A recent New York Times op-ed by prominent law professors has sparked discussion by suggesting that former President Donald Trump's position on birthright citizenship may have a stronger legal basis than commonly believed. Georgetown Law's Randy E. Barnett and University of Minnesota's Ilan Wurman argue that the Supreme Court, when it eventually addresses this issue, might find Trump's argument more compelling than anticipated.
Trump's executive order aiming to end birthright citizenship for children born to undocumented immigrants has encountered legal challenges, including a temporary block by a U.S. District Judge. However, the professors' analysis delves into the historical and legal context of birthright citizenship, examining the 14th Amendment's clause stating that all persons born or naturalized in the U.S. and subject to its jurisdiction are citizens.
The core of their argument revolves around the interpretation of "subject to the jurisdiction thereof." They question whether individuals who entered the country illegally and remain unlawfully present have demonstrated the necessary allegiance to the U.S. to be considered under its jurisdiction in the context of the 14th Amendment. Barnett and Wurman contend that entering and remaining in the country illegally constitutes an act of defiance, not allegiance, to its laws.
They draw a distinction between such individuals and those who enter legally, even temporarily, acknowledging the greater complexity of the latter situation and choosing not to address it directly in their piece. Furthermore, they emphasize that the question of whether Congress *should* grant citizenship to children born to undocumented immigrants is a separate policy matter, distinct from whether the 14th Amendment mandates it. The authors point out that a Supreme Court footnote previously assumed the 14th Amendment's jurisdiction clause applied to those illegally present, but the issue wasn't thoroughly argued in that case.
