Birthright citizenship is the right that grants automatic citizenship to anyone born in the US, irrespective of the status of their parentage. Trump issued an executive order cancelling birthright citizenship for any child born after February 19, 2025 to anyone other than US citizens or permanent residents. This order was immediately challenged by multiple states and in the first hearing on it, a federal judge in Seattle immediately suspended the order, calling it “blatantly unconstitutional”.
“I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is,” U.S. District Judge John Coughenour told a Justice Department attorney. “This is a blatantly unconstitutional order.”
Thursday’s decision prevents the Trump administration from taking steps to implement the executive order for 14 days. In the meantime, the parties will submit further arguments about the merits of Trump’s order. Coughenour scheduled a hearing on Feb. 6 to decide whether to block it long term as the case proceeds.
Coughenour, 84, a Ronald Reagan appointee who was nominated to the federal bench in 1981, grilled the DOJ attorney, Brett Shumate, asking whether Shumate personally believed the order was constitutional.
“I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order,” he added.
….The U.S. is among about 30 countries where birthright citizenship — the principle of jus soli or “right of the soil” — is applied. Most are in the Americas, and Canada and Mexico are among them.
There used to be no formal definition in the US of what makes someone a citizen but it was generally accepted that anyone born in the US, except for slaves, was a citizen. The 14th Amendment passed in 1868 following the Civil War was meant to remove any doubt that Black people, whether free or slaves or the children of slaves, had the full rights of citizenship.
Section 1 of that Amendment 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Of course in practical terms Blacks were still discriminated against and that continues even today, though to a lesser extent.
Birthright citizenship was thought to be irrefutable so why does Trump think otherwise? It all hinges on the interpretation of the phrase “and subject to the jurisdiction thereof”. For those interested in delving into the weeds and knowing more about this particular wrinkle, my post from back in 2015 has more details and shows that Trump has long been obsessed with this issue.
In the hearing, the Trump administration even questioned the citizenship status of Native Americans.
The Justice Department then goes on to cite the Civil Rights Act of 1866, which predates the 14th Amendment by two years. The Justice Department attorneys specifically cite a section of the act that notes that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
The Trump administration then goes on to argue that the 14th Amendment’s language — the phrase “subject to the jurisdiction thereof” — is best understood “to exclude the same individuals who were excluded by the Act —i.e., those who are ‘subject to any foreign power’ and ‘Indians not taxed.’”
The Justice Department attorneys return to the topic of whether or not Native Americans should be entitled to birthright citizenship later in their arguments, citing a Supreme Court case, Elk v. Wilkins, in which the court decided that “because members of Indian tribes owe ‘immediate allegiance’ to their tribes, they are not ‘subject to the jurisdiction’ of the United States and are not constitutionally entitled to Citizenship.”
“The United States’ connection with the children of illegal aliens and temporary visitors is weaker than its connection with members of Indian tribes. If the latter link is insufficient for birthright citizenship, the former certainly is,” the Trump administration argued.
So there you have it. The citizenship of even the descendants of the original inhabitants of this country is being contested.
The madness is ongoing.
So glad the judge immediately dismissed this anti-Constitutional law. Worried for the people who lived on American soil even before it was American soil. That includes not only the Native Americans whose people got here before Columbus and the Spanish-speaking folks who have lived in the south-west and California since before those places belonged to the US. Once Trump gets his hate going, he doesn’t want to let it go just because it’s illegal and/or makes no sense.
Using Trump’s logic, all of his children except Tiffany (born to Marla Maples, American citizen) need to be deported ASAP because their mothers (Ivana and Melania) were not American citizens at the time of their birth.
This will also cause no end of headaches for children of US military members even if the parents are both American citizens. People like John McCain (born in Panama to American citizens while his father was on active duty there) and countless others who were also born overseas when their parents were stationed there. Sticking with John McCain as an example, this will also be a huge problem to American citizens who adopt children born overseas--as the McCains did. (If you recall, Ken Ham was behind the winning strategy of calling voters in South Carolina and informing them that McCain was the father of “a half-black illegitimate child”--the fine racists in South Carolina were happy to vote against McCain.)
Katydid @ 1
Was that Ken Ham? I thought it was the other one, wossname that worked directly for Dubya who spread the rumor about McCain. Karl Rove?
@2: Ooops, you may be right and I may be mis-remembering. I just googled and yes, you are right.
I think Trump’s idiocy is leftover from the hatred he had for Barack Obama. I remember all the pre-MAGA carrying on trying to pretend that a 19-year-old American middle-class girl got on an airplane in 1963 (when flights were a very expensive luxury for the rich) for a series of flights lasting more than 30 hours while hugely pregnant (and pregnant ladies can’t fly) so that she could then spend 2 days in a broken-down pickup truck on unpaved roads--all to go to a remote African village she’d never been to and didn’t speak the language in order to give birth for the first time.
Because of course this makes much more sense than a 19-year-old girl giving birth in the same town she lived in and spoke the language, supported by family and friends, her birth attended at a world-class hospital.
When that stupid argument got laughed at, they insisted that a 19-year-old American girl couldn’t give citizenship because “she was not a citizen”--which they defined as anyone over the age of 18, not what the Constitution says about anyone native-born being an automatic American citizen.