If a person is subject to the jurisdiction of both the United States and Mexico, is he subject to the jurisdiction of the United States?
The answer – logically, linguistically, and legally – is yes. And that will spell near-certain doom for Donald Trump’s effort to decimate our century-and-a-half year-old Constitutional principle known as Birthright Citizenship, which goes before the U.S. Supreme Court for oral argument on Wednesday.
Birthright Citizenship comes from the Fourteenth Amendment, ratified in 1868 after the Civil War: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Ever since then, it has been broadly understood to mean that a child born here is a U.S. citizen, regardless of the parents’ status and with only the slimmest of exceptions. The doctrine originally served the practical purpose of ensuring citizenship for the children of recently-freed Black slaves – and the distinctly American ethic that the status of the parent need not restrict the child.
But on his first day back in office in January 2025, Trump issued an executive order bearing the Orwellian title “Protecting the Meaning and Value of American Citizenship” that would vastly reduce the scope of Birthright Citizenship (but not “end” it altogether, contrary to certain imprecise reporting). Under Trump’s construction, a child born in the United States would automatically become a citizen only if at least one parent was present in the United States legally or permanently. A child born here to parents without legal status would not become a citizen. Nor would a child born in the United States to parents with temporary legal status – including, for example, lawful work visas, student visas, specialty occupation visas, Deferred Action for Childhood Arrivals (DACA) status, or humanitarian temporary protected status.
Trump’s executive order turns entirely on the meaning of the Constitutional phrase “subject to the jurisdiction thereof.” The administration has argued to the courts that, if a non-citizen living in the United States is also a citizen of, say, Mexico (to use our opening hypothetical), then that person is subject to the jurisdiction of both countries – and hence not “subject to the jurisdiction of the United States” (and the child therefore is not entitled to Fourteenth Amendment protection).
The illogic is plain, of course. If I’m holding two things at once – let’s say a baseball in one hand and a football in the other – then I am indeed holding a baseball; holding the football in the other hand doesn’t somehow cancel out the baseball. And if the Constitution meant what Trump’s lawyers claim it means, it would have an extra word: “subject only (or solely, or exclusively) to the jurisdiction” of the United States.
Indeed, a Mexican-born parent living illegally (or with temporary status) in the United States is unquestionably “subject to the jurisdiction of” this country. He certainly could be arrested and imprisoned in the United States, for example – “subject to the jurisdiction thereof,” to use the Constitutional language. So, too, could that person be taxed by the United States government, or regulated, or questioned, or ticketed, or any of the other things the government does to people who live here. Imagine a scenario where a federal law enforcement agent tried to arrest a Mexican-born person inside the United States and that person responded, “Sorry, sir. I am physically here in the United States but I’m also a Mexican citizen, so therefore I’m not subject to your jurisdiction, according to the President.” Wouldn’t fly, would it?
Trump’s lawyers have argued that the Fourteenth Amendment doesn’t say that everyone born here is a citizen here, period; the person must also be “subject to the jurisdiction thereof,” and that phrase therefore must exclude somebody to have any meaning. The answer, which has been accepted by every court to consider the issue so far, is that “subject to the jurisdiction thereof” does indeed serve to exclude certain extremely narrow categories of people who are altogether outside the reach of the U.S. government: the children of foreign diplomats or invading hostile armies, for example. Read that way, every word of the Fourteenth Amendment’s Birthright Citizenship clause has a purpose, and makes perfect sense.
Thus far, Trump’s tortured Constitutional construction has been uniformly rejected in the federal courts. District judges in New Hampshire, Maryland, Massachusetts, and Washington have rebuffed the President’s attempt to rewrite the Constitution and U.S. history, and the Courts of Appeals for the First, Fourth, and Ninth Circuits have declined to block those lower court rulings. In the Washington case, Reagan-appointed District Court Judge John Coughenour called Trump’s executive order “blatantly unconstitutional.” The veteran jurist noted, “I have been on the bench for over four decades. I can’t remember another case where the question presented was as clear.” After more than a year of litigation across the country, the Trump administration is batting exactly .000.
When the Supreme Court hears oral argument on Birthright Citizenship on Wednesday, expect the Justices and the advocates to converse on all manner of deep legalese. But in the end it comes down to the simple proposition that if a person has two things at once, he also has one of them; if a person is subject to the jurisdiction of the United States and Mexico, he is indeed subject to the jurisdiction of the United States, and therefore covered by the Fourteenth Amendment.
The law and logic are clear enough here that I’d expect the conservative Chief Justice John Roberts and Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett ultimately to join their three liberal colleagues and rule against Trump, and in favor of our long-accepted notion of Birthright Citizenship. It’s tough to predict Justices Clarence Thomas and Samuel Alito whenever Trumpian politics are involved, but even they might be persuaded given the clarity of the legal issue at hand. The only real drama remaining is whether the Supreme Court will reject Trump’s position seven-to-two, or unanimously.
