom Wolfe's "A Man in Full."
> Children born in the U.S. to parents who are in the country illegally: 49% support automatic citizenship, 49% oppose.
Do we know whether that 49/49 split changes if r question is about parents are here long-term (per the whole domicile argument)?
A toss-up split might be very different if you separated that single question into long-term vs. short-term, i.e. parents who are here illegally but who have made the US their home, as opposed to mothers coming here late in their pregnancy to have anchor babies?
See the bullet above, which I think was designed to get at so-called "birth tourists":
"Children born in the U.S. to parents who are in the country legally on tourist visas: 58% support automatic citizenship, 41% oppose."
Based on the polling, it seems that people are more willing to give automatic citizenship to children born to tourists than to children born to undocumented immigrants.
David, can you explain this statement in your article: "Although the order wasn’t retroactive, its issuance at least raised the possibility that my U.S. citizenship could be taken away in the future."
The President's Article 2 authority is to Expressly Waive the "Jurisdiction of the United States" over specified aliens at the time of their birth.
https://write.as/q1jc2dzd56xhp.md citing Schooner Exchange v. McFaddon, 7 Cranch 116. [which was cited favorably in Majority Opinion in Trump v. Barbara] Trump's 2025 Executive Order could NOT EVEN POSSIBLY retroactively Expressly Waive "Jurisdiction of the United States" over specified aliens. If the alien born before 2025 was already-born "subject to the Jurisdiction" then the 14th Amendment Citizenship burdens are constitutionally imposed upon that alien child regardless of the subjective desires of the alien parents, and regarless of the claims asserted over that alien child by a nuclear-armed foreign adversary government, e.g., China).
No mere Executive Order can reverse a Constitutionally Imposed Burden of US Citizenship without consent/due process of the aggrieved alien) But, the alien aggrieved with imposed US Citizenship, global liability for Income Taxes, extradition and military conscription, has a statutory limited right of Expatriation.
So, what logical basis would you have for worrying "that my U.S. citizenship could be taken away in the future."???
But within the wider set of illegal immigrants, there are those (likely very few) who come here late in pregnancy specifically to give their child citizenship, as opposed to those who come here and subsequently have children.
A single question can hardly accurately cover both cases, even though putatively they are all here illegally.
"Anchor babies" is a deeply offensive term, Mr. Hewitt. A baby is a baby. A baby born in the U.S. is a U.S. citizen. And that's true regardless of what plans his or her parents had before the mother gave birth here.
I'd oppose them, but Congress could probably pass, without violating the Constitution, even tighter immigration laws intended to deter or even exclude those parents who are taking deliberate advantage of the birthright citizenship provision in the Fourteenth Amendment.
Even then, however, I'd take offense at any baby anywhere being described as an anchor.
Of course, your mileage may vary. But that's my very firm take. Best regards.
Apologies - I was deliberately trying to use the phraseology used by those who oppose allowing illegal immigrants in order to highlight how they think about the issue - I should have made that clear or used a different term. Mea culpa.
My point is, for the 49% of folks who say they don't want the children of illegal immigrants to be citizens, it would, I think, have been preferable to split it into 2 questions:
* Children born to long-term illegal immigrants who have made a life here
* Children born to short-term immigrants who have (very?) recently arrived here
I suspect that (and would like to think that) many of those folks feel differently about those who have families after being here for a while, as opposed to the media portrayal of someone who comes here to have a child specifically so that child will be a citizen.
What I'm saying is that a single "illegal immigrants" question has no nuance.
"'Anchor babies' is a deeply offensive term, ... but Congress could probably pass,"
Congress does not need to do anything about such such illegal alien babies.
The President has Complete, Absolute and Exclusive Article 2 Power to simply "Declare" that these babies are"NOT 'born ... subject to the Jurisdiction of the United States'" and thus they are Not Born into and anchored by the burdens and obligations of Citizens of the United States.
The link https://write.as/q1jc2dzd56xhp.md down deep in the text explains that the President can easly end "birth tourism" or illegal "immigration" as a method of obtaining US Citizenship. All the President needs to do to end Birth Tourism "Citizens" is to unambiguously and EXPRESSLY "Declare" in his next Executive Order that "alien babies being born to Foreign Tourists within the United States are henceforth exempt from the Jurisdiction of the United States at the time and place of their being born within the United States"
Maybe you would prefer or allow the term "anchored babies"?
When evaluated through the lens of international comity, executive authority, and the mechanics of jus soli (right of the soil) jurisdiction, the concept of a legally "anchored" describes a precise, rigid, and practically immutable constitutional relationship.
A helpless infant subjected to the jurisdiction of the United States at the of birth is permanently anchored to the heavy, lifelong legal and financial duties of U.S. citizenship, regardless of their family's hope's dreams and intent and regardless of a lack of permanent ties to the country. These global obligations include:
Global Taxation: The United States is one of the few nations that taxes its citizens on their worldwide income, regardless of where they reside or where the income is earned.
Compulsory Military Service: U.S. citizens are subject to extradition (from the country of their parents), conscription and mandatory Selective Service registration.
Extradition and National Loyalty: A U.S. citizen is legally bound to the nation and can be forced to face its courts, creating potential conflicts of loyalty if their native homeland enters into conflict with the United States.
Far from being a mere political label, the term "anchored" describes the practical reality of a helpless newborn alien individual being structurally tied to these unavoidable, lifelong sovereign demands simply by the happenstance of their birth location.
But, President Trump, in his next Executive Order can rescue these helpless alien/tourist babies from the lifelong burdens of being born subject:
If integrated into a Petition for Rehearing or a Brief on the Merits in subsequent litigation, this "Express Waiver" argument would be structured around three primary legal pillars.
Pillar 1: The Failure to Distinguish Between "Express" and "Implied" Sovereign Consent
In Schooner Exchange, Chief Justice John Marshall established that while a nation’s territorial jurisdiction is "absolute and exclusive," the sovereign may consent to waive or exempt certain alien classes from this jurisdiction [2]. Crucially, Marshall held that "This consent may be either express or implied" [2].
A legal brief seeking a rehearing would argue that the Trump v. Barbara majority committed a fundamental error of omission by conflating these two distinct concepts:
The Error in the Majority's Logic: The majority relied on Schooner Exchange to argue that temporary visitors (tourists, students) do not enjoy an implied exemption from U.S. jurisdiction simply by entering the country [1, 2].
The Omission of Express Power: The majority failed to address the fact that the President's Executive Order was not asking the Court to imply a waiver of jurisdiction. Instead, the Executive Order was an express declaration of the sovereign's intent to waive its jurisdiction over a specific class at the moment of birth.
The Legal Consequence: Because Wong Kim Ark explicitly held that "subject to the jurisdiction" in the Fourteenth Amendment is used "in the same sense in which the like words had been used by Chief Justice Marshall in... The Exchange," [1] the Fourteenth Amendment necessarily incorporates Marshall's rule that the sovereign retains the absolute power to expressly waive its jurisdiction [2]. By ignoring the "express" prong of Marshall's framework, the majority unconstitutionally stripped the Executive of a recognized sovereign tool [2].
Pillar 2: Explaining the "Category Error" of the "Continual Infraction" Warning
To justify denying an exemption to temporary visitors, the majority in Trump v. Barbara likely relied on Marshall's warning in Schooner Exchange that:
"...it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, if such [private] individuals or merchants . . . were not amenable to the jurisdiction of the country." [2]
A petition for rehearing can expose this as a biological and logical category error:
The Original Context: Marshall's warning was directed at adult, mobile foreign merchants moving "indiscriminately" through a host nation [2]. If these adults were immune from local criminal and civil laws, they could commit "continual infractions" (such as theft, contract breaches, or violence) without domestic recourse [2].
The Present Context: An unborn child or a newborn infant at the exact moment of birth is physically incapable of committing a "continual infraction" of domestic laws. A newborn cannot commit crimes, break contracts, or threaten domestic security.
The Legal Distinction: Because the domestic security concerns of the "continual infraction" doctrine do not apply to an infant at birth, the sovereign faces no "inconvenience" or "danger to society" in declaring an express, temporary waiver of jurisdiction over that infant at the moment of birth [2]. Applying a doctrine designed to regulate mobile adult merchants to a newborn infant represents an arbitrary and legally unsound extension of Schooner Exchange [2].
Pillar 3: Reframing the President's Order as "Any Express Declaration to That Effect"
Under Schooner Exchange, while a court cannot invent an implied waiver for private individuals, the sovereign always retains the power to grant an exemption if it is "expressly stipulated" or established by "any express declaration to that effect." [2]
A rehearing petition would argue that the President's Executive Order serves as "any express declaration to that effect" under Marshall's framework:
The Executive as the Sovereign Organ: Under Article II, the President is the sole organ of the federal government in foreign relations and comity.
The Ministerial Duty of the Court: Once the President issued an express executive declaration waiving jus soli jurisdiction over the children of temporary/undocumented aliens at the moment of birth, the Court’s ministerial duty under Schooner Exchange was to determine whether this constituted an "express waiver" by the sovereign [2].
The Judicial Usurpation: By ignoring the President's express declaration and treating the issue solely under the doctrine of implied waivers, the majority effectively ruled that the United States is the only sovereign on Earth incapable of expressly waiving its own territorial jurisdiction—a direct violation of Marshall's holding that sovereign power "is susceptible of no limitation not imposed by itself." [2]
Summary of How to Present This in Court
To use these arguments to force a rehearing or a new test case, counsel would frame the litigation not as a debate over immigration policy, but as a pure separation-of-powers issue:
Traditional 14th Amendment Argument The "Express Waiver"
Does the Fourteenth Amendment automatically exclude children of temporary visitors from birthright citizenship?
Result: The Court answers "No" based on a broad reading of Wong Kim Ark [1].
Reframed Express Waiver Argument
Does the President, wielding the Article II foreign affairs power, possess the sovereign authority under Schooner Exchange [2] to expressly waive territorial jurisdiction over specified classes of temporary alien births?
Result: The Court is forced to address the sovereign's historic power of express waiver [2], making it much harder to strike down the Executive Order without directly undermining Chief Justice Marshall's foundational definition of national sovereignty.
"The Citizenship Clause was consistently interpreted not to apply to the children of foreign temporary visitors, who were by definition not domiciled in the United States." So did Thomas footnote this? So far I am not seeing where he gets the "domiciled " part. And as for babies being born here somehow automatically subject to foreign governments... my kid was born here in US to 2 dual-citizenship parents. I had a year from giving birth to claim UK citizenship for my baby and if I had missed the deadline that would not have been available in the future. So ... was my baby born w allegiance of some kind to the UK? Not clear to me. Also, "subject to the jurisdiction" can easily be understood to mean if an illegal immigrant or temporary resident violates the law here, they are found to be subject to the law. The highly unusual situation in which a person present here is NOT , applies to diplomatic immunity (and possibly native Americans? Is that right?) so the default position is that if you are human being present here then that makes you subject to the jurisdiction of this country. Right? No justice on that court would ever say otherwise, would ever say "No problem, you have a form of diplomatic immunity so walk free." So simply because being so subject ALSO entitles you to something precious (US citizenship) doesn't logically mean you can be deemed not to be so subject - just because Thomas and co have other reasons for preferring that reality.
HA! Now I am puzzled. I could have sworn i was told there was a year-from-birth deadline but now i googled the rules and it doesn't seem so. Who knows!
> And as for babies being born here somehow automatically subject to foreign governments... my kid was born here in US to 2 dual-citizenship parents. I had a year from giving birth to claim UK citizenship for my baby and if I had missed the deadline that would not have been available in the future. So ... was my baby born w allegiance of some kind to the UK? Not clear to me.
Really? My daughter was born in the US to my wife (a US citizen by birth) and myself (A UK citizen by birth, but now also a naturalized US citizen). My daughter automatically has UK citizenship by virtue of having a parent who is a UK-born British citizen - no-one needed to claim or apply for anything.
Many people think that having the status of "citizen of the United States" is advantageous to them personally, because it prohibits deportation by ICE. But, with US citizenship comes the burdens of Global liability for US Taxes, US Statutes, extradition, and US military service, even if the alien's "US Citizen" baby has lived in a foreign country its entire life following its birth within the United States to "birth tourists". The international implications of a "US citizen" being claimed or controlled by two opponent sovereign nations at the same time are enormous. This article seems to explain many of these issues. https://write.as/q1jc2dzd56xhp.md
I find it very odd that the Majority did not acknowledge nor comment at all on the text of the Slaughter House Cases that was emphatically noted by the Justice Thomas in his Dissent:
//
In The Slaughter-House Cases, 83 U.S. 36, 73 (1873), the US Supreme Court explicitly and unambiguously defined the jurisdictional limit of the Fourteenth Amendment’s Citizenship Clause, declaring:
“The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
...
Yet, in Trump v. Barbara (2026), the Respondents willfully, silently, and fraudulently concealed the existence of this on-point ruling text in the Slaughter-House Cases from their 26-pages “Opinion of the Court”. By omitting any mention or quote of this controlling text that was implicitly relied upon by the President in his Executive Order, the Respondents engaged in a deceptive act analogous to a common-law fraud and a physical assault and battery.
...
Justice Thomas, in his Dissent, and many of the Briefs filed, pointed out to the Respondents the key language in the Supreme Court's first ruling on this point of law:
[Thomas Dissent P. 36]
>This Court long agreed that the Citizenship Clause did not apply to persons born here to children of temporary visitors. Just five years after the Citizenship Clause was ratified, this Court explained that the phrase “subject to the jurisdiction” excluded persons not domiciled here: “The phrase ‘subject to its jurisdiction,’” the Court explained, “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.” Slaughter-House Cases, 16 Wall., at 73.
Justice Thomas, also explicitly questioned the Respondents' omission and put the Respondents On Notice of their obligation to address the Supreme Court's prior ruling, relied upon by the President, on this point of law:
[Thomas Dissent P. 68]
>Early judicial precedent supports the same conclusion. In 1873—five years after ratification—this Court described the Citizenship Clause in a manner that is, on the Court’s view, indefensible. It stated that the Clause “exclude[d] from its operation children of . . . citizens or subjects of foreign states born within the United States.” SlaughterHouse Cases, 16 Wall., at 73. The Court rejects that position today, but declines to address its previous interpretation.
