Birthright citizenship is a litmus test for charlatans

There is no intelligent argument for Trump's frontal assault on the Constitution.

Donald Trump signed 62 executive orders in his first 100 hours back in office. The result was a familiar dizziness as headlines raced to keep up; a familiar, creeping dismay. Every few hours, our phones would buzz with little drips of CNN explaining how things were now slightly worse:

• Trump pardons January 6^th rioters

• Trump withdraws from the Paris Climate Accords

• Trump withdraws from World Health Organization

• Trump suspends TikTok ban, with unclear legal authority

• Trump renames the Gulf of Mexico the Gulf of America

• Trump reverts Mount Denali’s name to Mount McKinley

• Trump freezes federal hiring

• Trump ends all federal DEI programs and fires all federal workers with jobs remotely related to DEI

• Trump ends federal remote work, but appears unclear on the difference between that and telework, and it also violates some federal union contracts, so we’ll have to see how that shakes out—but in any case, he’s clearly trying to make working in the federal government as difficult as possible so that civil servants will quit en masse.¹

• Trump declares an “invasion” across the Southern border and mobilizes the military to repel it

• Trump orders end to US Refugee Admission Program

• Trump orders end to birthright citizenship

• Trump threatens tariffs on Colombia unless they accept deportees

• Elon Musk did a Nazi salute! Twice! Or did he? And if he did, is that because he’s a Nazi sympathizer, or because he’s an infantile troll with the humor and social skills of a 13-year-old on 4Chan? Or both?²

• Trump says there are only two genders

• Trump ends tax incentives to buy electric vehicles

• Trump authorizes oil drilling in the Arctic National Wildlife Refuge

• Trump threatens to invade Greenland

• Trump threatens to seize the Panama Canal—et cetera, et cetera

If you’re anything like me, the effect of all this is disorienting and demoralizing. Any president’s first week is hectic, but Trump’s whole first term felt much the same way. The pace of the scandals gets exhausting. The volume of shit he throws at the wall is hard to even keep track of, let alone engage with constructively. I’ll have to pick my battles.

This week, the battle that calls to me is the EO on birthright citizenship—a headline I’d rephrase as: “Trump flouts settled law and dares the courts to do something about it.”³ The rest of this post will explain why Trump’s order is illegal; why it would be an awful policy even if it were legal; and why I hold a special contempt for anyone pretending it is legal.

The legal non-controversy

Birthright citizenship has been law in the United States for almost all of its history. English common law established it in 1608, and American courts assumed or upheld the practice in 1824 (M’Creery’s Lessee v. Somerville), 1830 (Inglis v. Trustees of Sailor’s Snug Harbor) and 1844 (Lynch v. Clarke). The last of these cases confirmed that citizenship extended even to children of aliens who were only visiting the country temporarily.

Sadly, birthright citizenship briefly went away in 1857, when the Supreme Court ruled in Dred Scott v. Sandford that the Constitution did not extend citizenship to black people. Maybe you’ve heard of Dred Scott before! It is widely regarded as the worst decision in Supreme Court history, both legally and morally, and played a key role in the start of the Civil War four years later.

After the Civil War, Congress pointedly overruled Dred Scott by passing the 14^th Amendment. The first sentence of the Amendment, known as the Citizenship Clause, reads as follows:

“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.”⁴

This whole fake controversy revolves around the boldfaced bit.

The boldfaced bit implies the existence of persons who are born in the United States, but are not “subject to the jurisdiction thereof.” Trumpers who’ve thought about this for ten seconds want you to believe that this includes the children of illegal or temporary immigrants, but they are mistaken. Thankfully, it is overwhelmingly clear—from the Congressional debates of the time, from the literal meaning of the text the framers carefully chose, from centuries of precedent before the amendment, and from multiple Supreme Court rulings since—who these persons are, and who they are not.

Because jurisdiction is the authority to make and enforce law, the Citizenship Clause applies to anyone born in the United States who is bound by U.S. law. Its framers envisioned exactly two groups of people who could be born within U.S. borders and yet not bound by U.S. law: children of foreign diplomats, and children born into Native American tribes.

