A Federalist Society webinar spotlighted a renewed fight over birthright citizenship: two panelists described how Congress could design legislation to test the Supreme Court’s latest reading of the 14th Amendment. The discussion was reported by The Center Square.
What sparked the debate
The Center Square summarized the citizenship clause as: “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” According to the outlet, the phrase has been read for roughly 150 years to confer citizenship to children born in the U.S., with limited exceptions, regardless of a parent’s legal status. The Center Square reported that the U.S. Supreme Court affirmed that interpretation in June in Trump v. Barbara, describing Chief Justice John Roberts’s view of “subject to the jurisdiction thereof” as the United States’ power to govern anyone living in its territory.
Two readings of “jurisdiction”
The Center Square noted critics who argue the clause concerns national, not merely territorial, jurisdiction—requiring allegiance to the U.S.—and contend the 14th Amendment was intended for citizens and freed slaves, not for illegal immigrants or tourists.
Gene Hamilton, president of the America First Legal Foundation, criticized the Court’s approach. “This was an outcome-oriented decision, in my opinion. This is not a decision that was actually grounded in originalism,” Hamilton said in the webinar, per The Center Square. He added, “it’s weird to me — to put it bluntly — to consider someone being subject to the jurisdiction thereof as implying simply that their mere presence in the United States…means that [they] are a member of the body politic, and [their] children should be citizens, and that there is nothing that could ever change that.”
U.S. Court of Appeals Judge for the Second Circuit Steven Menashi offered a different take. To The Center Square, he argued that “to understand a rule that is fixed to apply differently under different circumstances is not really an odd result or non-originalist in any way.” Drawing an analogy, he said, “We say the Second Amendment doesn’t just apply to muskets, and so it might also be that the principle in the [citizenship] clause doesn’t only apply to the categories to which it applied at the time.”
Where Congress could step in
Despite their interpretive split, both Hamilton and Menashi agreed Congress could attempt to legislate around the decision or at least trigger a fresh review. Menashi said, “[If the circumstances under which somebody receives citizenship can’t be limited, then maybe Congress or the executive branch might try to reclaim some of the authorities about regulating citizenship… And that’s not inconsistent with Barbara, right? Because Barbara is just about who receives citizenship. It’s not about the degree to which citizenship could be regulated once conferred.”
Hamilton added, “all that we need is a vehicle to get before the Supreme Court to get them to reconsider the decision,” suggesting Congress “could still pass a law…and ultimately, that’s just going to cue up another case or controversy for the Supreme Court to adjudicate and decide. But Congress still ultimately has the power to do whatever it wants.”
By the numbers cited
The Center Square cited estimates that, as of 2017, roughly 4.5 million children under 18 born to illegal immigrants lived in the U.S., according to the Federation for American Immigration Reform. The outlet also reported an estimated 225,000 to 250,000 such births in 2023, according to the Center for Immigration Studies.
What to watch
According to The Center Square’s report, the panelists argued Congress could pass a law to test the Court’s current reading of the citizenship clause—setting up a new case for the justices to reconsider.