It’s cowardice and political opportunism on the majorities side. The intention of the 14th amendment was never what we have now with birthright citizenship. As you have pointed out, this was even explicitly said several years after the amendment was added. The problem is once these practices get set in motion it feels cruel to reverse them. That’s why they need to be nipped in the bud before they snowball into something uncontrollable. We are living in a highly globalized world now where you can fly to America in a matter of hours from most places. Having birthright citizenship in place now is frankly insane. Just consider the policy itself in a vacuum and apply it to other countries. Bonkers
The majority did not appear to foreclose the possibility of a future statute or visa regulation that could address the problematic “birth tourism” issue and could pass constitutional muster.
Because illegal immigration is likely to remain a political liability, and legal immigration is generally viewed as beneficial, I think any future administration would not make the political mistake of allowing porous borders again.
Unlike Dobbs, the effect of this opinion is the status quo.
The link expliains that the President can easly end "birth tourism". All the President needs to do to end Birth Tourism is to unambiguously and EXPRESSLY "Declare" in his next Executive Order that "alien babies being born to Tourists within the United States are henceforth exempt from the Jurisdiction of the United States at the time of their being born"
If integrated into a Petition for Rehearing or a Brief on the Merits in subsequent litigation, this "Express Waiver" argument would be structured around three primary legal pillars.
Pillar 1: The Failure to Distinguish Between "Express" and "Implied" Sovereign Consent
In Schooner Exchange, Chief Justice John Marshall established that while a nation’s territorial jurisdiction is "absolute and exclusive," the sovereign may consent to waive or exempt certain alien classes from this jurisdiction [2]. Crucially, Marshall held that "This consent may be either express or implied" [2].
A legal brief seeking a rehearing would argue that the Trump v. Barbara majority committed a fundamental error of omission by conflating these two distinct concepts:
The Error in the Majority's Logic: The majority relied on Schooner Exchange to argue that temporary visitors (tourists, students) do not enjoy an implied exemption from U.S. jurisdiction simply by entering the country [1, 2].
The Omission of Express Power: The majority failed to address the fact that the President's Executive Order was not asking the Court to imply a waiver of jurisdiction. Instead, the Executive Order was an express declaration of the sovereign's intent to waive its jurisdiction over a specific class at the moment of birth.
The Legal Consequence: Because Wong Kim Ark explicitly held that "subject to the jurisdiction" in the Fourteenth Amendment is used "in the same sense in which the like words had been used by Chief Justice Marshall in... The Exchange," [1] the Fourteenth Amendment necessarily incorporates Marshall's rule that the sovereign retains the absolute power to expressly waive its jurisdiction [2]. By ignoring the "express" prong of Marshall's framework, the majority unconstitutionally stripped the Executive of a recognized sovereign tool [2].
Pillar 2: Explaining the "Category Error" of the "Continual Infraction" Warning
To justify denying an exemption to temporary visitors, the majority in Trump v. Barbara likely relied on Marshall's warning in Schooner Exchange that:
"...it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, if such [private] individuals or merchants . . . were not amenable to the jurisdiction of the country." [2]
A petition for rehearing can expose this as a biological and logical category error:
The Original Context: Marshall's warning was directed at adult, mobile foreign merchants moving "indiscriminately" through a host nation [2]. If these adults were immune from local criminal and civil laws, they could commit "continual infractions" (such as theft, contract breaches, or violence) without domestic recourse [2].
The Present Context: An unborn child or a newborn infant at the exact moment of birth is physically incapable of committing a "continual infraction" of domestic laws. A newborn cannot commit crimes, break contracts, or threaten domestic security.
The Legal Distinction: Because the domestic security concerns of the "continual infraction" doctrine do not apply to an infant at birth, the sovereign faces no "inconvenience" or "danger to society" in declaring an express, temporary waiver of jurisdiction over that infant at the moment of birth [2]. Applying a doctrine designed to regulate mobile adult merchants to a newborn infant represents an arbitrary and legally unsound extension of Schooner Exchange [2].
Pillar 3: Reframing the President's Order as "Any Express Declaration to That Effect"
Under Schooner Exchange, while a court cannot invent an implied waiver for private individuals, the sovereign always retains the power to grant an exemption if it is "expressly stipulated" or established by "any express declaration to that effect." [2]
A rehearing petition would argue that the President's Executive Order serves as "any express declaration to that effect" under Marshall's framework:
The Executive as the Sovereign Organ: Under Article II, the President is the sole organ of the federal government in foreign relations and comity.
The Ministerial Duty of the Court: Once the President issued an express executive declaration waiving jus soli jurisdiction over the children of temporary/undocumented aliens at the moment of birth, the Court’s ministerial duty under Schooner Exchange was to determine whether this constituted an "express waiver" by the sovereign [2].
The Judicial Usurpation: By ignoring the President's express declaration and treating the issue solely under the doctrine of implied waivers, the majority effectively ruled that the United States is the only sovereign on Earth incapable of expressly waiving its own territorial jurisdiction—a direct violation of Marshall's holding that sovereign power "is susceptible of no limitation not imposed by itself." [2]
Summary of How to Present This in Court
To use these arguments to force a rehearing or a new test case, counsel would frame the litigation not as a debate over immigration policy, but as a pure separation-of-powers issue:
Traditional 14th Amendment Argument The "Express Waiver"
Does the Fourteenth Amendment automatically exclude children of temporary visitors from birthright citizenship?
Result: The Court answers "No" based on a broad reading of Wong Kim Ark [1].
Reframed Express Waiver Argument
Does the President, wielding the Article II foreign affairs power, possess the sovereign authority under Schooner Exchange [2] to expressly waive territorial jurisdiction over specified classes of temporary alien births?
Result: The Court is forced to address the sovereign's historic power of express waiver [2], making it much harder to strike down the Executive Order without directly undermining Chief Justice Marshall's foundational definition of national sovereignty.
Can you elaborate on "The majority did not appear to foreclose the possibility of a future statute or visa regulation that could address the problematic “birth tourism” issue and could pass constitutional muster."? I have found it difficult to find the path of that type through the broad assertions made in the Majority Opinion. Please point out what you found in the Majority Opinion.
"The rule’s exceptions were narrow: children born in lands the sovereign did not control, children born in areas temporarily outside the sovereign’s control, and children of foreign ministers (by afiction of extraterritoriality). Calvin’s Case, 7 Co. Rep., at 18a–18b, 77... ... The Fourteenth Amendment’s Citizenship Clause mirrored the common law’s criteria for citizenship...."
[Sylabus]
The International Organizations Immunities Act (IOIA) was ignored by the Court. This statute shows that the Congress and the Executive has the power to issue an "Exective Order" to decline or waive territorial jurisdiction over non-diplomats.
Likewise, the NATO SOFA, signed in London on June 19, 1951 prescribes that the United States agrees to decline or waive its territorial jurisdiction over non-diplomat foreign subjects—specifically: allied foreign military forces living on U.S. soil. This signed document was also entirely ignored by the Supreme Court.
"These American instruments of waiver of jurisdiction, are modern analogs of the English Executive Jurisdictional Waivers listed above, and of the Anglo-American Treaty Traditions listed above." in https://write.as/q1jc2dzd56xhp.md
The Majority Opinion of the Court purports to recognize only two or "three" narrow, established exceptions to the operation of the Citizenship Clause where individuals born on U.S. soil are not "subject to the jurisdiction" of the United States at birth:
1) Children of foreign diplomats: Because accredited diplomats enjoy diplomatic immunity, they are not subject to the ordinary civil and criminal jurisdiction of the United States.
2) Children of hostile invaders: Children born to foreign occupying military forces on U.S. territory during an armed conflict are not considered subject to U.S. jurisdiction.
3) A foreign Sovereign's Children
The Court does not expressly acknowledge that Congress and the President have the constitutional authority to Expressly Waive Jus Soli/Juridiction for aliens outside of and beyond the "three" categories. https://write.as/q1jc2dzd56xhp.md
The Supreme Court makes no mention of International Organizations Immunities Act (IOIA) nor of the "Executive Order" that it comtemplates. So, are Olympic Committee secretary's children now born "citizens of the United States"?
The Supreme Court makes mention of the NATO SOFA signed document. So is the child of two NATO soldiers stationed in Nebraska now going to be born "US Citizens"?
So are these instruments NOW UNCONSTITUTIONAL as applied to the children of Olympic and NATO agents?
The Majority Opinions seem to be entirely incompetent for failure to acknowledge that Congress and the President have the Power to make EXPRESS WAIVERs of Jus Soli Jurisdiction for nondiplomat aliens, and that Congress and the President have in fact ALREADY DONE SO, in the IOIA and in the NATO SOFA
Other opinions in Trump v. Barbara outlined alternative views on what Congress could do:
The Kavanaugh Roadmap: Justice Brett Kavanaugh wrote a separate concurring opinion. He agreed that President Trump's executive order was unlawful because it conflicted with the current federal statute, 8 U.S.C. § 1401(a). However, Kavanaugh argued that the executive order did not violate the Fourteenth Amendment. In his view, Congress could enact legislation to amend § 1401(a) to deny birthright citizenship to the children of temporary visitors and undocumented immigrants, and such a statute would be constitutional.
The Dissents: Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented, arguing that the Fourteenth Amendment does not mandate birthright citizenship for these groups. They maintained that the political branches (Congress and the Executive) possess the constitutional authority to define and restrict citizenship for the children of temporary visitors and illegal immigrants.
The Dissenting Opinions also fail to mention the IOIA and in the NATO SOFA. But, they seem to acknowledge that Congress and the President have the Power to make EXPRESS WAIVERs of Jus Soli Jurisdiction for nondiplomat aliens.
The Majority Opinion vaguely asserts that
"The [Executive] Order provides that children born of persons unlawfully or temporarily present in the United States are not 'subject to the jurisdiction' of the United States—and thus do not qualify for citizenship under the Fourteenth Amendment ...." but entirely ingores the Dispositivve Issue of whether that Executive Order itself was effectively an "Implied Waiver" or an "Express Waiver" of Jus Soli Jurisdiction (e.g., pursuant to the same Article 1 or Article 2 authority that created the IOIA "Executive Order" and in the NATO SOFA Waviers. [I do not express an opinion that the Executive Order itself was effectively an "Implied Waiver" or an "Express Waiver" of Jus Soli Jurisdiction] President Trump relied upon the prior holding of the US Supreme Court in The Slaughter-House Cases, 83 U.S. 36, 73 (1873):
"The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” The Slaughter-House Cases, 83 U.S. 36, 73 (1873) (the US Supreme Court explicitly and unambiguously defined the jurisdictional limit of the Fourteenth Amendment’s Citizenship Clause)
"The President of the United States, in exercising his Article II powers to secure the nation’s borders and manage diplomatic relations with foreign powers, acted in strict, reasonable, and lawful reliance on this explicit, un-overruled, and binding text of the Supreme Court." https://write.as/q1jc2dzd56xhp.md
Thus, the President would not have been aware, at the time of issuing the Executive Order in 2025, that its validity depended upon it being or containing an "Implied Waiver" or an "Express Waiver" of Jus Soli Jurisdiction?
At least because of entirely omitting any mention of the IOIA "Executive Order" Waivers and the NATO SOFA Waviers, the Majority Opinion entirely lacks facial competence.
Generally speaking, there seems to be a Competency Crisis in the US Supreme Court, which could ignite a Nuclear War with China. See e.g., https://write.as/q1jc2dzd56xhp.md
Does the fact that the US government signed numerous treaties with the Indians somehow affect the jurisdictional dispute as compared to the Chinese in Chicago example versus a Indian born in Chicago?
I think the constitutional politics weighing as heavily as they do shows that the dissenting position of the 5-4 constitutional question are correct on the merits, because the pragmatic consequences for real people would be more dramatic than perhaps any decision since Brown.
Before this started, I thought it was obvious that the 14th just branded citizenship by presence on the soil. It seemed noncontroversial.
After all the discussion... the real and noncontroversial exceptions that the majority did not contest are too diverse.
There are territorial residents, such as American Samoans or pre-Jones-Shafroth Puerto Rico.
Then there's the Census-excepted "Indians not taxed" category, which we very well know was expressly meant to be excepted with "under the jurisdiction."
Then there are invading foreign soldiers and accompanying occupiers.
Then there are diplomats and their families.
And, in fact, the law as practiced functionally excluded many people we now consider covered for a substantial length of time - perhaps as many as half of the Mexicans deported in the 1930s were born in the US.
If "under the jurisdiction thereof" is to have a coherent meaning that includes the many varied noncontroversial exceptions in a cleanly-defined category, it's going to end up including temporary visitors, illegal immigrants, or both.
As with Roe, the constitutional politics also force the majority into a compromise position. The majority is not ready to erase one or more of the previously-noncontroversial exceptions. A majority would not line up behind the idea that legislation was not required to grant citizenship to American Indians, for example, or upset the existing American Samoan applecart by forcing citizenship on them; this is an "originalist" court, after all. So, constitutional politics leaves us with an incoherent definition for "under the jurisdiction thereof," and as soon as the court shifts one justice to the right, we'll see a Dobbs-like overturning of this.
I absolutely agree it's going to be the new Roe - the entire Republican Party has been reorganized under a nativist banner, and any true believers that follow in Trump's footsteps will seek to have this overturned.
The United States of America and [The Signatory Country] (hereinafter referred
to jointly as the “High Contracting Parties”),
Desiring to strengthen the friendly relations and mutual respect between their
sovereign nations;
Recognizing the inherent right of every sovereign state to define the boundaries
of its own territorial and political jurisdiction;
Mindful of the potential for international friction, legal uncertainty, and
diplomatic disputes arising from overlapping claims of dual nationality and
conflicting principles of jus soli (citizenship by place of birth) and jus
sanguinis (citizenship by descent);
Seeking to preserve the political independence, national security, and exclusive
sovereign authority of each nation over its own nationals; and
Acting pursuant to their respective constitutional authorities to execute
treaties and manage foreign affairs;
Have agreed as follows:
ARTICLE I: DEFINITIONS
For the purposes of this Treaty:
1. “Covered National” shall mean any person who possesses the legal nationality
or citizenship of [The Signatory Country] under its domestic laws, and who
is temporarily, transitorily, or unlawfully present within the geographic
boundaries of the United States.
