Birthright citizenship headed to SCOTUS?

Birthright citizenship headed to SCOTUS?
By Terry A. Hurlbut
Birthright citizenship is about to get another Supreme Court review, sooner or later. Since President Donald J. Trump signed an executive order ending the practice, several district judges have already ruled against it. Now a Circuit Court of Appeals has refused to stay an injunction against that order. This could allow the Second Trump Administration to apply to the Supreme Court for an emergency vacatur. But CNAV repeats its earlier conclusion: Congress must act to end the practice. Only with an Act of Congress at issue, can we have assurance that the courts will rule on its merits.
What is birthright citizenship?
Birthright citizenship is any practice that confers citizenship on a newborn child by virtue of his birth. The concept is as old as civilization itself. Paul of Tarsus famously claimed Roman birthright citizenship when Claudius Lysias, Tribune and Commander of the Garrison of Jerusalem, was about to have the evangelist examined under the lash. (Acts 22:23-29.)
But that early form of birthright citizenship followed jus sanguinis – the Law of the Blood. Under that maxim, a newborn infant inherits the citizenship (or subjecthood) of his parents.
Later traditions, including especially English Common Law, added jus soli – the Law of the Soil. By that rule, any child born on lands over which the king held dominion, became a subject of the king. That became the accepted practice in the original British colonies. After America won her independence, she continued both practices – jus soli and jus sanguinis.
In considering eligibility to the office of President, the Framers of the Constitution looked to another authority. That authority was Le Droit des Gens (The Law of Nations) by Emmerich de Vattel. He defined a narrow category of natural born citizen as one qualifying for birthright citizenship under both rules. Thus, to have this extra-special distinction, it was not enough for the parents to be themselves citizens, or to be born on the native soil. A natural born citizen is born in-country to two citizen parents. (“In-country” also includes “on-station” for children of diplomats, military service members, and the like.)
§212. Citizens and natives. The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see, whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.
The particular question of citizenship from soil but not from blood
But Vattel did treat the condition of children born in a country of which their parents are not citizens:
§215. Children of citizens, born in a foreign country. It is asked, whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed. By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§212); the place of birth produces no change in this particular, and cannot of itself furnish any reason for taking from a child what nature has given him; I say “of itself,” for civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also.
And that covers the specific case of Wong Kim Ark, the index plaintiff in the American birthright citizenship case. U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). The Supreme Court held that the children of lawful permanent residents of the United States, are citizens of the United States by birth.
Amendment XIV Section 1 begins:
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.
From Vattel (Section 215): in the absence of any other statute, that applies to the children of lawful permanent residents. (“Fixation of abode” means establishment of lawful permanent residency, not necessarily the seeking of voting citizenship.) In any case, the Court relied on English common law, and suggested that – again, absent a statute – a child born in the United States, to permanent lawful residents, is a citizen by birthright.
Judge Andrew Napolitano, once of the Superior Court of New Jersey (Essex Vicinage), has repeatedly held that even “lawful permanent residency” does not matter and is not required. On the other hand, Lauren Witzke, former Senate candidate from Delaware, says the Law of the Soil should never apply.
In fact, only in the United States and Canada does Law of the Soil birthright citizenship presently apply. Even the United Kingdom has abolished it. If they can, so can we – but the question becomes, what is required to make that abolition “stick”?
Donald Trump tries to end birthright citizenship by Executive Order
President Trump, on his first day in office, signed a plethora of Executive Orders. Among them: his Executive Order Protecting the Meaning and Value of American Citizenship. His order declares that the following children would no longer enjoy birthright citizenship:
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.
This order does not apply to the children of lawful permanent residents. Thus the President will eventually ask the Supreme Court to distinguish the Wong case. Its basic holding can remain intact even if the Executive Order stands.
But in addition, Rep. Brian Babin (R-Texas), on the day after the Inauguration, introduced the Birthright Citizenship Act of 2025. This Act (HR 569) would amend Title 8, U.S.C., Section 1401, by adding this definition of “subject to the jurisdiction”:
(b) DEFINITION .—Acknowledging the right of birthright citizenship established by section 1 of the 14th amendment to the Constitution, a person born in the United States shall be considered “subject to the jurisdiction” of the United States for purposes of subsection (a)(1) if the person is born in the United States of parents, one of whom is—
(1) a citizen or national of the United States;
(2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or
(3) an alien with lawful status under the immigration laws performing active service in the armed forces (as defined in section 101 of title 10, United States Code).
At present, that phrase subject to the jurisdiction has no definition. So liberal jurists and scholars assume that “subject to the jurisdiction” means subject to our civil and criminal laws. Which applies to anyone who sets foot in this country, except “immune” diplomats.
Thus far, HR 569 has fifty co-sponsors.
Last year, President Joe Biden, appearing on Univisión (Ooh-knee-vee-ZYOWN), told his host:
If they ended birthright citizenship, you and I wouldn’t be citizens!
No one has ever tried to revoke jus sanguinis, so that sentence is a complete non sequitur. Furthermore, many have abused jus soli, including the Chinese Communist Party. They operated a “birth tourism motel” in Orange, California – which the city fathers shut down in 2020.
The Executive Order in the courts
The minute Trump signed his Executive Order, the American Civil Liberties Union filed suit, at first in New Hampshire. Separately, eighteen Democratic State Attorneys General filed their own lawsuit. From their complaint:
