AI helps explain the legal theory for ending birthright citizenship
Based on the Supreme Court’s rulings on Roe v. Wade, or the Chevron Deference, anyone who believes birthright citizenship is ‘settled law’ may be in for a surprise.
By Peter List, Editor, with help from AI | January 22, 2025
Since President Trump re-entered the White House on Monday and signed a multitude of Executive Orders and Actions, one that seems to have garnered much attention is his order ending “birthright citizenship.”
“The Fourteenth Amendment” Trump’s Executive Order states, “has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’”
Within a day, 22 states filed lawsuits and it appears the issue will head to the U.S. Supreme Court—which is likely Trump’s intent.
The White House said it’s ready to face the states in court and called the lawsuits “nothing more than an extension of the Left’s resistance,” the Associated Press reported yesterday.
Like many who were raised with the understanding that a person born in the United States is automatically a U.S. citizen, it raised the question: How does Donald Trump believe he can end something that is presumably constitutional?
Well, as it turns out, birthright citizenship (as we know it today) came about as a result of an 1898 U.S. Supreme Court decision called United States v. Wong Kim Ark and just as many believed Roe v. Wade was settled law, birthright citizenship may also be subject to a re-interpretation by SCOTUS.
Given my unfamiliarity with the legal theories for ending birthright citizenship, I wanted to find the answer and turned to AI.
As in prior inquiries, though ChatGPT provided a partial answer (below), Google’s Gemini, and Microsoft’s Co-Pilot were woefully inadequate. Grok, however, had the most complete answer.
Prompt: What is the legal theory for ending birthright citizenship?
Here is Grok’s response:
The legal theory for ending birthright citizenship in the United States primarily revolves around the interpretation of the Fourteenth Amendment to the U.S. Constitution, which states:
"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."
Here are the key arguments and theories:
Jurisdiction Clause Interpretation:
Proponents of ending birthright citizenship argue that the phrase "subject to the jurisdiction thereof" should be interpreted narrowly. They suggest that this clause was intended to exclude children born to foreign diplomats or to members of tribes not fully under U.S. jurisdiction at the time (like Native American tribes before they were granted citizenship). They extend this interpretation to argue that children born to undocumented immigrants or those present in the U.S. temporarily should not automatically gain citizenship because their parents are not "subject to the jurisdiction" in the same way as permanent residents or citizens. They often cite historical interpretations from the time of the amendment's passage or from legal scholars like Senator Jacob Howard, who helped draft the amendment.
Historical Context and Intent:
Critics of birthright citizenship use historical context to argue that the amendment was meant to address specific post-Civil War issues, primarily to ensure citizenship for freed slaves, not to extend citizenship to everyone born within U.S. borders regardless of the legal status of their parents.
Policy and Sovereignty Arguments:
Some argue from a policy perspective that automatic citizenship encourages illegal immigration. They propose that ending birthright citizenship would serve as a deterrent to illegal border crossing for the purpose of giving birth in the U.S.
Legislation vs. Constitutional Amendment:
There's debate over whether ending birthright citizenship would require a new amendment to the Constitution or if it could be done through Congressional legislation. Proponents for change argue that Congress has the power to define how the "jurisdiction" should be interpreted through legislation, although this would likely be challenged in court. Critics assert that such a fundamental change would need a constitutional amendment to be legally robust.
Legal Precedents:
The Supreme Court case United States v. Wong Kim Ark (1898) has been pivotal, affirming birthright citizenship for children born to legal immigrants. Critics of current birthright citizenship interpret this decision narrowly, arguing it doesn't extend to children of undocumented immigrants.
To implement such a policy change:
Legislation: Congress could pass a law that redefines "subject to the jurisdiction", but this would almost certainly face legal challenges, likely going to the Supreme Court.
Constitutional Amendment: This would provide a clearer legal basis for change but requires a two-thirds vote in both houses of Congress and ratification by three-fourths of the states, which is a high bar.
In summary, the legal theory for ending birthright citizenship centers on a restrictive interpretation of the jurisdiction clause of the Fourteenth Amendment. However, any practical change would involve navigating complex legal and political landscapes.
Here is ChatGPT’s response:
The legal theory for ending birthright citizenship is generally based on the interpretation of the 14th Amendment to the United States Constitution. The 14th 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."
Some argue that the phrase "subject to the jurisdiction thereof" should be interpreted to exclude children born to undocumented immigrants or non-citizens, as they are not fully subject to the jurisdiction of the United States. This interpretation would allow for the elimination of birthright citizenship for children born to non-citizens in the United States.
However, others argue that the plain language of the 14th Amendment supports birthright citizenship for all individuals born on U.S. soil, regardless of the immigration status of their parents. They contend that the intent of the Amendment was to grant citizenship to all individuals born in the United States and subject to its laws, and that any attempt to restrict birthright citizenship would require a constitutional amendment.
Overall, the legal theory for ending birthright citizenship is a complex and contentious issue that involves differing interpretations of the 14th Amendment and the principles of citizenship in the United States.
In a 2018 essay, the Heritage Foundation argued that the 14th Amendment’s “original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.”
Whether birthright citizenship will, in the future, apply to anyone born within the United States or not will ultimately be decided by the U.S. Supreme Court.
However, based on the Supreme Court’s rulings on Roe v. Wade, or the Chevron Deference, anyone who believes birthright citizenship is ‘settled law’ may be in for a surprise.