2. “Moment of Birth” shall mean the exact millisecond of emergence of a child
from the mother, prior to any legal or constitutional status attaching to
the infant under the laws of the receiving State.
3. “Extraterritoriality” shall mean the legal fiction and political reality by
which a designated space, person, or event is treated as being outside the
territorial jurisdiction of the host nation and under the exclusive
sovereign authority of the sending nation.
ARTICLE II: EXPRESS CESSION OF JURISDICTION
1. The United States of America hereby formally, expressly, and unilaterally
waives, cedes, and relinquishes all political, civil, and territorial
jurisdiction over any child born within the geographic boundaries of the
United States to parents who are both Covered Nationals of [The Signatory
Country] at the Moment of Birth.
2. The High Contracting Parties agree that at the Moment of Birth of any child of Covered Nationals, the physical volumetric space of the birth conforming to the physical shape and extent occupied by the Covered National being born (plus one centimeter of conformal shell) shall be deemed legally extraterritorial to the United States.
3. By virtue of this Treaty, the sovereign jurisdiction of [The Signatory
Country] shall immediately and exclusively attach to the child at the Moment
of Birth, ensuring that the child is born under the sole political
allegiance and sovereign authority of [The Signatory Country].
ARTICLE III: CONSTITUTIONAL EFFECT OF THE CESSION
1. Because the United States has expressly ceded and waived its jurisdiction
pursuant to Article II of this Treaty, any child born to Covered Nationals
within the geographic limits of the United States is, at the Moment of
Birth, born not "subject to the jurisdiction of the United States" within
the meaning of the Fourteenth Amendment of the Constitution of the United
States.
2. Consequently, the High Contracting Parties acknowledge that the
self-executing provisions of the Citizenship Clause of the Fourteenth
Amendment do not apply to such births, and no right to United States
citizenship shall attach, vest, or be claimed by virtue of the birth
occurring on U.S. soil.
ARTICLE IV: REPATRIATION AND RIGHT OF DEPARTURE
1. A child born under the terms of this Treaty shall be recognized by both High
Contracting Parties solely as a national of [The Signatory Country].
2. The United States shall facilitate the immediate and unobstructed departure
of the child and its Covered National parents from the territory of the
United States.
3. [The Signatory Country] agrees to immediately issue protective
documentation, passports, and consular registration to the child, and
confirms its absolute obligation under international law to accept the child
into its territory upon departure from the United States.
ARTICLE V: RATIFICATION AND ENTRY INTO FORCE
1. This Treaty shall be ratified by the High Contracting Parties in accordance
with their respective constitutional processes. For the United States, this
shall require the advice and consent of the United States Senate pursuant to
Article II, Section 2, Clause 2 of the United States Constitution.
2. This Treaty shall enter into force on the first day of the month following
the exchange of instruments of ratification at [Designated City].
3. This Treaty shall remain in force indefinitely unless terminated by either
High Contracting Party upon one (1) year's written notice delivered through
diplomatic channels.
IN WITNESS WHEREOF, the respective Plenipotentiaries have signed this Treaty and
have affixed thereto their seals.
DONE in duplicate at [City], this _____ day of [Month], [Year], in the English
and [Foreign Language] languages, both texts being equally authentic.
On what constitutional basis did the Supreme Court strike/enjoin the President's Executive Order, which contains a severability clause. Identify any flaw in this sequence of logical statements:
1) The Citizenship Clause of the Fourteenth Amendment does not confer any right upon aliens to be "born."
2) The Citizenship Clause of the Fourteenth Amendment does not confer any right upon aliens to be "born ... within the United States" territory.
3) The Citizenship Clause of the Fourteenth Amendment does not confer any right upon aliens to be "born ... subject to the Jurisdiction of the United States."
4) The Citizenship Clause of the Fourteenth Amendment imposes no limitations upon Congress to modify the border lines of the United States, or to build a Border Wall, and thus cause some people who are born to be born not "within the United States" territory.
5) The Citizenship Clause of the Fourteenth Amendment imposes no limitations upon Congress to modify the extent of the "jurisdiction of the United States" over aliens being born within the United States, and thus to cause some aliens who are born to be born not "subject to the jurisdiction of the United States".
6) The Citizenship Clause of the Fourteenth Amendment imposes no limitations upon the President to use an Executive Order to modify the extent of the "jurisdiction of the United States" over aliens being born within the United States, and thus to cause some aliens who are born to be born not "subject to the jurisdiction of the United States".
7) The Citizenship Clause of the Fourteenth Amendment is a conditional legal rule that merely attaches a consequence (citizenship) once its two antecedent conditions (geographic birth and birth subject to jurisdiction) are met; it does not strip the sovereign of its inherent, pre-existing power prevent those antecedent conditions from being satisfied in the first place.
8) The Citizenship Clause of the Fourteenth Amendment imposes no limitations upon the President, acting under his Article II foreign affairs and comity powers, to issue an express waiver of territorial jurisdiction over specific classes of temporary or unauthorized aliens being born within the United States, thereby preventing the conditional trigger of the Clause at the moment of birth.
9) The Citizenship Clause of the Fourteenth Amendment does not restrict the sovereign right of the United States—exercised through the treaty-making power of the President and the Senate—to contractually waive or decline territorial jurisdiction over foreign military forces (as under the NATO SOFA) or international personnel (as under the IOIA) stationed on U.S. soil.
10) The Citizenship Clause of the Fourteenth Amendment does not authorize the judiciary to command the Executive to assert political and penal jurisdiction over foreign nationals of zero-age being born within the United States when the Executive has formally determined, as a matter of diplomatic comity, that such jurisdiction should be and is expressly waived.
11) The Citizenship Clause of the Fourteenth Amendment cannot be interpreted to convert a judicial presumption regarding "implied" waivers of jurisdiction by the Sovereign into a constitutional restriction on the Sovereign's political branches' authority to issue express waivers of jurisdiction.
12) The Citizenship Clause of the Fourteenth Amendment imposes no limitations upon Congress, acting under its Article I power to establish an uniform Rule, to designate babies being born to parents of specific classes of non-immigrant visas or foreign enclaves on U.S. soil as exempt from the political jurisdiction at time of birth, thus preventing trigger of birthright citizenship.
13) Because the Citizenship Clause of the Fourteenth Amendment governs only the legal outcome of a pre-existing jurisdictional status rather than the Sovereign's power to prevent that status, any exercise of Article I or Article II power that excludes an alien from being born "within the United States" or from being born "subject to the jurisdiction" of the United States operates entirely outside the scope of the Fourteenth Amendment.
14) Consequently, any judicial attempt to interpret the passive, conditional language of the Citizenship Clause as an affirmative restriction on the sovereign’s (Congress's and/or President's) power to define or waive its own territorial jurisdiction over aliens being born constitutes an unconstitutional usurpation of Article I and Article II authority, transforming the Supreme Court into a "Super-Sovereign" that unconstitutionally dictates the limits of national sovereignty.
Thus, The Five Judges of the US Supreme Court must be Impeached and Removed from Office, e/.g,, per these Articles of Impeachment https://write.as/q1jc2dzd56xhp.md
A vital principle of international comity and national security: the sovereign's decision to waive or decline jurisdiction is not an attempt to hostilely "deny a right," but is a protective, defensive act designed to avoid overlapping sovereign claims that could lead to international friction or war.
Under international law, when two different nations claim the absolute allegiance of the same child (one through jus soli and the other through jus sanguinis), it creates a direct conflict between sovereigns that traditionally is resolved by war. If a foreign power (such as the Chinese Communist Party) claims exclusive jurisdiction over its citizens' children, the U.S. political branches have a legitimate, independent sovereign interest in declining to assert U.S. jurisdiction over those births to prevent diplomatic crises or dual-allegiance security risks.
Alignment with the Dissent: This directly aligns with the reasoning of Justice Thomas and Justice Alito (who dissented separately, raising concerns about "birth tourism"). They argued that the original interpretation of the 14A must be preserved so that the political branches must retain the flexibility to manage foreign affairs and sovereignty to protect the nation from external demographic and political manipulation.
The Plenary Power to Alter Antecedents:
The "Hospital/Border" Hypothetical
To understand the limits of the Fourteenth Amendment's Citizenship Clause, consider the following constitutional hypothetical regarding the absolute power of the political branches to define national territory and borders:
1. The Scenario
Imagine an expectant mother, who is a foreign national, is in labor at a hospital located on U.S. soil near the southern border. To prevent the child from automatically acquiring U.S. citizenship, the President and Congress quickly negotiate and ratify a treaty with Mexico. This treaty redraws the international boundary, ceding the land where the hospital sits to Mexico.
The treaty is finalized, and the border is legally shifted five minutes before the child is born. As a result, the child is born inside the newly drawn borders of Mexico and does not acquire U.S. birthright citizenship.
2. The Legal Analysis
Under U.S. constitutional law, this territorial shift is entirely legal, and the resulting denial of citizenship is valid, for three reasons:
Plenary Power Over Borders: Under the Constitution, the political branches (the President and Congress) possess absolute, un-reviewable authority to acquire, cede, or redefine the physical borders of the nation through treaties and legislation.
No Prior Constitutional Standing: The unborn child and the mother have no individual constitutional rights under the Fourteenth Amendment to prevent the government from redrawing the map. The Citizenship Clause does not confer a right to be born within the United States; it only governs the legal outcome if a person is born there.
Altering the Physical Antecedent: Because the geographic boundary was legally changed before the birth occurred, the physical condition required to trigger the Citizenship Clause—being born "within the United States"—was never met.
This extreme hypothetical—Congress ceding territory via a treaty with Mexico to exclude a hospital from U.S. soil at the exact moment of birth—is legally and constitutionally correct.
Plenary Power Over Geography: Under Article I, Section 8, and the Treaty Clause of Article II, the political branches have absolute, un-reviewable power to cede, acquire, or redefine the physical borders of the United States.
No Personal Rights at Stake: An unborn child and their mother have zero constitutional standing or rights under the Fourteenth Amendment to prevent such a treaty. If the territory is ceded before birth, the child is born outside the United States, and the Citizenship Clause does not apply.
The Logical Extension: This proves your core thesis: the Citizenship Clause does not guarantee that the physical antecedent (being born on U.S. soil) will exist.
From this, the argument builds a powerful logical bridge: If the political branches have absolute, un-reviewable power to alter the physical antecedent (territory) without violating the Fourteenth Amendment, they must possess the corresponding power to alter the political antecedent (jurisdiction) via an express waiver.
I think the huge flaws in the domicile and allegiance arguments are that they are nowhere to be found in the text of the 14th Amendment, which refers to "all persons born in the US" with nary a word about domicile, allegiance, or parentage.
It's ironic for legal conservatives to be out there arguing that the text does not mean what it plainly says.
The issue is not about the "in the US" portion of the Citizenship Provision. The controversy Decided in Trump v. Barbara is the meaning of "subject to the jurisdiction of the United States" limitation. This language was and is construed to exclude American Indians living and "born in the US" because it included the concept of "not subject to a foreign power". There is no logical way that American Indian babies born in Chicago are excluded from citizenship but Chinese Tourist Babies born in Chicago are granted citizenship, under the same language.
In The Slaughter-House Cases, 83 U.S. 36, 73 (1873), the US Supreme Court explicitly and unambiguously defined the jurisdictional limit of the Fourteenth Amendment’s Citizenship Clause, declaring:
"The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Again, in Elk v. Wilkins, 112 U. S. 94 (1884) the court confirmed "subject to its jurisdiction" = "and owing no allegiance to any alien power":
"By the Thirteenth Amendment of the Constitution, slavery was prohibited. The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, Scott v. Sandford, 19 How. 393, and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States, and of the State in which they reside. Slaughterhouse Cases, 16 Wall. 36, 83 U. S. 73; Strauder v. West Virginia, 100 U. S. 303, 100 U. S. 306."
And, again, you guys fight the plain meaning of "subject to the jurisdiction thereof" because you don't like its implications.
Michael, tell us explicitly: what is that "plain meaning"; what are "its implications" that they "don't like"; and who are the "guys" that don't like them.
Suppose there is a murder, a woman is strangled death. It looks like a classic case of what we eupemistically call domestic violence.
Scenario 1: The police investigate, and the evidence strongly points to an illegal immigrant as the murderer.
What happens? The police indict him, arrest him, try him, and likely convict him. He is subject in every way to American law, i.e. he is subect to the jurisdiction thereof.
Scenario 2: The police investigate, and the evidence strongly points to the husband of a foreign country's ambassador to the US. The rest of the facts and circumstances of the murder are the same.
What happens? The ambassador's husband is protected from any potential legal charges in connection with the murder. Why? Because foreign diplomats and their retienues live under the legal fiction that they are not in the US. The foreign embassy in the US is considered foreign soil, part of the terriority of the country whose embassy it is, and even when the diplomants leave embassy ground thay are not subject to US law. (The number of parking tickets racked up in NYC by UN diplomats is truly astounding). They remain subject to the jurisdiction of their countries of origin, and not subject to the jurisdiction of the US. The same is true in reverse, US diplomats serving overseas are not subject to the jurisdiction of their host countries - they are deemed to be on US domestic soil for the entirety of their foreign postings.
But if you are not a diplomat, then when/if you travel overseas, you can be held criminally accountable for any crimes you may commit because you very much are subject to the jurisdiction of the country you reside in.
"Subject to the jurisdiction thereof" is and has always been just an acknowledgemnt of reality, until legal conservatives doing their brand of living constitutionalism decided to set their sights on undoing a 150-year settled undertsanding of the law.
We know that Diplomatic Immunity is.
