Can Trump Actually End Birthright Citizenship?

[00:00:00]Born on American soil.

[00:00:02]For 158 years, that was enough.

[00:00:05]No questions. No conditions.

[00:00:09]You were citizen.

[00:00:11]Now, imagine you're born in hospital right here in the United States of America. Your parents are here. Maybe legally. Maybe not. But you came into the world on American soil.

[00:00:24]For 158 years, that single fact, where you were born, was enough to make you an American citizen.

[00:00:33]No questions asked. No conditions attached.

[00:00:37]Until January 20th, 2025, day one of Donald Trump's second term.

[00:00:43]He signed an executive order that said, "That's no longer enough."

[00:00:49]Suddenly, millions of people had one question.

[00:00:52]Is that even legal? Here's what I want to do on this edition of Behind the Story.

[00:00:58]I don't just want to report on what happened. I want to go behind it, find out where it came from, why it existed, who it was designed for, and who it has been used against because the only way to understand this fight is to understand the story underneath it. So, let's start at the beginning.

[00:01:18]The origin story.

[00:01:20]The deep history about 14th Amendment.

[00:01:26]The concept of birthright citizenship goes back centuries.

[00:01:30]Long before America was even a country, English common law had what was called jus soli, a Latin term meaning right of soil.

[00:01:40]The idea was simple.

[00:01:41]If you were born within the king's territory, you owed allegiance to the crown, and the crown owed you protection.

[00:01:49]Colonists brought that idea with them to the New World, and it was baked into early American legal thinking from the start.

[00:01:57]But then came a decision that shook everything, shook the foundation of everything in America, 1857.

[00:02:04]The Supreme Court, Dred Scott v.

[00:02:07]Sandford.

[00:02:08]The court ruled that black people, people like me, my ancestors, whether enslaved or free, could never be American citizens.

[00:02:18]Ever.

[00:02:19]Not by birth, not by anything.

[00:02:23]That ruling didn't just affect enslaved people, it was a statement about who this country believed belonged here, who was fully human under American law, and who wasn't.

[00:02:35]It took Civil War and over 620,000 lives lost before that ruling would ever be overturned.

[00:02:43]The 14th Amendment was the fix.

[00:02:47]In 1868, 3 years after the Civil War ended, Congress passed the 14th Amendment to the Constitution.

[00:02:54]And the first sentence of that amendment, the very first words, were a direct and deliberate rebuke to Dred Scott. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the state wherein they reside.

[00:03:18]All persons born here, citizens. The drafters of the 14th Amendment weren't being vague, they were being intentional.

[00:03:26]They wanted to make it crystal clear, if you were born on this soil, you belong here. That principle.

[00:03:33]Birthright citizenship has been part of American constitutional law for over 150 years. But here's where it gets interesting.

[00:03:42]That one phrase, subject to the jurisdiction thereof, four words, four words that today are at the center of a constitutional battle that is now sitting on the steps of the United States Supreme Court. And what do those four words actually mean? Who gets to decide? Who gets to decide the legal history? And the legal history is not what most American people think it is.

[00:04:05]Stay with me.

[00:04:07]Let's talk about what the Constitution actually says.

[00:04:11]Four words, subject to the jurisdiction thereof. Those are the four words that the Trump administration says change everything.

[00:04:20]That they create an exception, a carve out for children born to parents who are here illegally. And those four words are exactly why and what we need to dig into right now, because the entire debate, the executive order, the lawsuits, the Supreme Court, all of it comes down to what those words were meant to say and what they're always have been understood to mean.

[00:04:49]Let's talk about what jurisdiction meant in 1868, in May.

[00:04:53]When the 14th Amendment was written in 1868, this phrase, subject to the jurisdiction thereof, had a specific but limited meaning.

[00:05:02]It was designed to exclude two groups and two groups only. First, the children of foreign diplomats, because diplomats have immunity from American law.

[00:05:12]They're literally not subject to our jurisdiction, so their children were excluded. Second, members of hostile occupying foreign forces. Same principle, not under American authority. And that was it.

[00:05:28]That was the entire scope of the exception.

[00:05:32]Nobody in 1868 was saying, "And also, anyone whose parents don't have papers."

[00:05:38]They couldn't have, right? Modern immigration law as we know it barely existed back then.

[00:05:44]Then came the precedent, Wong Kim Ark.

[00:05:48]That settled it.

[00:05:49]So we believe.

[00:05:51]In 1868 the case United States versus Wong Kim Ark, Wong Kim was born in San Francisco.

[00:05:58]His parents were Chinese immigrants and here legally but not eligible for citizenship on the laws of the time. He left the country, came back and the government tried to bar him from reentering. Their argument he wasn't a real citizen.

[00:06:12]Well, the Supreme Court disagreed decisively.

[00:06:16]In a 6-2 ruling, the court said Wong Kim Ark was born on American soil and therefore he was American. Very simple.

[00:06:28]He was born on American soil so he was American.

[00:06:36]Let that sit with you for a minute while you ponder what's currently going on in the country in regards to the Trump administration trying to overturn what is basically known as constitutional law. Wong Kim, like most people that are in the same situation, was born on American soil.

[00:07:02]Jus soli of the soil.

[00:07:06]It didn't take into consideration the status of his parents.

[00:07:12]It took into consideration that he was born here and therefore was a citizen. The decision in the Wong Kim Ark case stood for 128 years.

[00:07:25]It is the precedent.

[00:07:27]It is the law of the land. Every American born on US soil, regardless of their parents' nationality or immigration status, is an is a citizen at birth, basically.

[00:07:38]That is the precedent.

[00:07:41]Now, the executive order that President Trump issued on January 20th, Executive Order 14160, I believe, directed federal agencies to stop recognizing birthright citizenship for children born to parents who are either in the country illegally or here on temporary visas.