Emissaries from foreign governments enjoy diplomatic immunity on U.S. soil, such that they are not subject to U.S. law and cannot be prosecuted for breaking it.⁵ And at the time of the Amendment, Native American tribes governed themselves, were untaxed, and made treaties with the United States as separate nations, often on geographically segregated reservations. Thus, neither group was bound by American laws. In the Congressional debates surrounding the 14th Amendment, the framers’ explicitly confirmed their intent to exclude both groups from citizenship.

They did not intend to exclude anyone else, however. The record is clear on that, and anyone misquoting Senator Jacob Howard to pretend otherwise is full of shit.⁶

Most of the Senate debate on this section of the amendment revolved around which phrasing would exclude native tribes while catching everyone else—explicitly including the children of foreign nationals.⁷ This is equally true of the amendment’s supporters and opponents. Senator John Conness of California said he favored the eventual text because it would confirm citizenship for the children of Chinese migrants in his state. Inversely, Senator Edgar Cowan of Pennsylvania opposed the text because it would extend citizenship to the children of Romani “gypsies” in his state, against whom he was bigoted. They disagreed about whether race-neutral birthright citizenship was good, but nobody disputed that it was an obvious implication of the text which was subsequently ratified.

As soon as the Supreme Court was called to interpret the Citizenship Clause, it explicitly and repeatedly confirmed this implication. The clearest of several precedents came in 1898 through United States v. Wong Kim Ark. Wong Kim Ark was born in San Francisco to Chinese parents around 1873. In 1889, he accompanied his parents on a trip back to China, where they (but not he) decided to stay. In 1890 he returned to the U.S. and was readmitted without incident. But he visited his parents again in 1894, and on his return in 1895, he was denied permission to enter the U.S. under the Chinese Exclusion Act. Despite his birth in the United States, customs officials argued that Wong was not a U.S. citizen due to his alleged allegiance to a foreign power.

In a 6-2 ruling, the Supreme Court disagreed. It ruled:

“The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”

Wong Kim Ark also established that birthright citizenship, like all constitutional rights, persists even if Congress passes laws that seek to prohibit a nationality’s migration or naturalization. And a subsequent Supreme Court case (Plyer v. Doe, in 1982) ruled unanimously that even illegal aliens were within the jurisdiction of the United States while living here. All nine justices agreed:

“no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Given this context, you don’t need to be a lawyer to understand how simply defiant of federal law Trump’s executive order was. “Argument” is too strong of a word to describe what his order asserts:

“Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

All of this is pure horseshit, conjured from thin air without the faintest legal, rational, or historical justification. It defies explicit rulings to the contrary and relies on an incoherent understanding of the word jurisdiction.⁸ Which is why the first federal judge to look at it deemed it “blatantly unconstitutional” and blocked its enforcement. CNN reports that the Judge (John Coughenour, incidentally appointed by Ronald Reagan) reacted colorfully:

“I have been on the bench for over four decades. I can’t remember another case where the question presented was as clear,” Coughenour said.

“Where were the lawyers” when the decision to sign the executive order was made, the judge asked. He said that it “boggled” his mind that a member of the bar would claim the order was constitutional.”

It would boggle my mind too if I didn’t know of so many members of the bar who weaponize the law in bad faith to run political cover for their political tribe. I would name names, but that would be unfair to John Yoo, Adrian Vermeule, Rudy Giuliani,⁹ and Hans von Spakovsky.

Why it matters

I get that most Americans do not care about constitutional law. This includes most Democrats. In a nod to those people, here are five quick reasons that doing away with birthright citizenship would be bad even if it were legal:

1. Doing away with birthright citizenship would create a confusing and expensive administrative mess. Instead of simply showing a birth certificate to prove your citizenship, folks would somehow need to prove their parents were also citizens, going back some arbitrary number of generations. Alternatively, there could be some centralized citizenship registry, but it would need enough manpower and a reliable enough process to determine citizenship at birth—for 10,000 births a day! Either approach would require massive new bureaucracies and logistical hassles for citizens.

2. Doing away with birthright citizenship would vastly increase, rather than decrease, the number of undocumented people in the country (by about 4.5 million by 2050, to be precise). This creates second-order problems like pushing more people towards unlicensed driving or under-the-table employment.