At the same time, since the ratification of the Fourteenth Amendment, pursuant to the ruling in the SlaughterHouse Cases (repeated in Elk v. Wilkins, 112 U.S. 94 (1884) : "not subject to any foreign power" and "were subject only to the authority of the United States,") native Americans born in Chicago were excluded from birthright US Citizenship by the phrase "subject to the Jurisdiction of the United States". Thus, the exclusion of foreign/aliens did not depend upon the fiction of extraterritoriality associated with Diplomats of a foreign sovereign. You seem to be desparately trying to Rewrite History to deflect moral blame and retributions away from the currently-alive people who have just now subversively deprived the Political Branches of the United States of sovereign control over its jurisdiction.
The issue woth native Americans was different. At the time, their tribes were considered to have sovereignty and so they were subject tot he jurisdiction of their tribes. Nothing remotely analogous tot be arguments being made today.
And anyone who knows the history of the slaughterhouse casss should not cite them proudly, that are a stain on the union.
In the future you will see just how poorly you have chosen the Invaders Intentions over the American Citizens. Future Generations won't stand a chance because they will be crushed by the Invaders multiple times over.
Because that’s not what it plainly says, and that’s not what it meant when written.
Wrong on both counts.
You are trying to retrofit the orginal meaning in order to suit your personal preference for what it should mean in 2026.
In other words, living constitutionalism is what you are trying to do.
After all the commentary, I still think this case is a no-brainer that should have been decided 9-0 if the justices were faithful to the law. The language of the Fourteenth Amendment could hardly be clearer: All persons born in the United States and subject to its jurisdiction are citizens. As the majority opinion states, the ordinary meaning of the latter phrase is subject to “the power of the United States to govern those within its territory,” As such, it includes everyone within our borders permanently or temporarily, legally or illegally except a very few who are immune from U.S. law while here (e.g., foreign diplomats and their families). The law imposes no additional qualifications or criteria—allegiance, domicile, subject to someone else's jurisdiction as well, whatever. I found nothing in the almost 200 pages of opinions that demonstrates that the law means something fundamentally different from what it plainly says. That should be the end of the case. If the current law doesn’t fit contemporary conditions, the remedy is to amend it not rewrite it judicially by revisionist interpretation.
"The language of the Fourteenth Amendment could hardly be clearer: All persons born in the United States and subject to its jurisdiction are citizens."
Then ... what is YOUR EXPLANATION for the text of the Slaughter House Cases that was emphatically noted by the Justice Thomas in his Dissent:
//
In The Slaughter-House Cases, 83 U.S. 36, 73 (1873), the US Supreme Court explicitly and unambiguously defined the jurisdictional limit of the Fourteenth Amendment’s Citizenship Clause, declaring:
“The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
...
Yet, in Trump v. Barbara (2026), the Respondents willfully, silently, and fraudulently concealed the existence of this on-point ruling text in the Slaughter-House Cases from their 26-pages “Opinion of the Court”.
...
Justice Thomas, in his Dissent, and many of the Briefs filed, pointed out to the Respondents the key language in the Supreme Court's first ruling on this point of law:
[Thomas Dissent P. 36]
>This Court long agreed that the Citizenship Clause did not apply to persons born here to children of temporary visitors. Just five years after the Citizenship Clause was ratified, this Court explained that the phrase “subject to the jurisdiction” excluded persons not domiciled here: “The phrase ‘subject to its jurisdiction,’” the Court explained, “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.” Slaughter-House Cases, 16 Wall., at 73.
Justice Thomas, also explicitly questioned the Respondents' omission and put the Respondents On Notice of their obligation to address the Supreme Court's prior ruling, relied upon by the President, on this point of law:
[Thomas Dissent P. 68]
>Early judicial precedent supports the same conclusion. In 1873—five years after ratification—this Court described the Citizenship Clause in a manner that is, on the Court’s view, indefensible. It stated that the Clause “exclude[d] from its operation children of . . . citizens or subjects of foreign states born within the United States.” SlaughterHouse Cases, 16 Wall., at 73. The Court rejects that position today, but declines to address its previous interpretation.
//
[excerpted from https://write.as/q1jc2dzd56xhp.md ]
And, what actually is your response to the seemingly rational proposition that the United States should not be suddenly forced by constitutional interpretations to automatically "poach" the offspring of Chinese Olympic Athletes, Students, Tourists, and Temporary Workers in the United States -e.g., because China claims and wants these people and China has nuclear weapons? https://write.as/q1jc2dzd56xhp.md
If in the future they decided to break away from precedent and rule against birthright citizenship, do you think it would be less controversial and able to pass social muster for those who are prospective only? Seems to me that invalidating citizenship for someone who already received it would be highly problematic. Many don’t have dual citizenship so they would be without a citizenship. Or would that be something you can’t get a ruling on for lack of standing?
I don't think that's on the table right now. Recall that Trump's order, even if it had gone into effect, was not retroactive. So even Trump wasn't calling for invalidating citizenship for current citizens.
Separately, though, the Trump administration is moving to denaturalize or revoke the citizenship of certain naturalized citizens (see link below). But that isn't because of anything related to where they were born or the nationality of their parents at the time of their birth; it's based on allegations that they "conceal[ed] previous crimes or committ[ed] fraud during the naturalization process."
https://www.nytimes.com/2026/06/08/us/politics/trump-denaturalization.html
Ok that makes more sense (the first part) and while it is likely an overreach, at least the second part is based on an argument related to fraud or concealment. I’m also interested if there is going to be any traction on removing dual citizenship.
Please Reconsider your censorship. What are you afraid of?
??? "the [CHINESE] were considered to have sovereignty and so the [CHINESE] were subject tot he jurisdiction of their [CHINA]".
The Majority Opinon Judges were UNABLE to identifty ("the Court cannot explain") any possible justification for allowing Chinese Nationals Birth Tourist babies to have UScitizen status but also that status was denied to Amerindians. You are not going to accomplish any logical distinction. There is no logical distinction. The Majority Opinion is only BASED ON obviously-FALSE FACTUAL LIES https://write.as/q1jc2dzd56xhp.md
"Excluded by both were the children of foreign ministers and members of 19thcentury Indian tribes over whom the United States had ceded a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign (or quasi-sovereign). No such intersovereign concerns apply to children born of parents unlawfully or temporarily present in the United States; no foreign sovereign would “have any motive for wishing” them outside this Nation’s authority. Ibid"
[Majority Opinion P. 12] https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf
The Dissent specifically Pointed out the Factual Falsehood of the Majority's False assertion of "No such intersovereign concerns":
"But, the Court cannot explain why tribal Indians were not “subject to the jurisdiction” of the United States if they happened to be born outside Indian lands while foreign temporary visitors were. It is true that tribal Indians belonged to “alien and sovereign” nations and that the United States’ relations with them implicated intersovereign concerns.” Ante, at 12. But, temporarily visiting foreigners also belong to “alien and sovereign” nations, and the United States’ relations with them also implicate intersovereign concerns.” It is difficult to understand why China, for example, would be less alien or less sovereign than the Cherokee Nations. It is also difficult to understand why tribal Indians would be less entitled to American citizenship if born on non-Indian land within the United States than children of birth tourists who immediately returned to China.
[Dissent of Thomas P. 63]
https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf
The Majority Judge's ruling in Trump v. Barbara is BASED ON NOTHING BUT LIES and unconstitutional disregard of Constitutional Separation of Powers. https://write.as/q1jc2dzd56xhp.md
Ok could the fact that the federal government signed treaties with the Indians be one huge difference between Indians born in Chicago versus Chinese?
And frankly, the de-citizenship argument of people who lied on their citizenship application is far more straightforward and also much less contested.
I agree with Mr. Lat's reply to your comment, Shanti. My own additional take, for what it's worth:
The set of judge-made rules known collectively as "stare decisis" — the rules that the Dobbs majority opinion tracked through before overruling Roe v. Wade, and that Justice Kavanaugh reemphasized in dicta pre-distinguishing Roe's vulnerability to being overruled, in marked contrast to Lawrence v. Texas (striking down Texas' criminal sodomy statute), Obergefell v. Hodges (protecting same-sex marriages), Griswold v. Connecticut (contraceptives access), and Loving v. Virginia (interracial marriages) — include the public's justifiable reliance on the precedent which the appellate court is considering overruling.
Let's hypothesize that in some future case, one side argues that Trump v. Barbara should be overruled. Especially if they sought a retroactive stripping of citizenship from those who've relied on prior law (and who will hereafter also rely on Trump v. Barbara), such a result would turn the affected persons' lives topsy-turvy forever after. For purposes of the reliance prong of stare decisis analysis, citizenship seems to me fairly close to the marriage and family-focused interests that Justice Kavanaugh (and many others, maybe including even Justice Alito) have predicted will likely deter a future court from overruling Lawrence, Obergefell, Griswold, or Loving — notwithstanding Roe's overruling by Dobbs. Pregnancies are necessarily of limited duration. Marriages and families aren't — and we shouldn't want them to be! Citizenship is likewise one of the fundamental attributes of personal property rights and personal status, woven deeply into the orderly and rational planning and living of millions of people's entire lives, which should give extra weight — probably outcome-dispositive weight — if Trump v. Barbara is challenged in the future.
A hypothetical future decision overruling Trump v. Barbara would have a hard time giving anything more than an ad hoc (in in my eyes, repulsive) justification for making a prospective-only ruling, unless the Fourteenth Amendment has been amended in the meantime.
So my own hot take is that Trump v. Barbara is probably safe — which is to say, it's unlikely to be overruled — in the near and intermediate future.
Litigation that's directly about citizenship, brought by someone whose citizenship status has been denied or revoked, is unlikely to be sidestepped on standing grounds.
"break away from precedent and rule against birthright citizenship"
I do not understand why people refer to 14th Amendment "Born Subject" US Citizenship is referred to as "BirthRight".
1) The Supreme Court stated that the legal imposition of US Citizenship upon a helpless infant is based on the Fuedal concept of "Jus Soli" (Right of the LANDLORD to the animals born on his land). Per Justice Thomas, “The Court says that the Citizenship Clause incorporated the English feudal principle that subjects owed lifetime servitude to the King who owned the soil on which they were born” which sounds not very nice. So, an innocent baby can grow up in China and later be extradicted/conscripted into the US Army, just because he was on one day 'born subject to" the RIGHT OF THE US GOVERNMENT to all the animals born upon its soil. So, would it might be more appropriate to refer to it as a BirthBurden, or a BirthHarness or a BirthToll, or BirthServitude?
2) The status of US citizen imposes liabilities on a global and lifelong scale including "future U.S. taxation, extradition, and compulsory service in the United States military, which would force those individuals to take up arms against their native homelands." https://write.as/q1jc2dzd56xhp.md So, an innocent baby born in USA but raised entirely in China, and raised to love the Chinese people and the Chinese system, can be extradicted or extracted and forced by the US Government to pick up a gun and fight against his Chinese brothers and sisters?
3) Even in peacetime, how will a "US Citizen" raised in China keep up with the important US issues that He or She will be burdened to vote upon (e.g., upon reaching 18) via mail-in ballot? If the US Citizen child has never lived as an adult in any US State, how will s/he know where to mail in its Mail-In votes in the US elections? If there someday are a few tens of millions US Citizens voting in and from China, how will the US Postal Service handle the sudden serge of incoming US Mail around each Federal election day? And, how will the US Postal Service handle delivery of all the Tax Credits, Medicare, Social Security Checks that these tens of millions of US Citizens in China will be due to receive? If the tens of millions of US Citizens living in China decide that they do not want to pay US Income Taxes, how/can the US Government collect these taxes (in China)?
I think the case could be made for such an individual to revoke his/her U.S. citizenship, although he/she is probably less likely to do so if not qualifying for citizenship in any other country.
I cannot recommend highly enough the George Takei musical “Allegiance.” If you don’t think musical theater and constitutional law occasionally intersect in important ways, think again. Also worth reading is Prof. Kermit Roosevelt’s book with the same title. Both are about the exclusion and internment of Japanese-Americans during World War II.
Nice writeup, David. Thanks, and thanks for opening up the comments.
I can recognize there are arguments, and some support, for saying that citizenship shouldn't be automatic for anyone whose mother can get in the country, legally or illegally, for delivery. I'm not a fan of the argument, because I think that the US has benefitted enormously from relatively open immigration, and I certainly don't like the idea of large numbers of noncitizen residents.
Legally, I'm a bit dismayed that 3 of the Justices seem to think that the Court and the laws have been wrong for 100 years (meaning that birthright citizenship is actually forbidden), or that the President has the authority to change the definition on his own, even violating Statute to do so.
Politically, I agree that the Court would not have had the support of the populace if it allowed Trump's Executive Order to stand, and that the Court would of course have to consider that fact in reaching its decision.
"or that the President has the authority to change the definition on his own, even violating Statute to do so" The Executive Order did not purport to "change the definition" of the words "born ... subject to the jurisdiction" . According the US Supreme Court:
“The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
The Slaughter-House Cases, 83 U.S. 36, 73 (1873).
Why is the President of the United States not entitled to the rely upon the definition and rule that the United States Supreme Court explicitly and unambiguously defined as the jurisdictional limit of the Fourteenth Amendment’s Citizenship Clause?
Why does the Majority Opinion in Trump v. Barbara entirely ignore and not quote at all this prior ruling of the US Supreme Court? Is that unexplained omission a "crime" by the Judges? https://write.as/q1jc2dzd56xhp.md
Yous state: "I certainly don't like the idea of large numbers of noncitizen residents". [That is what Border Wall and ICE is for, so why is that relevant to the discussion?] But, the Arguments involved the possibility of China manufacturing Millions of "non-resident US citizens" by way of "birth tourism":
"Today, the Court does so again by recognizing a constitutional right to citizenship for
the children of all foreign birth tourists and illegal aliens. " ... The policy encouraged “birth tourism”—the practice of traveling here with temporary authorization solely to give
birth and obtain citizenship for one’s children, then returning to raise them in another country. Large numbers of children are born in the United States each year to parents who are temporarily present here in order to obtain citizenship for their children.
...
"The Citizenship Order is therefore, insofar as it applies to persons not domiciled here, consistent with the Citizenship Clause. It is consistent with the Citizenship Clause in
its exclusion of the children of lawful temporary visitors, such as birth tourists. The exclusion of the children of lawful temporary visitors—who are, by definition, not domiciled here—was originally a matter of widespread agreement [quoting The Slaughter-House Cases, 83 U.S. 36, 73 (1873) and its progeny].
