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A Big TWOfer Heard in the Supreme Court Today
From:
Peggy Sands Orchowski -- Immigration Expert Peggy Sands Orchowski -- Immigration Expert
Washington, DC
Thursday, May 15, 2025

 

 

A Big TWOfer Heard in the Supreme Court Today

By Margaret Orchowski

SCOTUS – the Supreme Court of the Unoited States - held a special session for oral arguments this morning, on two contentious but related cases: The first is President Trump's executive order to limit birthright citizenship only to permanent legal immigrants.

 

The second was about a procedural question regarding the increasing use of a single federal district judge anywhere to solely stop an executive order nationwide – a procedure called universal or national injunctions.

 

About Birthright Citizenship

The duty for Congress to decide who gets US citizenship is in the U.S. Constitution.

 

Birth-right citizenship is embedded in the first sentence of the 14th amendment passed in 1868 after the civil war.  It clearly states that there are TWO requirements that need to be fulfilled in order to be granted birthright citizenship: 1) be born in the territorial United States; 2) be subject to its jurisdiction.  

 

Four groups did not meet that requirement in 1868. Two were changed over time: one by Congress (the Indian Voting Act of 1921) and one by the Supreme Court in 1898 in Wong Kim Ark vs, the US a narrow decision determining that the son of two legal permanent resident immigrants was a citizen.

 

Two more groups remain excluded from birthright citizenship: 1) babies born to diplomats with full diplomatic immunity; and 2) babies born to "invaders".

 

President Trumps executive order adds a third group that would be excluded: children born to foreign nationals who are either illegally living in the U.S. (aka: unauthorized, unlawful, undocumented) or are here legally under temporary permits (student, tourists, temp workers, temporarily protected asylees, DACA and parolees and the like -tho NOT refugees who get green card permanent residency).  It echoes over a decade of proposed legislation including HR2 of the 112th Congress. To become law, it would have to be passed by Congress. But it doesn't need a constitutional amendment to change who is subject to the jurisdiction.

 

Universal Injunction

Three federal district judges have declared the executive order to be unconstitutional. They argue against an attempt to "ban" or "end" birthright citizenship all together. But that concept, those words "ban" and "end", do not exist in the two-page Executive Order.  It is clear that the order involves only the second requirement of birthright citizenship -- – who is subject or not to the jurisdiction of the United States – not the first, the existence of birthright citizenship in general for some children but not all, who are born in the U.S.A.

 

Arguments for and against the two cases were presented in court today pretty much along partisan lines. They all appear to be extremely vulnerable to political bias and to creating havoc if only granted in a patchwork of states. The increasing numbers of universal injunctions appear to be a result of the increasing number of executive orders issued by Mr. Trump.

 

A decision by SCOTUS is expected sometime in June. It is likely that the supreme court may adjudicate some limit on universal injunctions, but leave the particulars of who qualifies for "under the jurisdiction" status to politics.

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Jan. 27, Georgetowner online                     ESSAY about birthright citizenship.                        645 words

 

Executive Order Intends io Limit Birthright Citizenship, Not End It

By Margaret Orchowski

 

Please don’t panic or exaggerate the birthrights citizenship executive order. The much expected EO does not end birthright citizenship. It limits it. That does not take a constitutional amendment.  In fact it’s been changed by Congress and by a Supreme court decision several times in the past.

 

Here's the first sentence of the 14th amendment:: “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.” 

 

The definitive word in that sentence is AND!  If the framers wanted anyone and everyone born in the US to be citizens they would not have added an “and” clause, AND means (if you recall grammar lessons) also, plus, as well as. 

 

 As you can see, the first sentence of the 14th amendment states clearly that anyone claiming birthrights citizenship must fulfill TWO CONDITIONS:

1.     Be born in the United States

2.     Be subject to the jurisdiction of the United States.

 

The order would make ineligible for birthright citizenship anyone born in the U.S. whose parents have no lawful or legal authorization to be here or who are in the US on limited, temporary non-immigration permits such as foreign students and tourists.  

 

Changing who is eligible or not for birthrights citizenship has actually happened in the past via Congressional legislation and also a ruling of the Supreme Court.  In addition, Trump’s executive order reflects at least 15 years of proposals considered by Congress, one as HR1 (in the 112thCongress.

 

The 14th amendment was ratified on July 9, 1868 to “rightly repudiate the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race”, as stated in Trump’s executive oder.  There were no national immigration laws until the 1880s; hence the amendment at the time did not address legal permanent, temporary or illegal immigration status of the birth parents.

 

But in 1868, according to the Congressional Research Office, there were FOUR defined groups of people in the United States who were NOT considered to be under the jurisdiction of U.S. laws and whose birth children were not allowed citizenship nor the right to vote.  

 

The jurisdictional status of two of these groups were changed over time.  The children of legal permanent Chinese immigrants were ruled by the Supreme Court in 1898 in U.S. vs. Wong (a very narrow ruling) to be under the jurisdiction.  In 1921 American Indians born and raised in a recognized Indian Nation were given the right to vote and hence citizenship by Congress in the 1921 Indian Voting Rights Act.

 

But two other groups remain excluded to this day: 

1)     the children of diplomats to the U.S, with immunity from U.S. laws; and 

2)     a rather nebulous universal rule according to the U.S., Congressional Research Office that the children born of recognized invaders are not under the jurisdiction of the invaded state.

 

Since 2010, Congress has addressed proposals to exclude birthright citizenship from TWO additional groups:  

1) children born of birth tourists (visitors who come on a three month permit with the sole purpose of getting citizenship for their child with no intention or right to immigrate and contribute to the U.S,) and 

2) children born of parents BOTH of whom are illegally in the country and have no right to be here,  In 2011 this 2 page bill was HR1 in the new Republican dominated 112th congress.

 

Clearly President Trump’s executive order is not new, unconstitutional nor in any way racist. Read it here (2+ pages only) .  https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/

 

It may however be challenged and perhaps decided by the Supreme Court, for instance on whether or not illegal immigrants are under the jurisdiction of the U.S. or not.

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Margaret Orchowski is a credentialed Congressional reporter on immigration and author of two recent books (Nov 2024) on how immigration laws and policies evolved in the U.S.: “The 5 Basics Everyone should Know About Immigration” and a new paperback updated edition of “The law That Changed the Face of America” 

  

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