3. Doing away with birthright citizenship would inhibit the assimilation of immigrants and their descendants, and probably increase violent crime and political radicalism while worsening health and education outcomes, as shown by detailed research of similar situations in Europe.

4. Doing away with birthright citizenship would create a permanent underclass of stateless people deprived of equal rights in their only home due to no fault of their own. Blaming children for the sins of their parents is quintessentially un-American—and since their descendants would be similarly deprived, we’d eventually be blaming people for the sins of their grandparents, etc. The whole system would recreate the hereditary privileges that the pilgrims fled Europe to escape, and also entrench racial inequalities similar to those that the 14^th Amendment aimed to fix.

5. Doing away with birthright citizenship is a solution to a nonexistent problem. Evidence that birthright citizenship motivates illegal immigration is mixed at best. Children of illegal migrants cannot sponsor their parents’ green cards until age 21, and even then, the parents would have to spend 10 years outside the country before they qualify. Desperate people coming across the southern border are typically not planning that far ahead—they’re looking for jobs to escape poverty right now, and often see children as an obstacle to that plan. Besides, even if birthright citizenship were motivating slightly higher levels of illegal migration, that’s not really a problem! Migration is overwhelmingly beneficial to the United States and most laws restricting it are irrational and unnecessary.

Quacks, charlatans, and crooked lawyers

Reasonable people can disagree on some of the above. Many countries do not have birthright citizenship, and they make it work. If your position on the legal argument is neutral but you think birthright citizenship is just bad policy, you are not necessarily a charlatan.

But if you have read this far in the piece and you still tell me that “birthright citizenship is unconstitutional,” it is not merely that I disagree with you: I don’t believe you. You are not just wrong; you are lying, to yourself at least. I cannot reason you out of a position that you did not reason yourself into.

This is one thing for people with no legal interest or background.¹⁰ But what grinds my gears is the assholes who pretend to care deeply about the law, while transparently abusing and disrespecting it. The proud members of the Federalist Society—founded on the conviction that “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be”—who expose that conviction as a farce the moment they touch power. That I have no patience for, partly because I hold that conviction myself, and their hypocrisy tars my name by proxy.

When I was an undergrad, I interned at the Federalist Society. This was before Trump, and the Society’s reputation was not quite as bad as it is now. But even then, there was an obvious schism bubbling beneath the surface. Some in the Society were principled textualists: civil libertarians, advocates of small government and the separation of powers, etc. They had my respect. And then there were the social conservatives whose life mission was to overturn Roe v. Wade by any means; the folks who felt persecuted by most smart people disagreeing with them, or reduced the whole exercise of constitutionalism to another front in the culture war.

There’s a special place in hell for people who champion legal arguments they are smart enough to disbelieve. John Yoo did this with the torture memos. Adrian Vermeule does it with Catholic integralism. Rudy Giuliani did it with the election lawsuits that got him disbarred. And now Hans von Spakovsky, famous peddler of election fraud bullshit, is doing it on Fox News with birthright citizenship. The fact that every one of these slimy shits were active in the Federalist Society has done more to discredit conservative legal thinking than the strongest liberal arguments ever could. They disgrace themselves.

What makes Trump uniquely dangerous is not that his policies are uniquely bad. It is that they are uniquely authoritarian; uniquely destructive of essential safeguards; uniquely disdainful of anything that would restrain him. The law exists to restrain him, so lawyers serving him are at constant war with the thing they’re entrusted to uphold. They betray their oath and country every day.

To disbar these men would be too kind. Their life’s work is a chain of lies—not mistakes, lies—in the service of evil. They are paid to dismantle the only parts of our country worth preserving, the parts that once made it truly exceptional. They swap our noble liberal principles for bad theology and blood and soil racism, and charlatan is the nicest word I have for them.

1. I may be slightly editorializing these headlines.

2. Not this one, though, that was verbatim.

3. To be sure, revoking an explicit constitutional right by executive fiat may not be the week’s most directly harmful policy. Early candidates for that honor include potentially killing millions of children by cutting the budget for PEPFAR and other effective aid programs; rescinding Biden’s safeguards on the development of artificial intelligence; or supporting the EATS Act, which makes it illegal for states to even limit the depravity of factory farms.