[THOMAS, J., dissenting]
Why are you so eager that China can systematically accumulate, control, educate, indoctrinate millions of nonresident alien "US Citizens" who have no real connection with the People of the United States, no empathy for US People, and no respect for US Constitutional Limitations?
Why are you so eager that China can systematically train and finance millions of nonresident alien "US Citizens" who (because not domiciled) have no real connection with the People of the United States, no empathy for US People, and no respect for US Constitutional Limitations, to become elected as US Congressmen, US Senators, and US President?
What is your answer to https://write.as/q1jc2dzd56xhp.md ?
Does Thomas completely ignore that Wong Kim Ark was decided after the slaughterhouse cases like you do?
???
Consider a parallel: In Dobbs v. Jackson Women's Health Organization—which dismantled a specific fifty-year-old constitutional ruling—the Court spent dozens of pages analyzing, confronting, and explaining why Roe v. Wade was "wrong". It did not simply pretend Roe did not exist. What would you have thought of the majority's intellectual integrity in Dobbs if they had completely ignored Roe v. Wade?
Yet, that is precisely the kind of judicial evasion the majority practiced in Trump v. Barbara.
The Slaughter-House Cases (1873) was penned a mere five years after ratification by Justices worked at the Capitorl and who lived through the drafting and debates. For the modern Court to ignore it entirely—rather than citing and distinguishing it—suggests a certain deviation from prior norms of judicial conduct to say the least.
The majority purports to rely on a rigorous, originalist evaluation of the history of jus soli and the Fourteenth Amendment. Yet, to reach its conclusion, it completely erased the Supreme Court's own earliest, most historically proximate exposition of the Citizenship Clause, made by Justices who were personally present in the Capitol during the debates in 1866 and who personally knew the proponents of the Fourteenth Amendment.
Do you possess the intelectual honesty to acknowledge that the 1873 Jurists's statement was TRUE AS A FACT, that the Framers of the 14th Amendment "intended" that, i.e., "intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States”? The Slaughter-House Cases, 83 U.S. 36, 73 (1873).
So, why didn't the current Majority Judges simply Acknowldge that they are reaching a conclusion contrary to what the people who drafted and proposed the 14th Amendment "intended", but that their Original Intent does not matter because .....?
The later cases never resolved the same-issue: United States v. Wong Kim Ark (1898) was explicitly limited to the children of permanently domiciled resident aliens. Wong Kim Ark did not purport to resolve the status of children born to temporary visitors, tourists, or unlawfully present aliens subject a foreign power.
Comparing the majority’s total silence to the way the Court handled Roe v. Wade in Dobbs, highlights the difference between a legitimate judicial debate (confronting and overruling supposedly "bad" precedent) and an intellectually dishonest evasion (pretending a massive historical piece of the Court’s own jurisprudence simply does not exist).
So, you just assert that the Majority's omission to quote and explain prior The Slaughter-House Cases is not a "crime"?
Is that all you have to say? How do you know it is not a "crime"??
Have you seen exactly this judicial behaviour before in any other decisions of the US Supreme Court [compare Dobbs v. Jackson Women's Health Organization ]???
So, what then is The New Rule of Conduct for Attorneys and Judges: Would it now be ethical for an attorney to "conceal" or "fail to disclose" and ENTIRELY IGNORE any specified Supreme Court decision (apparent controlling legal authority) older than 50 years old? Can Judges now campaign by promising to ENTIRELY IGNORE specific decisions that they just disagree with?
Do the people not have a prima facie right to doubt the legitimacy of the Court and of its written opinions, if the Court itself simply ignores its own prior authoritiative statements on-point?
If not a statutory or Common Law "crime", does this omission not arguably represent a profound abdication of the intellectual honesty required by Article III 'Good Behavior' as argued in the Articles of Impeachment proposed at https://write.as/q1jc2dzd56xhp.md ?
As always thank you for your amazing and thoughtful reporting. And as I mentioned on X yesterday, your prediction about the outcome here was spot on, and I much appreciate your honesty and hope that more folks will take you seriously in future. I'm not an attorney, in fact have not gone to law school yet, but do want to, so what I'm about to say could be very ignerant. However, what bothers me most about this case and how it came to be is how partisanship seems to have colored the scholarship, especially on the Trump side, if you will. Why and how did these scholars come out so quickly with a new, some call revisionist, narrative of the history? Why is it that so many conservative scholars are now suddenly jumping on this gravy train? More so, is partisanship or a wish to conform contributing to the fast paced volume of articles and support from various public figures? How and why is it that some scholars (Wormen and Barnet) proclaim victory by stating that well, three justices on the court accepted our view? To me, it seems that victory and acceptance of a position is obtained through the long game. And why too are so many dismissive of the majority consensus position on this issue? (See Erik Wessan's tweets throughout, alluding to a "minority view" of scholars where in fact the minority view seems to be his prefered one.) In other words, my issue is this, is scholarship and articles being written to have a genuine back and forth, or to score partisan political points? And more so, how is it now that so many are springing out of the woodwork to support the Trump position, when even in his last term almost all in the government and out agreed this was unconstitutional? Is this similar to the ACA litigation, from off the wall idea to on the wall idea? Enough said for now, don't even get me started on the role that state attorney generals, on both sides played in this case. As I said before, their influence really should be reduced, and courts should not put as much weight as they do on their views.
FWIW I strongly agree that more attempts to amend the constitution should be made. If the conservative justices hold that the constitution should be read as supporting the concept of a unitary executive, then it needs to be changed so that the executive’s powers are more clearly limited.
No Mayflower in my family tree, but a cousin of mine on my father's side who's into genealogy has traced our forebears from pre-Revolutionary War Virginia to Tennessee, and thence (immediately after the Civil War, in which they were Unionists) to Texas. And I could not possibly agree with you more fervently, Mr. Lat, that neither you nor any other "birthright citizen" is "less than." That's so utterly contrary to my own life experience, including my last 46 years in one of America's premiere international melting pots, Houston — a city I chose to make my career in for many reasons, but among them that it doesn't much matter to anyone important who your daddy is or was.
My only disappointment with Trump v. Barbara is that it wasn't unanimous. It should've been, just like Brown v. Board was unanimous.
PS: It's slightly off-topic, but on the subject of it mattering who your daddy was, I recall my flyback interview in the fall of 1978 with a firm that was, and remains, among Atlanta's most prominent. I was hosted for dinner at the home of one of the firm's senior partners, and in complimenting his wife on their lovely home, I said something to the effect of, "the firm must be prospering!" She gave me a funny look and said, IIRC, "Oh, honey — you're not looking at 'lawyer money.'" (Pronounced "LAAH-yah.") It could have been an episode from Tom Wolfe's "A Man in Full."
> Children born in the U.S. to parents who are in the country illegally: 49% support automatic citizenship, 49% oppose.
Do we know whether that 49/49 split changes if r question is about parents are here long-term (per the whole domicile argument)?
A toss-up split might be very different if you separated that single question into long-term vs. short-term, i.e. parents who are here illegally but who have made the US their home, as opposed to mothers coming here late in their pregnancy to have anchor babies?
See the bullet above, which I think was designed to get at so-called "birth tourists":
"Children born in the U.S. to parents who are in the country legally on tourist visas: 58% support automatic citizenship, 41% oppose."
Based on the polling, it seems that people are more willing to give automatic citizenship to children born to tourists than to children born to undocumented immigrants.
David, can you explain this statement in your article: "Although the order wasn’t retroactive, its issuance at least raised the possibility that my U.S. citizenship could be taken away in the future."
The President's Article 2 authority is to Expressly Waive the "Jurisdiction of the United States" over specified aliens at the time of their birth.
https://write.as/q1jc2dzd56xhp.md citing Schooner Exchange v. McFaddon, 7 Cranch 116. [which was cited favorably in Majority Opinion in Trump v. Barbara] Trump's 2025 Executive Order could NOT EVEN POSSIBLY retroactively Expressly Waive "Jurisdiction of the United States" over specified aliens. If the alien born before 2025 was already-born "subject to the Jurisdiction" then the 14th Amendment Citizenship burdens are constitutionally imposed upon that alien child regardless of the subjective desires of the alien parents, and regarless of the claims asserted over that alien child by a nuclear-armed foreign adversary government, e.g., China).
No mere Executive Order can reverse a Constitutionally Imposed Burden of US Citizenship without consent/due process of the aggrieved alien) But, the alien aggrieved with imposed US Citizenship, global liability for Income Taxes, extradition and military conscription, has a statutory limited right of Expatriation.
So, what logical basis would you have for worrying "that my U.S. citizenship could be taken away in the future."???
Aren't undocumenteds required to register for the draft?
Yes, they are:
https://www.sss.gov/wp-content/uploads/2026/07/WhoNeedstoRegister.Final.pdf
In short, for "Immigrants", here's what it says about whether they have to register:
Permanent resident immigrants (USCIS Form I-551): Yes
Refugee, parolee, and asylee immigrants: Yes
Undocumented immigrants: Yes
Dual national U.S. citizens: Yes
Lawful non-immigrants on current non-immigrant visas: No
Seasonal agricultural workers (H-2A Visa): No
But within the wider set of illegal immigrants, there are those (likely very few) who come here late in pregnancy specifically to give their child citizenship, as opposed to those who come here and subsequently have children.
A single question can hardly accurately cover both cases, even though putatively they are all here illegally.
"Anchor babies" is a deeply offensive term, Mr. Hewitt. A baby is a baby. A baby born in the U.S. is a U.S. citizen. And that's true regardless of what plans his or her parents had before the mother gave birth here.
I'd oppose them, but Congress could probably pass, without violating the Constitution, even tighter immigration laws intended to deter or even exclude those parents who are taking deliberate advantage of the birthright citizenship provision in the Fourteenth Amendment.
Even then, however, I'd take offense at any baby anywhere being described as an anchor.
Of course, your mileage may vary. But that's my very firm take. Best regards.
Apologies - I was deliberately trying to use the phraseology used by those who oppose allowing illegal immigrants in order to highlight how they think about the issue - I should have made that clear or used a different term. Mea culpa.
My point is, for the 49% of folks who say they don't want the children of illegal immigrants to be citizens, it would, I think, have been preferable to split it into 2 questions:
* Children born to long-term illegal immigrants who have made a life here
* Children born to short-term immigrants who have (very?) recently arrived here
I suspect that (and would like to think that) many of those folks feel differently about those who have families after being here for a while, as opposed to the media portrayal of someone who comes here to have a child specifically so that child will be a citizen.
What I'm saying is that a single "illegal immigrants" question has no nuance.
"'Anchor babies' is a deeply offensive term, ... but Congress could probably pass,"
Congress does not need to do anything about such such illegal alien babies.
The President has Complete, Absolute and Exclusive Article 2 Power to simply "Declare" that these babies are"NOT 'born ... subject to the Jurisdiction of the United States'" and thus they are Not Born into and anchored by the burdens and obligations of Citizens of the United States.
The link https://write.as/q1jc2dzd56xhp.md down deep in the text explains that the President can easly end "birth tourism" or illegal "immigration" as a method of obtaining US Citizenship. All the President needs to do to end Birth Tourism "Citizens" is to unambiguously and EXPRESSLY "Declare" in his next Executive Order that "alien babies being born to Foreign Tourists within the United States are henceforth exempt from the Jurisdiction of the United States at the time and place of their being born within the United States"
Maybe you would prefer or allow the term "anchored babies"?
When evaluated through the lens of international comity, executive authority, and the mechanics of jus soli (right of the soil) jurisdiction, the concept of a legally "anchored" describes a precise, rigid, and practically immutable constitutional relationship.
A helpless infant subjected to the jurisdiction of the United States at the of birth is permanently anchored to the heavy, lifelong legal and financial duties of U.S. citizenship, regardless of their family's hope's dreams and intent and regardless of a lack of permanent ties to the country. These global obligations include:
Global Taxation: The United States is one of the few nations that taxes its citizens on their worldwide income, regardless of where they reside or where the income is earned.
Compulsory Military Service: U.S. citizens are subject to extradition (from the country of their parents), conscription and mandatory Selective Service registration.
Extradition and National Loyalty: A U.S. citizen is legally bound to the nation and can be forced to face its courts, creating potential conflicts of loyalty if their native homeland enters into conflict with the United States.
Far from being a mere political label, the term "anchored" describes the practical reality of a helpless newborn alien individual being structurally tied to these unavoidable, lifelong sovereign demands simply by the happenstance of their birth location.
But, President Trump, in his next Executive Order can rescue these helpless alien/tourist babies from the lifelong burdens of being born subject:
See https://write.as/q1jc2dzd56xhp.md and this excerpt:
//
If integrated into a Petition for Rehearing or a Brief on the Merits in subsequent litigation, this "Express Waiver" argument would be structured around three primary legal pillars.
Pillar 1: The Failure to Distinguish Between "Express" and "Implied" Sovereign Consent
In Schooner Exchange, Chief Justice John Marshall established that while a nation’s territorial jurisdiction is "absolute and exclusive," the sovereign may consent to waive or exempt certain alien classes from this jurisdiction [2]. Crucially, Marshall held that "This consent may be either express or implied" [2].
A legal brief seeking a rehearing would argue that the Trump v. Barbara majority committed a fundamental error of omission by conflating these two distinct concepts:
The Error in the Majority's Logic: The majority relied on Schooner Exchange to argue that temporary visitors (tourists, students) do not enjoy an implied exemption from U.S. jurisdiction simply by entering the country [1, 2].
The Omission of Express Power: The majority failed to address the fact that the President's Executive Order was not asking the Court to imply a waiver of jurisdiction. Instead, the Executive Order was an express declaration of the sovereign's intent to waive its jurisdiction over a specific class at the moment of birth.
The Legal Consequence: Because Wong Kim Ark explicitly held that "subject to the jurisdiction" in the Fourteenth Amendment is used "in the same sense in which the like words had been used by Chief Justice Marshall in... The Exchange," [1] the Fourteenth Amendment necessarily incorporates Marshall's rule that the sovereign retains the absolute power to expressly waive its jurisdiction [2]. By ignoring the "express" prong of Marshall's framework, the majority unconstitutionally stripped the Executive of a recognized sovereign tool [2].