The President has no authority to rewrite or nullify a constitutional amendment or duly enacted statute. Nor is he empowered by any other source of law to limit who receives United States citizenship at birth.
On January 23, Judge John C. Coughenour of the U.S. District Court for the Western District of Washington State (Seattle Division) issued the first Temporary Restraining Order at issue. Four particular Attorneys General (of Washington, Oregon, Illinois and Arizona) brought this action. State of Washington v. Trump, 2:25-cv-00127. According to NewsNation, the judge became terrifically angry with the Justice Department attorneys for trying to defend the EO.
Trump vowed to appeal. Normally one does not appeal Temporary Restraining Orders, but Trump didn’t have to wait long. On February 6, Judge Doughenour issued a preliminary injunction, which is appealable. Trump did appeal. State of Washington, et al., v. Trump, et al., 25-807, in the Court of Appeals for the Ninth Judicial Circuit. This morning a three-judge panel (William C. Canby, Milan D. Smith, and Danielle J. Forrest) voted 3-0 not to grant an emergency stay of Judge Coughenour’s injunction. In her concurrence, Judge Forrest agreed that emergency relief was not appropriate. But she encouraged the Court to expedite the hearing and oral argument process. She further observed that she and her colleagues constituted a motions panel, not the merits panel that alone could do the case justice.
Separately, a judge in the New Hampshire case has issued his own injunction. A similar injunction has come down in Massachusetts.
An interstate compact to preserve birthright citizenship
The Gateway Pundit observes that twenty-two “blue States” have formed an informal pact to resist President Trump on birthright citizenship. The Heritage Foundation somehow obtained a written document spelling this pact out. Tellingly, this document is dated November 14, 2024 – nine days after the election. With one exception: on Inauguration Day, the Chief of Strategic Advocacy for San Francisco signed the document. The document identifies a “Common Interest Matter” of “developing potential litigation to challenge executive action relating to ending or curtailing birthright citizenship.”
The very existence of that document indicates an interest in recognizing, as citizens, the children of illegal aliens. That suggests that the Democratic Party believes it cannot rely on expanding or even maintaining their ranks by natural means.
We have obtained a secret agreement between 22 blue states, DC, and San Francisco, signed beginning on November 8, 2024. This agreement, just 3 days after President Trump's landslide election win, shows that these resistance actors began, as a matter of absolute urgent top priority, plotting their resistance to President Trump's anticipated actions to end birthright citizenship.
Despite the mandate from the American People to end the border crisis and return immigration enforcement to the United States, politicians instead acted to frantically preserve their perceived political gains of the Biden Border Crisis. Their top priority was not gas, groceries, public safety, or any other matter of concerns of their citizen constituents, but instead a raw political calculus to ensure that the future children of the illegal aliens that entered during the Biden Border Crisis could turn into voters.
Instead of trying to win back American voters, they seek to create new ones to replace them on the back of the worst border crisis in American history.
https://x.com/OversightPR/status/1889110830978834727
The States (and other entities) involved, in the order of signing, are:
1. Arizona,
2. California,
3. Colorado,
4. Connecticut,
5. The District of Columbia,
6. Delaware,
7. Hawaii,
8. Illinois,
9. Massachusetts,
10. Maryland,
11. Michigan,
12. Minnesota,
13. New Jersey,
14. Nevada,
15. New York,
16. Oregon,
17. Rhode Island,
18. Vermont,
19. Washington,
20. New Mexico,
21. Wisconsin,
22. Maine,
23. North Carolina, and
24. San Francisco.
Analysis
Obviously we see the lengths to which the Democratic Party and member officials will go, to preserve (or regain) power. They know their birth rate will remain lower than that for Republicans anyway. So they are trying to import extra voters through a porous border. That also explains their screaming about measures to close the border.
Beyond that, the Supreme Court is not likely to grant emergency relief, should the Trump administration seek it. The Institutionalists, in the interest of preserving Court prerogatives, will tell the Administration, “Come back when you have a verdict from a merits panel at the Ninth Circuit.” The Liberals, for their own reasons, will sign on to this. Tellingly, one Motions Panel member urged her colleagues to hurry up the process. (Judges Canby, Smith and Forrest owe their respective appointments to Presidents Carter, Bush Younger, and Trump. Judge Canby is in fact “Senior.”)
All of which suggests that the administration should press its appeals – and support Rep. Babin’s new Birthright Citizenship Act. A statute will be far more difficult for the twenty-four parties to that interstate compact to oppose. It would for the first time define what “subject to the jurisdiction” means. Therefore it would provide a substance the Wong court did not have.
The current argument against Trump is that Presidents don’t get to define birthright citizenship. How his opponents will react when Congress weighs in on the issue, will be interesting to watch.
Link to:
The article:
https://cnav.news/2025/02/20/news/birthright-citizenship-headed-scotus/

Vattel’s Law of Nations:
https://constitutioncenter.org/the-constitution/historic-document-library/detail/emmerich-de-vattelthe-law-of-nations-1758

U.S. v. Wong Kim Ark:
https://www.law.cornell.edu/wex/united_states_v._wong_kim_ark
https://www.law.cornell.edu/supremecourt/text/169/649

The Trump EO:
https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/

Brian Babin’s bill:
https://www.congress.gov/bill/119th-congress/house-bill/569?s=1&r=34
https://www.congress.gov/119/bills/hr569/BILLS-119hr569ih.pdf

The Washington Case:
At District level:
https://www.courtlistener.com/docket/69561931/state-of-washington-v-trump/
At appellate level:
https://www.courtlistener.com/docket/69621321/state-of-washington-et-al-v-trump-et-al/

The information interstate compact to preserve birthright citizenship:
https://oversight.heritage.org/Blue_State_CIA(Birthright).pdf
https://x.com/OversightPR/status/1889110830978834727

Declarations of Truth:
https://x.com/DecTruth

Declarations of Truth Locals Community:
https://declarationsoftruth.locals.com/

Conservative News and Views:
https://cnav.news/

Clixnet Media
https://clixnet.com/