But Trump’s greatest threats—the ones we all tried to warn about—have always been systemic. And while several of his orders are likely illegal, none are such flagrant middle fingers to the rule of law as a whole as the birthright citizenship order. I worry that burying that policy (and it’s inevitable judicial smackdown) in a barrage of decoy flares helps Trump test the limits of what he can get away with when he simply ignores a court’s rulings.

4. As Wikipedia explains, “This clause was a late addition to the Amendment, made in order to clarify what some of the framers felt was already the law of the land: that all those born to parents beholden to U.S. law ("even of aliens") were guaranteed citizenship.” [The “even of aliens” comes from an 1830 case called Inglis v. Trustees of Sailor’s Snug Harbor, which used that phrase explicitly]. The clause “was drafted in response to Senator Benjamin Wade's concern that, although the question of citizenship was "settled by the civil rights bill, and, indeed, . . . was settled before," there was a danger that "the Government should fall into the hands of those who are opposed to the views that some of us maintain." Thus it was Congress's obligation to "fortify and make [the citizenship guarantee] very strong and clear."

5. DC pro-tip: this is why the black SUVs drive like maniacs.

6. Senator Jacob Howard introduced the 14^th Amendment. During one debate he said:

“This amendment which I have offered, is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

Charlatan quacks who are arguing in bad faith will sometimes pretend that this boldfaced bit is a list of three separate groups of people who the 14^th Amendment does not include: foreigners, aliens, and people who belong to the families of ambassadors or foreign ministers. Both the grammar of the sentence and the context of the surrounding debate straightforwardly disprove this.

There is no “and” in the boldfaced section because it is describing one single group of people: persons who belong to the families of ambassadors or foreign ministers, who therefore also happen to be both foreigners and aliens. Foreigners and aliens meant the same thing, so it would not make sense to list them as separate categories anyway. In context, “aliens” was likely a rhetorical interjection underscoring the word “foreigners,” to emphasize Howard’s characterization of the single group of people to whom he referred.

As importantly, the speakers around Howard made it clear from their comments that they understood the Amendment to include the children of aliens, even as they agreed with Howard and voted to ratify his text. And of course, the Supreme Court put the matter to bed in Wong Ark Kim anyway. To pretend that your misinterpretation of a stray line of a transcript from 1866 overrules a) the text of the amendment itself, b) centuries of precedent before the amendment, c) the contemporaries in the room with Howard, who surely had a better grasp of his syntax than we can, and d) the legal experts who ruled on that exact question 22 years later, is to put on the charlatan hat.

7. To get really down in the reeds…the reason the framers were debating this in such detail was that the Citizenship Clause used slightly different language than the Civil Rights Act of 1866, which read “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.” To say someone is NOT subject to any foreign power is arguably different than to say that they ARE subject to the jurisdiction of the United States. If someone could be subject to both, the first phrasing would exclude them while the second would include them. The Senators noticed that difference and intentionally chose to go with the more inclusive version. While many framers felt the meanings were identical (presumably because they understood “jurisdiction” as an exclusive category), the decision to go with the inclusive phrasing can leave zero doubt that the children of aliens were meant to be included, even if you tried to define jurisdiction in some nebulous way that allows for obligations to multiple governments.

8. If it were true that the persons described by Trump’s fabricated criteria were not subject to the jurisdiction of the United States, this would imply that they are not subject to U.S. laws—including immigration laws! To attempt to deport someone is to assert that they are subject to your jurisdiction after all.

9. Well, former members of the bar, anyway.

10. Lest someone accuse me of demonizing half the country, I will switch to merely insulting them instead: most people are too stupid for this criticism to apply to them. This sounds harsh and smug, but I think it’s true of both the left and the right. Most people either ignore the legal debate entirely, or cannot grasp the difference between law and policy, or unthinkingly regurgitate whatever superficial soundbite about the law that they hear their leaders recite. They are hopelessly confused, but they don’t know any better.