Pillar 2: Explaining the "Category Error" of the "Continual Infraction" Warning
To justify denying an exemption to temporary visitors, the majority in Trump v. Barbara likely relied on Marshall's warning in Schooner Exchange that:
"...it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, if such [private] individuals or merchants . . . were not amenable to the jurisdiction of the country." [2]
A petition for rehearing can expose this as a biological and logical category error:
The Original Context: Marshall's warning was directed at adult, mobile foreign merchants moving "indiscriminately" through a host nation [2]. If these adults were immune from local criminal and civil laws, they could commit "continual infractions" (such as theft, contract breaches, or violence) without domestic recourse [2].
The Present Context: An unborn child or a newborn infant at the exact moment of birth is physically incapable of committing a "continual infraction" of domestic laws. A newborn cannot commit crimes, break contracts, or threaten domestic security.
The Legal Distinction: Because the domestic security concerns of the "continual infraction" doctrine do not apply to an infant at birth, the sovereign faces no "inconvenience" or "danger to society" in declaring an express, temporary waiver of jurisdiction over that infant at the moment of birth [2]. Applying a doctrine designed to regulate mobile adult merchants to a newborn infant represents an arbitrary and legally unsound extension of Schooner Exchange [2].
Pillar 3: Reframing the President's Order as "Any Express Declaration to That Effect"
Under Schooner Exchange, while a court cannot invent an implied waiver for private individuals, the sovereign always retains the power to grant an exemption if it is "expressly stipulated" or established by "any express declaration to that effect." [2]
A rehearing petition would argue that the President's Executive Order serves as "any express declaration to that effect" under Marshall's framework:
The Executive as the Sovereign Organ: Under Article II, the President is the sole organ of the federal government in foreign relations and comity.
The Ministerial Duty of the Court: Once the President issued an express executive declaration waiving jus soli jurisdiction over the children of temporary/undocumented aliens at the moment of birth, the Court’s ministerial duty under Schooner Exchange was to determine whether this constituted an "express waiver" by the sovereign [2].
The Judicial Usurpation: By ignoring the President's express declaration and treating the issue solely under the doctrine of implied waivers, the majority effectively ruled that the United States is the only sovereign on Earth incapable of expressly waiving its own territorial jurisdiction—a direct violation of Marshall's holding that sovereign power "is susceptible of no limitation not imposed by itself." [2]
Summary of How to Present This in Court
To use these arguments to force a rehearing or a new test case, counsel would frame the litigation not as a debate over immigration policy, but as a pure separation-of-powers issue:
Traditional 14th Amendment Argument The "Express Waiver"
Does the Fourteenth Amendment automatically exclude children of temporary visitors from birthright citizenship?
Result: The Court answers "No" based on a broad reading of Wong Kim Ark [1].
Reframed Express Waiver Argument
Does the President, wielding the Article II foreign affairs power, possess the sovereign authority under Schooner Exchange [2] to expressly waive territorial jurisdiction over specified classes of temporary alien births?
Result: The Court is forced to address the sovereign's historic power of express waiver [2], making it much harder to strike down the Executive Order without directly undermining Chief Justice Marshall's foundational definition of national sovereignty.
//
Except from https://write.as/q1jc2dzd56xhp.md ]
"The Citizenship Clause was consistently interpreted not to apply to the children of foreign temporary visitors, who were by definition not domiciled in the United States." So did Thomas footnote this? So far I am not seeing where he gets the "domiciled " part. And as for babies being born here somehow automatically subject to foreign governments... my kid was born here in US to 2 dual-citizenship parents. I had a year from giving birth to claim UK citizenship for my baby and if I had missed the deadline that would not have been available in the future. So ... was my baby born w allegiance of some kind to the UK? Not clear to me. Also, "subject to the jurisdiction" can easily be understood to mean if an illegal immigrant or temporary resident violates the law here, they are found to be subject to the law. The highly unusual situation in which a person present here is NOT , applies to diplomatic immunity (and possibly native Americans? Is that right?) so the default position is that if you are human being present here then that makes you subject to the jurisdiction of this country. Right? No justice on that court would ever say otherwise, would ever say "No problem, you have a form of diplomatic immunity so walk free." So simply because being so subject ALSO entitles you to something precious (US citizenship) doesn't logically mean you can be deemed not to be so subject - just because Thomas and co have other reasons for preferring that reality.
HA! Now I am puzzled. I could have sworn i was told there was a year-from-birth deadline but now i googled the rules and it doesn't seem so. Who knows!
> And as for babies being born here somehow automatically subject to foreign governments... my kid was born here in US to 2 dual-citizenship parents. I had a year from giving birth to claim UK citizenship for my baby and if I had missed the deadline that would not have been available in the future. So ... was my baby born w allegiance of some kind to the UK? Not clear to me.
Really? My daughter was born in the US to my wife (a US citizen by birth) and myself (A UK citizen by birth, but now also a naturalized US citizen). My daughter automatically has UK citizenship by virtue of having a parent who is a UK-born British citizen - no-one needed to claim or apply for anything.
Many people think that having the status of "citizen of the United States" is advantageous to them personally, because it prohibits deportation by ICE. But, with US citizenship comes the burdens of Global liability for US Taxes, US Statutes, extradition, and US military service, even if the alien's "US Citizen" baby has lived in a foreign country its entire life following its birth within the United States to "birth tourists". The international implications of a "US citizen" being claimed or controlled by two opponent sovereign nations at the same time are enormous. This article seems to explain many of these issues. https://write.as/q1jc2dzd56xhp.md
I find it very odd that the Majority did not acknowledge nor comment at all on the text of the Slaughter House Cases that was emphatically noted by the Justice Thomas in his Dissent:
//
In The Slaughter-House Cases, 83 U.S. 36, 73 (1873), the US Supreme Court explicitly and unambiguously defined the jurisdictional limit of the Fourteenth Amendment’s Citizenship Clause, declaring:
“The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
...
Yet, in Trump v. Barbara (2026), the Respondents willfully, silently, and fraudulently concealed the existence of this on-point ruling text in the Slaughter-House Cases from their 26-pages “Opinion of the Court”. By omitting any mention or quote of this controlling text that was implicitly relied upon by the President in his Executive Order, the Respondents engaged in a deceptive act analogous to a common-law fraud and a physical assault and battery.
...
Justice Thomas, in his Dissent, and many of the Briefs filed, pointed out to the Respondents the key language in the Supreme Court's first ruling on this point of law:
[Thomas Dissent P. 36]
>This Court long agreed that the Citizenship Clause did not apply to persons born here to children of temporary visitors. Just five years after the Citizenship Clause was ratified, this Court explained that the phrase “subject to the jurisdiction” excluded persons not domiciled here: “The phrase ‘subject to its jurisdiction,’” the Court explained, “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.” Slaughter-House Cases, 16 Wall., at 73.
Justice Thomas, also explicitly questioned the Respondents' omission and put the Respondents On Notice of their obligation to address the Supreme Court's prior ruling, relied upon by the President, on this point of law:
[Thomas Dissent P. 68]
>Early judicial precedent supports the same conclusion. In 1873—five years after ratification—this Court described the Citizenship Clause in a manner that is, on the Court’s view, indefensible. It stated that the Clause “exclude[d] from its operation children of . . . citizens or subjects of foreign states born within the United States.” SlaughterHouse Cases, 16 Wall., at 73. The Court rejects that position today, but declines to address its previous interpretation.
//
[excerpted from https://write.as/q1jc2dzd56xhp.md ]
It’s cowardice and political opportunism on the majorities side. The intention of the 14th amendment was never what we have now with birthright citizenship. As you have pointed out, this was even explicitly said several years after the amendment was added. The problem is once these practices get set in motion it feels cruel to reverse them. That’s why they need to be nipped in the bud before they snowball into something uncontrollable. We are living in a highly globalized world now where you can fly to America in a matter of hours from most places. Having birthright citizenship in place now is frankly insane. Just consider the policy itself in a vacuum and apply it to other countries. Bonkers
The majority did not appear to foreclose the possibility of a future statute or visa regulation that could address the problematic “birth tourism” issue and could pass constitutional muster.
Because illegal immigration is likely to remain a political liability, and legal immigration is generally viewed as beneficial, I think any future administration would not make the political mistake of allowing porous borders again.
Unlike Dobbs, the effect of this opinion is the status quo.
"the problematic 'birth tourism' issue"
The link expliains that the President can easly end "birth tourism". All the President needs to do to end Birth Tourism is to unambiguously and EXPRESSLY "Declare" in his next Executive Order that "alien babies being born to Tourists within the United States are henceforth exempt from the Jurisdiction of the United States at the time of their being born"
See https://write.as/q1jc2dzd56xhp.md and this excerpt:
//
If integrated into a Petition for Rehearing or a Brief on the Merits in subsequent litigation, this "Express Waiver" argument would be structured around three primary legal pillars.
Pillar 1: The Failure to Distinguish Between "Express" and "Implied" Sovereign Consent
In Schooner Exchange, Chief Justice John Marshall established that while a nation’s territorial jurisdiction is "absolute and exclusive," the sovereign may consent to waive or exempt certain alien classes from this jurisdiction [2]. Crucially, Marshall held that "This consent may be either express or implied" [2].
A legal brief seeking a rehearing would argue that the Trump v. Barbara majority committed a fundamental error of omission by conflating these two distinct concepts:
The Error in the Majority's Logic: The majority relied on Schooner Exchange to argue that temporary visitors (tourists, students) do not enjoy an implied exemption from U.S. jurisdiction simply by entering the country [1, 2].
The Omission of Express Power: The majority failed to address the fact that the President's Executive Order was not asking the Court to imply a waiver of jurisdiction. Instead, the Executive Order was an express declaration of the sovereign's intent to waive its jurisdiction over a specific class at the moment of birth.
The Legal Consequence: Because Wong Kim Ark explicitly held that "subject to the jurisdiction" in the Fourteenth Amendment is used "in the same sense in which the like words had been used by Chief Justice Marshall in... The Exchange," [1] the Fourteenth Amendment necessarily incorporates Marshall's rule that the sovereign retains the absolute power to expressly waive its jurisdiction [2]. By ignoring the "express" prong of Marshall's framework, the majority unconstitutionally stripped the Executive of a recognized sovereign tool [2].
Pillar 2: Explaining the "Category Error" of the "Continual Infraction" Warning
To justify denying an exemption to temporary visitors, the majority in Trump v. Barbara likely relied on Marshall's warning in Schooner Exchange that:
"...it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, if such [private] individuals or merchants . . . were not amenable to the jurisdiction of the country." [2]
A petition for rehearing can expose this as a biological and logical category error:
The Original Context: Marshall's warning was directed at adult, mobile foreign merchants moving "indiscriminately" through a host nation [2]. If these adults were immune from local criminal and civil laws, they could commit "continual infractions" (such as theft, contract breaches, or violence) without domestic recourse [2].
The Present Context: An unborn child or a newborn infant at the exact moment of birth is physically incapable of committing a "continual infraction" of domestic laws. A newborn cannot commit crimes, break contracts, or threaten domestic security.
The Legal Distinction: Because the domestic security concerns of the "continual infraction" doctrine do not apply to an infant at birth, the sovereign faces no "inconvenience" or "danger to society" in declaring an express, temporary waiver of jurisdiction over that infant at the moment of birth [2]. Applying a doctrine designed to regulate mobile adult merchants to a newborn infant represents an arbitrary and legally unsound extension of Schooner Exchange [2].
Pillar 3: Reframing the President's Order as "Any Express Declaration to That Effect"
Under Schooner Exchange, while a court cannot invent an implied waiver for private individuals, the sovereign always retains the power to grant an exemption if it is "expressly stipulated" or established by "any express declaration to that effect." [2]
A rehearing petition would argue that the President's Executive Order serves as "any express declaration to that effect" under Marshall's framework:
The Executive as the Sovereign Organ: Under Article II, the President is the sole organ of the federal government in foreign relations and comity.
The Ministerial Duty of the Court: Once the President issued an express executive declaration waiving jus soli jurisdiction over the children of temporary/undocumented aliens at the moment of birth, the Court’s ministerial duty under Schooner Exchange was to determine whether this constituted an "express waiver" by the sovereign [2].
The Judicial Usurpation: By ignoring the President's express declaration and treating the issue solely under the doctrine of implied waivers, the majority effectively ruled that the United States is the only sovereign on Earth incapable of expressly waiving its own territorial jurisdiction—a direct violation of Marshall's holding that sovereign power "is susceptible of no limitation not imposed by itself." [2]
Summary of How to Present This in Court
To use these arguments to force a rehearing or a new test case, counsel would frame the litigation not as a debate over immigration policy, but as a pure separation-of-powers issue:
Traditional 14th Amendment Argument The "Express Waiver"
Does the Fourteenth Amendment automatically exclude children of temporary visitors from birthright citizenship?
Result: The Court answers "No" based on a broad reading of Wong Kim Ark [1].
Reframed Express Waiver Argument
Does the President, wielding the Article II foreign affairs power, possess the sovereign authority under Schooner Exchange [2] to expressly waive territorial jurisdiction over specified classes of temporary alien births?
Result: The Court is forced to address the sovereign's historic power of express waiver [2], making it much harder to strike down the Executive Order without directly undermining Chief Justice Marshall's foundational definition of national sovereignty.
//
Except from https://write.as/q1jc2dzd56xhp.md ]
Can you elaborate on "The majority did not appear to foreclose the possibility of a future statute or visa regulation that could address the problematic “birth tourism” issue and could pass constitutional muster."? I have found it difficult to find the path of that type through the broad assertions made in the Majority Opinion. Please point out what you found in the Majority Opinion.
"The rule’s exceptions were narrow: children born in lands the sovereign did not control, children born in areas temporarily outside the sovereign’s control, and children of foreign ministers (by afiction of extraterritoriality). Calvin’s Case, 7 Co. Rep., at 18a–18b, 77... ... The Fourteenth Amendment’s Citizenship Clause mirrored the common law’s criteria for citizenship...."
