The Trump administration continues to insist the constitution doesn’t necessarily provide birthright citizenship to all people born in the U.S., part of its push to force immigrants and their children out of the country.
During a Thursday event in Florida, White House border czar Tom Homan called birthright citizenship a “magnet” for unauthorized immigration and claimed the Supreme Court still needs to decide the matter — something it has already done multiple times in decisions dating back over a century.
“I think the Supreme Court finally needs to answer that question. I’m not a lawyer, but I can read,” Homan said during a discussion with Florida Governor Ron DeSantis at New College of Florida. “And I don’t think it’s clear that an illegal alien who has a child in the country, is automatically a U.S. citizen.”
After the Civil War between free and slave states, birthright citizenship was enshrined in the 14th Amendment of the Constitution, whose citizenship clause states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
Subsequent Supreme Court decisions in 1898 and 1982 upheld that this citizenship guarantee includes people born in America with foreign-national parents, even if their parents are unauthorized immigrants.
Nonetheless, in January, President Trump signed an executive order that would deny citizenship to children born in the United States if their parents are “unlawfully” present or have “lawful but temporary” status in the country.
The administration has relied on an obscure argument, once only popular in fringe right-leaning legal circles, that the “jurisdiction” portion of the 14th Amendment doesn’t apply to illegal immigrants.
Many legal commentators have said this interpretation is flawed.
“That’s nonsense,” Thomas Wolf recently wrote of the argument for the left-leaning Brennan Center. “Undocumented immigrants and their children are required to follow the same laws as everyone else on U.S. soil, including paying taxes.”
Federal judges in recent cases in Maryland, Massachusetts, and Washington have similarly found flaws in the White House’s birthright citizenship push.
“If the government wants to change the exceptional grant of birthright citizenship, it needs to amend the Constitution itself,” District Judge John C. Coughenour, a Ronald Reagan appointee, wrote in a ruling last month pausing the executive order. “Because the president’s order attempts to circumvent this process, it is clearly unconstitutional.”
Last week, the Trump administration asked the Supreme Court to limit the impact of three injunctions that’ve been placed on the executive order, so they would only apply in the states that brought the lawsuits rather than nationwide.
At the same time as the White House has called on the Supreme Court to step in, it has repeatedly attacked the federal judiciary, with Trump and his adviser Elon Musk sharply criticizing federal judges and calling for the removal of those who have ruled against the administration.
It has also sought to ramp up immigrant enforcement in other ways against individuals with forms of U.S. legal status.
Immigration agents have initiated removal proceedings against lawful permanent residents and those in the U.S. on student visas, arrests their attorneys claim are a form of backlash that violates the First Amendment and punishes people for political activism and scholarship.
To justify the deportation attempts against recent Columbia graduate Mahmoud Khalil and Georgetown scholar Dr. Badar Khan Suri, the administration has relied on an obscure, scarcely used portion of the Immigration and Nationality Act, which allows the Secretary of State to determine a non-citizen should be removed from the country because they threaten U.S. foreign policy interests.