[00:08:06]The administration's argument is essentially this. The phrase "subject to the jurisdiction thereof" implies a concept called domicile, meaning lawful permanent authorized presence in the United States. If your mother isn't domiciled here legally, they argue, then you, the child born here, are not automatically a citizen. Legal scholars across the spectrum called it constitutionally unprecedented. In fact, Harvard Law Professor Gerald Neuman, one of the country's leading experts in immigration and nationality law, was blunt.

[00:08:40]The President of the United States, he said, has no authority to change citizenship rules, none at all. The executive order was immediately challenged in court, and court after court, federal judges, appellate panels, blocked it. Said it was unconstitutional.

[00:08:59]But, sadly, that's not the end of the story, because this thing is now at the Supreme Court, and in oral arguments in April of this year revealed something fascinating about the word domicile, about what the justices were actually thinking, and about just how close they may be to a decision that could reshape American citizenship as we've known it. In April of this year, the Supreme Court heard the case. Nine justices, two hours of oral arguments, one question.

[00:09:32]Does the President of the United States have the power to by executive order end birthright citizenship for certain children born on American soil.

[00:09:45]This is not a hypothetical. This is happening. It's happening right now. And depending on how those justices rule, we could be looking at the most significant change to American citizenship law since 14th Amendment itself was written.

[00:10:00]The most significant change since 1868.

[00:10:04]Now, what the Supreme Court is wrestling with is the domicile argument. This is the legal anatomy, right? So, here's what was actually argued in front of the court.

[00:10:16]The government's lead attorney, the solicitor general, is asking the justices to accept three things. One, that the phrase subject to the jurisdiction thereof secretly implies a requirement of domicile, a legal term meaning permanent authorized home.

[00:10:35]Two, that domicile should require lawful immigration status, a green card or something similar. And three, that a child inherits this requirement from their mother.

[00:10:47]The problem word domicile does not appear anywhere in the 14th Amendment.

[00:10:55]Not anywhere. And several justices, including Justice Gorsuch, appointed by Trump himself, pushed back hard on this oral arguments.

[00:11:04]Gorsuch pointed out something important.

[00:11:06]He said, "In 1868 when the Amendment was written, there were almost no federal immigration laws regulating who could stay or be removed. So, how could the drafters have meant to tie citizenship to an immigration status framework that didn't even exist yet?"

[00:11:24]Justice Jackson went further. She argued that the entire point of the 14th Amendment was to prevent future congresses, and by extension future presidents, from being able to tinker with citizenship.

[00:11:37]That was the intention.

[00:11:39]Lock it down, make it permanent.

[00:11:42]Again, the word domicile does not appear anywhere in the 14th Amendment.

[00:11:49]Not anywhere.

[00:11:51]So, what actually changed the 14th Amendment? What What What can it What would it take to really change it to what the current administration would want? And let Let me give you the honest answer to that question. And really it's a question that a lot of people are asking. What would actually change take to permanently change birthright citizenship in the United States? Well, an executive order cannot do it. Courts have made that clear.

[00:12:17]An act of Congress likely cannot do it because birthright citizenship is in the Constitution itself. A federal statute doesn't override constitutional text. To genuinely, permanently end birthright [clears throat] citizenship for children of undocumented immigrants would require amending the Constitution.

[00:12:40]That means a 2/3 majority of the House and the Senate would have to vote in favor of that. Good luck with the current state of our politics. And then the ratification by 3/4 of all 50 states. That's 38 states, and that bar hasn't been cleared in this country since 1992, which was the last constitutional amendment that was ratified, and that took over 200 years to pass. And specifically on birthright citizenship, there's never been anywhere close to that level of consensus. So, whatever the Supreme Court decides, and we're likely to know very soon, that decision will define boundaries of executive power, but it will not, in and of itself, end birthright citizenship.

[00:13:26]That fight, if it ever comes, would be a far longer, far harder road. There's a human side to this, and I want to step back for a second because behind all of this, the constitutional arguments, the Latin phrases, the Supreme Court briefs, there are real people.

[00:13:47]There are children who were born here, who grew up here, who went to school here, pledged allegiance to this flag, and have never known any other country.

[00:13:57]And there are parents right now who are afraid.

[00:14:01]Not of some abstract legal concept, but of what it means for their child if that piece of paper, that birth certificate, no longer means what has it has always meant. That fear is real.

[00:14:17]And now, whether you agree with birthright citizenship or not, that that fear is real, and it deserves to be acknowledged.

[00:14:26]But the law is the law, and the story of how that law came to be, born out of the bloodiest chapter in American history, written to right one of the worst wrongs this country has ever committed, that story matters.

[00:14:41]Understanding where it came from doesn't tell you what to think.

[00:14:45]But it should tell you not to think about it lightly. Well, that's the story behind the story of birthright citizenship, where it came from, what it was designed to do, and how it's been challenged, defended, and is now being tested at the highest court in the land.

[00:15:05]You may have a strong opinion on this, and you may still have that opinion, and that's good. That's the point.

[00:15:11]But at least now, I hope that opinion has some context. It has some history, and it has the weight of 158 years of American law behind it.

[00:15:22]And that's what I do here.

[00:15:24]I don't tell you what to think.

[00:15:26]I give you what you need in order to think things through.

[00:15:30]Now, let me wrap up by saying if this conversation meant something to you, please share it. Put it in front of someone who needs the the context and drop a comment. I really want to know where you land on this one.

[00:15:41]Let's start the conversation publicly.

[00:15:44]And if you haven't already, go ahead and subscribe to the channel so you don't miss the upcoming episodes and as always, this is Behind the Story.

[00:15:53]I'm Jelani Francis Gonzalez Jr.

[00:15:56]and I'll see you soon.

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