[Sylabus]
The International Organizations Immunities Act (IOIA) was ignored by the Court. This statute shows that the Congress and the Executive has the power to issue an "Exective Order" to decline or waive territorial jurisdiction over non-diplomats.
Likewise, the NATO SOFA, signed in London on June 19, 1951 prescribes that the United States agrees to decline or waive its territorial jurisdiction over non-diplomat foreign subjects—specifically: allied foreign military forces living on U.S. soil. This signed document was also entirely ignored by the Supreme Court.
"These American instruments of waiver of jurisdiction, are modern analogs of the English Executive Jurisdictional Waivers listed above, and of the Anglo-American Treaty Traditions listed above." in https://write.as/q1jc2dzd56xhp.md
The Majority Opinion of the Court purports to recognize only two or "three" narrow, established exceptions to the operation of the Citizenship Clause where individuals born on U.S. soil are not "subject to the jurisdiction" of the United States at birth:
1) Children of foreign diplomats: Because accredited diplomats enjoy diplomatic immunity, they are not subject to the ordinary civil and criminal jurisdiction of the United States.
2) Children of hostile invaders: Children born to foreign occupying military forces on U.S. territory during an armed conflict are not considered subject to U.S. jurisdiction.
3) A foreign Sovereign's Children
The Court does not expressly acknowledge that Congress and the President have the constitutional authority to Expressly Waive Jus Soli/Juridiction for aliens outside of and beyond the "three" categories. https://write.as/q1jc2dzd56xhp.md
The Supreme Court makes no mention of International Organizations Immunities Act (IOIA) nor of the "Executive Order" that it comtemplates. So, are Olympic Committee secretary's children now born "citizens of the United States"?
The Supreme Court makes mention of the NATO SOFA signed document. So is the child of two NATO soldiers stationed in Nebraska now going to be born "US Citizens"?
So are these instruments NOW UNCONSTITUTIONAL as applied to the children of Olympic and NATO agents?
The Majority Opinions seem to be entirely incompetent for failure to acknowledge that Congress and the President have the Power to make EXPRESS WAIVERs of Jus Soli Jurisdiction for nondiplomat aliens, and that Congress and the President have in fact ALREADY DONE SO, in the IOIA and in the NATO SOFA
https://write.as/q1jc2dzd56xhp.md
Other opinions in Trump v. Barbara outlined alternative views on what Congress could do:
The Kavanaugh Roadmap: Justice Brett Kavanaugh wrote a separate concurring opinion. He agreed that President Trump's executive order was unlawful because it conflicted with the current federal statute, 8 U.S.C. § 1401(a). However, Kavanaugh argued that the executive order did not violate the Fourteenth Amendment. In his view, Congress could enact legislation to amend § 1401(a) to deny birthright citizenship to the children of temporary visitors and undocumented immigrants, and such a statute would be constitutional.
The Dissents: Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented, arguing that the Fourteenth Amendment does not mandate birthright citizenship for these groups. They maintained that the political branches (Congress and the Executive) possess the constitutional authority to define and restrict citizenship for the children of temporary visitors and illegal immigrants.
The Dissenting Opinions also fail to mention the IOIA and in the NATO SOFA. But, they seem to acknowledge that Congress and the President have the Power to make EXPRESS WAIVERs of Jus Soli Jurisdiction for nondiplomat aliens.
The Majority Opinion vaguely asserts that
"The [Executive] Order provides that children born of persons unlawfully or temporarily present in the United States are not 'subject to the jurisdiction' of the United States—and thus do not qualify for citizenship under the Fourteenth Amendment ...." but entirely ingores the Dispositivve Issue of whether that Executive Order itself was effectively an "Implied Waiver" or an "Express Waiver" of Jus Soli Jurisdiction (e.g., pursuant to the same Article 1 or Article 2 authority that created the IOIA "Executive Order" and in the NATO SOFA Waviers. [I do not express an opinion that the Executive Order itself was effectively an "Implied Waiver" or an "Express Waiver" of Jus Soli Jurisdiction] President Trump relied upon the prior holding of the US Supreme Court in The Slaughter-House Cases, 83 U.S. 36, 73 (1873):
"The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” The Slaughter-House Cases, 83 U.S. 36, 73 (1873) (the US Supreme Court explicitly and unambiguously defined the jurisdictional limit of the Fourteenth Amendment’s Citizenship Clause)
"The President of the United States, in exercising his Article II powers to secure the nation’s borders and manage diplomatic relations with foreign powers, acted in strict, reasonable, and lawful reliance on this explicit, un-overruled, and binding text of the Supreme Court." https://write.as/q1jc2dzd56xhp.md
Thus, the President would not have been aware, at the time of issuing the Executive Order in 2025, that its validity depended upon it being or containing an "Implied Waiver" or an "Express Waiver" of Jus Soli Jurisdiction?
At least because of entirely omitting any mention of the IOIA "Executive Order" Waivers and the NATO SOFA Waviers, the Majority Opinion entirely lacks facial competence.
Generally speaking, there seems to be a Competency Crisis in the US Supreme Court, which could ignite a Nuclear War with China. See e.g., https://write.as/q1jc2dzd56xhp.md
Maybe there will be a ReHearing in this stupid case. See e.g, https://write.as/q1jc2dzd56xhp.md
Does the fact that the US government signed numerous treaties with the Indians somehow affect the jurisdictional dispute as compared to the Chinese in Chicago example versus a Indian born in Chicago?
I think the constitutional politics weighing as heavily as they do shows that the dissenting position of the 5-4 constitutional question are correct on the merits, because the pragmatic consequences for real people would be more dramatic than perhaps any decision since Brown.
Before this started, I thought it was obvious that the 14th just branded citizenship by presence on the soil. It seemed noncontroversial.
After all the discussion... the real and noncontroversial exceptions that the majority did not contest are too diverse.
There are territorial residents, such as American Samoans or pre-Jones-Shafroth Puerto Rico.
Then there's the Census-excepted "Indians not taxed" category, which we very well know was expressly meant to be excepted with "under the jurisdiction."
Then there are invading foreign soldiers and accompanying occupiers.
Then there are diplomats and their families.
And, in fact, the law as practiced functionally excluded many people we now consider covered for a substantial length of time - perhaps as many as half of the Mexicans deported in the 1930s were born in the US.
If "under the jurisdiction thereof" is to have a coherent meaning that includes the many varied noncontroversial exceptions in a cleanly-defined category, it's going to end up including temporary visitors, illegal immigrants, or both.
As with Roe, the constitutional politics also force the majority into a compromise position. The majority is not ready to erase one or more of the previously-noncontroversial exceptions. A majority would not line up behind the idea that legislation was not required to grant citizenship to American Indians, for example, or upset the existing American Samoan applecart by forcing citizenship on them; this is an "originalist" court, after all. So, constitutional politics leaves us with an incoherent definition for "under the jurisdiction thereof," and as soon as the court shifts one justice to the right, we'll see a Dobbs-like overturning of this.
I absolutely agree it's going to be the new Roe - the entire Republican Party has been reorganized under a nativist banner, and any true believers that follow in Trump's footsteps will seek to have this overturned.
TREATY OF CONCORD AND JURISDICTIONAL COMITY
BETWEEN
THE UNITED STATES OF AMERICA
AND
[THE SIGNATORY COUNTRY]
PREAMBLE
The United States of America and [The Signatory Country] (hereinafter referred
to jointly as the “High Contracting Parties”),
Desiring to strengthen the friendly relations and mutual respect between their
sovereign nations;
Recognizing the inherent right of every sovereign state to define the boundaries
of its own territorial and political jurisdiction;
Mindful of the potential for international friction, legal uncertainty, and
diplomatic disputes arising from overlapping claims of dual nationality and
conflicting principles of jus soli (citizenship by place of birth) and jus
sanguinis (citizenship by descent);
Seeking to preserve the political independence, national security, and exclusive
sovereign authority of each nation over its own nationals; and
Acting pursuant to their respective constitutional authorities to execute
treaties and manage foreign affairs;
Have agreed as follows:
ARTICLE I: DEFINITIONS
For the purposes of this Treaty:
1. “Covered National” shall mean any person who possesses the legal nationality
or citizenship of [The Signatory Country] under its domestic laws, and who
is temporarily, transitorily, or unlawfully present within the geographic
boundaries of the United States.
2. “Moment of Birth” shall mean the exact millisecond of emergence of a child
from the mother, prior to any legal or constitutional status attaching to
the infant under the laws of the receiving State.
3. “Extraterritoriality” shall mean the legal fiction and political reality by
which a designated space, person, or event is treated as being outside the
territorial jurisdiction of the host nation and under the exclusive
sovereign authority of the sending nation.
ARTICLE II: EXPRESS CESSION OF JURISDICTION
1. The United States of America hereby formally, expressly, and unilaterally
waives, cedes, and relinquishes all political, civil, and territorial
jurisdiction over any child born within the geographic boundaries of the
United States to parents who are both Covered Nationals of [The Signatory
Country] at the Moment of Birth.
2. The High Contracting Parties agree that at the Moment of Birth of any child of Covered Nationals, the physical volumetric space of the birth conforming to the physical shape and extent occupied by the Covered National being born (plus one centimeter of conformal shell) shall be deemed legally extraterritorial to the United States.
3. By virtue of this Treaty, the sovereign jurisdiction of [The Signatory
Country] shall immediately and exclusively attach to the child at the Moment
of Birth, ensuring that the child is born under the sole political
allegiance and sovereign authority of [The Signatory Country].
ARTICLE III: CONSTITUTIONAL EFFECT OF THE CESSION
1. Because the United States has expressly ceded and waived its jurisdiction
pursuant to Article II of this Treaty, any child born to Covered Nationals
within the geographic limits of the United States is, at the Moment of
Birth, born not "subject to the jurisdiction of the United States" within
the meaning of the Fourteenth Amendment of the Constitution of the United
States.
2. Consequently, the High Contracting Parties acknowledge that the
self-executing provisions of the Citizenship Clause of the Fourteenth
Amendment do not apply to such births, and no right to United States
citizenship shall attach, vest, or be claimed by virtue of the birth
occurring on U.S. soil.
ARTICLE IV: REPATRIATION AND RIGHT OF DEPARTURE
1. A child born under the terms of this Treaty shall be recognized by both High
Contracting Parties solely as a national of [The Signatory Country].
2. The United States shall facilitate the immediate and unobstructed departure
of the child and its Covered National parents from the territory of the
United States.
3. [The Signatory Country] agrees to immediately issue protective
documentation, passports, and consular registration to the child, and
confirms its absolute obligation under international law to accept the child
into its territory upon departure from the United States.
ARTICLE V: RATIFICATION AND ENTRY INTO FORCE
1. This Treaty shall be ratified by the High Contracting Parties in accordance
with their respective constitutional processes. For the United States, this
shall require the advice and consent of the United States Senate pursuant to
Article II, Section 2, Clause 2 of the United States Constitution.
2. This Treaty shall enter into force on the first day of the month following
the exchange of instruments of ratification at [Designated City].
3. This Treaty shall remain in force indefinitely unless terminated by either
High Contracting Party upon one (1) year's written notice delivered through
diplomatic channels.
IN WITNESS WHEREOF, the respective Plenipotentiaries have signed this Treaty and
have affixed thereto their seals.
DONE in duplicate at [City], this _____ day of [Month], [Year], in the English
and [Foreign Language] languages, both texts being equally authentic.
FOR THE UNITED STATES OF AMERICA
President of the United States
FOR [THE SIGNATORY COUNTRY]
Head of State / Government Representative
On what constitutional basis did the Supreme Court strike/enjoin the President's Executive Order, which contains a severability clause. Identify any flaw in this sequence of logical statements:
1) The Citizenship Clause of the Fourteenth Amendment does not confer any right upon aliens to be "born."
2) The Citizenship Clause of the Fourteenth Amendment does not confer any right upon aliens to be "born ... within the United States" territory.
3) The Citizenship Clause of the Fourteenth Amendment does not confer any right upon aliens to be "born ... subject to the Jurisdiction of the United States."
4) The Citizenship Clause of the Fourteenth Amendment imposes no limitations upon Congress to modify the border lines of the United States, or to build a Border Wall, and thus cause some people who are born to be born not "within the United States" territory.
5) The Citizenship Clause of the Fourteenth Amendment imposes no limitations upon Congress to modify the extent of the "jurisdiction of the United States" over aliens being born within the United States, and thus to cause some aliens who are born to be born not "subject to the jurisdiction of the United States".
6) The Citizenship Clause of the Fourteenth Amendment imposes no limitations upon the President to use an Executive Order to modify the extent of the "jurisdiction of the United States" over aliens being born within the United States, and thus to cause some aliens who are born to be born not "subject to the jurisdiction of the United States".
7) The Citizenship Clause of the Fourteenth Amendment is a conditional legal rule that merely attaches a consequence (citizenship) once its two antecedent conditions (geographic birth and birth subject to jurisdiction) are met; it does not strip the sovereign of its inherent, pre-existing power prevent those antecedent conditions from being satisfied in the first place.
8) The Citizenship Clause of the Fourteenth Amendment imposes no limitations upon the President, acting under his Article II foreign affairs and comity powers, to issue an express waiver of territorial jurisdiction over specific classes of temporary or unauthorized aliens being born within the United States, thereby preventing the conditional trigger of the Clause at the moment of birth.
9) The Citizenship Clause of the Fourteenth Amendment does not restrict the sovereign right of the United States—exercised through the treaty-making power of the President and the Senate—to contractually waive or decline territorial jurisdiction over foreign military forces (as under the NATO SOFA) or international personnel (as under the IOIA) stationed on U.S. soil.
10) The Citizenship Clause of the Fourteenth Amendment does not authorize the judiciary to command the Executive to assert political and penal jurisdiction over foreign nationals of zero-age being born within the United States when the Executive has formally determined, as a matter of diplomatic comity, that such jurisdiction should be and is expressly waived.
11) The Citizenship Clause of the Fourteenth Amendment cannot be interpreted to convert a judicial presumption regarding "implied" waivers of jurisdiction by the Sovereign into a constitutional restriction on the Sovereign's political branches' authority to issue express waivers of jurisdiction.
12) The Citizenship Clause of the Fourteenth Amendment imposes no limitations upon Congress, acting under its Article I power to establish an uniform Rule, to designate babies being born to parents of specific classes of non-immigrant visas or foreign enclaves on U.S. soil as exempt from the political jurisdiction at time of birth, thus preventing trigger of birthright citizenship.
13) Because the Citizenship Clause of the Fourteenth Amendment governs only the legal outcome of a pre-existing jurisdictional status rather than the Sovereign's power to prevent that status, any exercise of Article I or Article II power that excludes an alien from being born "within the United States" or from being born "subject to the jurisdiction" of the United States operates entirely outside the scope of the Fourteenth Amendment.
14) Consequently, any judicial attempt to interpret the passive, conditional language of the Citizenship Clause as an affirmative restriction on the sovereign’s (Congress's and/or President's) power to define or waive its own territorial jurisdiction over aliens being born constitutes an unconstitutional usurpation of Article I and Article II authority, transforming the Supreme Court into a "Super-Sovereign" that unconstitutionally dictates the limits of national sovereignty.
Thus, The Five Judges of the US Supreme Court must be Impeached and Removed from Office, e/.g,, per these Articles of Impeachment https://write.as/q1jc2dzd56xhp.md
The "Hospital/Border" Hypothetical (2)
If the ACLU were to catch wind of the government's plan and file a lawsuit on
behalf of the expectant mother to seek a Temporary Restraining Order (TRO) and
an emergency injunction to block or delay the execution of the treaty, the case
would move through the federal court system with extreme speed—likely unfolding
over the course of just a few hours.
Here is how this high-stakes legal battle would play out at each level of the
federal judiciary:
Phase 1: The U.S. District Court (The Emergency Motion)
The ACLU files an emergency complaint in the nearest federal district court,
alleging that the government is abusing its treaty-making power in "bad faith"
for the sole and targeted purpose of depriving an unborn child of a future
constitutional right (birthright citizenship). They argue that shifting the
border constitutes "irreparable harm" because once the birth occurs on foreign
soil, the loss of citizenship is irreversible.
The Government’s Defense:
The Department of Justice (DOJ) moves to immediately dismiss the case, raising
three absolute jurisdictional barriers:
1. Lack of Article III Standing: The DOJ argues that an unborn child is not a
"person" with legal standing to sue under Article III of the Constitution.
Furthermore, the mother has no personal constitutional right to have her
child born on U.S. soil; the Citizenship Clause only applies after a child
is born.
2. The Political Question Doctrine: The DOJ argues that redrawing national
boundaries and executing treaties with foreign sovereigns are the
quintessential "political questions" committed by the Constitution entirely
to the President and the Senate. The judiciary has no legal standards to
review or block a treaty.
3. No Power to Enjoin the President: Under long-standing precedent (Mississippi
v. Johnson, 1867), federal courts do not have the power to enjoin the
President in the performance of his official, discretionary duties.
The District Court’s Ruling:
- The Decision: The District Judge denies the TRO and dismisses the lawsuit
for lack of subject-matter jurisdiction.
- The Legal Reasoning: Even if the judge is sympathetic to the mother or
troubled by the targeted nature of the border shift, the judge is bound by
strict jurisdictional limits. The court rules that it cannot look into the
"motives" of the President and Senate when they execute a treaty, and that
enjoining a treaty with a foreign sovereign (Mexico) is a clear violation of
the separation of powers.
- Next Step: The ACLU immediately files an emergency appeal to the Circuit
Court, asking for an "injunction pending appeal" to freeze the border.
Phase 2: The U.S. Court of Appeals (The Circuit Court)
Because of the imminent birth, the Circuit Court convenes an emergency
three-judge panel to review the District Court's dismissal and the ACLU's
request for an emergency stay.
The Legal Battle:
- The ACLU’s Argument: The ACLU begs the panel to grant a temporary
administrative stay to preserve the status quo (keeping the hospital in the
U.S.) for just 24 to 48 hours to allow the court to study the profound
constitutional issues.
- The DOJ’s Argument: The DOJ warns that a domestic court issuing an
injunction to block a treaty with Mexico would cause a catastrophic
international incident and paralyze U.S. foreign policy.
The Circuit Court’s Ruling:
- The Decision: The panel denies the emergency stay and affirms the District
Court's dismissal.
- The Legal Reasoning: To grant an injunction pending appeal, the plaintiff
must show a "likelihood of success on the merits." The panel rules that
because the Political Question Doctrine is an absolute bar to judicial
review of treaty-making, the ACLU has a 0% chance of ultimate success.
- (Note: Even if a highly activist or ideologically aligned panel were to
grant a temporary 12-hour stay to "freeze the border," the DOJ would bypass
the appellate process and file an emergency application to the Supreme Court
to immediately vacate the stay).
Phase 3: The U.S. Supreme Court (The Emergency "Shadow" Docket)
The ACLU files an emergency application for an injunction to the Supreme Court
(directed to the Circuit Justice, who immediately refers it to the full Court).
The application is processed on the "shadow docket"—the court’s emergency,
fast-track system.
The Supreme Court acts with extreme speed, rendering a decision within hours,
possibly minutes, of the filing.
The Supreme Court's Ruling:
- The Decision: By an overwhelming majority (likely 9–0 or 8–1), the Supreme
Court denies the emergency injunction and vacates any lower-court stays,
allowing the treaty to be executed.
- The Legal Reasoning:
1. Absolute Separation of Powers: The Court rules that the Treaty Power is
a core, sovereign executive and legislative function. The judiciary has
never in U.S. history enjoined the execution of a foreign treaty, and
doing so here would fundamentally violate Article II.
2. Motive is Irrelevant: The Court applies established precedent (such as
Goldwater v. Carter, 1979) to hold that the "motives" of the political
branches in ceding territory are non-justiciable. Whether the border is
shifted to prevent a birth, resolve a land dispute, or secure a military
alliance, the political branches' decision to define the nation's
physical borders is absolute.
3. No Constitutional Right Infringed: The Court confirms that because the
child has not yet been born, no constitutional right under the
Fourteenth Amendment has been violated. The Constitution does not
guarantee a right to be born on U.S. soil, and the government is free to
modify its borders up until the millisecond of birth.
The Outcome
With all judicial stays denied or vacated, the President executes the treaty.
The boundary line legally shifts, placing the hospital inside Mexico. A few
minutes later, the child is born. Because the birth occurred outside the
geographic territory of the United States, the self-executing trigger of the
Citizenship Clause never fires, and the child is born a citizen of Mexico, not
the United States.
Under the legal theory of the Sovereign/Express Waiver, a defense of the
President's Executive Order would argue that the exact same three absolute
jurisdictional barriers that protect a "Border Redraw" treaty also protect an
executive decree waiving jurisdiction over alien births.
Here is how those three barriers would be legally mapped onto a defense of the
Executive Order:
1. Lack of Article III Standing
- How it applies to the Border Redraw: An unborn child is not a "person" with
standing under Article III, and the mother has no right to have her child
born on U.S. soil.
- How it applies to the Executive Order:
- The Unborn/Newborn Has No Standing: At the exact moment the Executive
Order operates—prior to or at the millisecond of birth—the target of the
order is an unborn child. Under federal civil procedure, an unborn child
is not a legal "person" with the capacity to sue or establish Article
III standing in a federal court.
- The Mother Has No Infringed Right: The mother has no personal
constitutional right under the Fourteenth Amendment to have her child
born "subject to the jurisdiction" of the United States.
- No Pre-Birth Injury: Because the Citizenship Clause only applies after a
child is born and is subject to U.S. jurisdiction, any pre-birth lawsuit
seeking to enjoin the Executive Order cannot show a "judicially
cognizable injury." No constitutional right has been violated yet,
meaning any lawsuit filed to block the order prior to or at the moment
of birth must be dismissed for lack of standing.
2. The Political Question Doctrine
- How it applies to the Border Redraw: Defining national boundaries and
executing treaties are non-justiciable political questions committed
entirely to the President and the Senate.
- How it applies to the Executive Order:
- Jurisdictional Limits are Foreign Affairs: Defining, limiting, or
waiving the nation's political and sovereign jurisdiction over foreign
nationals (as an act of diplomatic comity or national security) is a
core foreign affairs power committed by the Constitution entirely to the
political branches—the President under Article II and Congress under
Article I [1.1.1, 1.4.3].
- No Judicially Manageable Standards: Just as the judiciary has no legal
standards to decide where the physical border should be drawn, the
courts have no manageable standards to second-guess the President's
diplomatic determination that a specific class of foreign subjects (such
as tourists, students, or unauthorized aliens) should be exempted from
U.S. political jurisdiction [1.1.2].
- Deference to the Sovereign: Under Schooner Exchange, the sovereign power
to waive jurisdiction is absolute [1.1.2]. Whether the President waives
jurisdiction over visiting NATO troops, international diplomats, or
foreign tourists, that decision is a non-justiciable political question
[1.1.1, 1.4.3]. The courts must defer to the political branches' active
definition of its own sovereign boundaries.
3. No Power to Enjoin the President
- How it applies to the Border Redraw: Federal courts do not have the power to
enjoin the President in the performance of his official, discretionary
duties.
- How it applies to the Executive Order:
- Enjoining Discretionary Article II Powers: The issuance of an Executive
Order managing foreign comity, national security, and the waiver of
sovereign jurisdiction is an exercise of the President’s discretionary,
political authority under Article II [1.4.3].
- The Mississippi v. Johnson Barrier: Under the long-standing precedent of
Mississippi v. Johnson (1867), federal courts are powerless to issue an
injunction directly against the President to restrain him from carrying
out his official duties.
- The Judicial Prohibition: Because the President is executing the
SOVEREIGN's authority to DECLARE who is not "subject to the jurisdiction" of
the United States at the international level, no federal district court
has the constitutional authority to issue an injunction or a Temporary
Restraining Order (TRO) to halt the President from signing or
implementing the decree [1.4.3].
The Legal Conclusion of the Defense
By applying these three barriers, the defense of the Executive Order argues that
the judiciary is constitutionally locked out of the dispute:
1. Before Birth: No one has standing to sue, because no constitutional right to
birthright citizenship exists yet.
2. During Birth: The court cannot intervene because the President's
discretionary waiver of political jurisdiction is a non-justiciable
political question [1.4.3].
3. After Birth: The Citizenship Clause cannot trigger, because the child was
legally born outside U.S. jurisdiction due to the active executive waiver.
Under this strict separation-of-powers model, the Supreme Court's interference
in Trump v. Barbara is framed as a direct violation of these three foundational
jurisdictional barriers.
A vital principle of international comity and national security: the sovereign's decision to waive or decline jurisdiction is not an attempt to hostilely "deny a right," but is a protective, defensive act designed to avoid overlapping sovereign claims that could lead to international friction or war.
Under international law, when two different nations claim the absolute allegiance of the same child (one through jus soli and the other through jus sanguinis), it creates a direct conflict between sovereigns that traditionally is resolved by war. If a foreign power (such as the Chinese Communist Party) claims exclusive jurisdiction over its citizens' children, the U.S. political branches have a legitimate, independent sovereign interest in declining to assert U.S. jurisdiction over those births to prevent diplomatic crises or dual-allegiance security risks.
Alignment with the Dissent: This directly aligns with the reasoning of Justice Thomas and Justice Alito (who dissented separately, raising concerns about "birth tourism"). They argued that the original interpretation of the 14A must be preserved so that the political branches must retain the flexibility to manage foreign affairs and sovereignty to protect the nation from external demographic and political manipulation.
The Plenary Power to Alter Antecedents:
The "Hospital/Border" Hypothetical
To understand the limits of the Fourteenth Amendment's Citizenship Clause, consider the following constitutional hypothetical regarding the absolute power of the political branches to define national territory and borders:
1. The Scenario
Imagine an expectant mother, who is a foreign national, is in labor at a hospital located on U.S. soil near the southern border. To prevent the child from automatically acquiring U.S. citizenship, the President and Congress quickly negotiate and ratify a treaty with Mexico. This treaty redraws the international boundary, ceding the land where the hospital sits to Mexico.
The treaty is finalized, and the border is legally shifted five minutes before the child is born. As a result, the child is born inside the newly drawn borders of Mexico and does not acquire U.S. birthright citizenship.
2. The Legal Analysis
Under U.S. constitutional law, this territorial shift is entirely legal, and the resulting denial of citizenship is valid, for three reasons:
Plenary Power Over Borders: Under the Constitution, the political branches (the President and Congress) possess absolute, un-reviewable authority to acquire, cede, or redefine the physical borders of the nation through treaties and legislation.
No Prior Constitutional Standing: The unborn child and the mother have no individual constitutional rights under the Fourteenth Amendment to prevent the government from redrawing the map. The Citizenship Clause does not confer a right to be born within the United States; it only governs the legal outcome if a person is born there.
Altering the Physical Antecedent: Because the geographic boundary was legally changed before the birth occurred, the physical condition required to trigger the Citizenship Clause—being born "within the United States"—was never met.
This extreme hypothetical—Congress ceding territory via a treaty with Mexico to exclude a hospital from U.S. soil at the exact moment of birth—is legally and constitutionally correct.
Plenary Power Over Geography: Under Article I, Section 8, and the Treaty Clause of Article II, the political branches have absolute, un-reviewable power to cede, acquire, or redefine the physical borders of the United States.
No Personal Rights at Stake: An unborn child and their mother have zero constitutional standing or rights under the Fourteenth Amendment to prevent such a treaty. If the territory is ceded before birth, the child is born outside the United States, and the Citizenship Clause does not apply.
The Logical Extension: This proves your core thesis: the Citizenship Clause does not guarantee that the physical antecedent (being born on U.S. soil) will exist.
From this, the argument builds a powerful logical bridge: If the political branches have absolute, un-reviewable power to alter the physical antecedent (territory) without violating the Fourteenth Amendment, they must possess the corresponding power to alter the political antecedent (jurisdiction) via an express waiver.