Connecticut, Massachusetts, and 12 States Sue Trump Over Birthright Citizenship Revocation

Massachusetts Attorney General Andrea Joy Campbell, joined by 12 other state attorneys general, reaffirmed that the Constitution prohibits the federal government from forcing states to enforce federal immigration laws, citing Printz v. United States. In response Trump’s executive order, that threatens to end birthright citizenship, they sued Trump in his official capacity to block the executive order from being enforced.

Is Trump’s Executive Order Legal?

A president may issue executive orders as long as they do not run contrary to the constitution or the law.

Massachusetts and Connecticut are alleging that an executive order that ends birthright citizenship is unconstitutional, therefore unenforceable.

To answer the question of whether the executive order is unconstitutional it’s important to look at the history of the 14th amendment.

The 14th Amendment

At the heart of the 14th amendment lies the Citizenship Clause, which guarantees that “[a]ll 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 Citizenship Clause emerged from a historical context deeply influenced by the movement of peoples—both voluntary and forced—across U.S. borders. From the arrival of immigrants seeking opportunity to the emancipation of enslaved people, the framers of the 14th Amendment recognized the need for a legal framework to guarantee citizenship as an inherent right.

The framers of the 14th Amendment sought to correct the deep flaws in the original Constitution, particularly its failure to protect African Americans and its empowerment of the “Slave Power” through provisions like the Three-Fifths Clause. This context shaped their commitment to creating an amendment that would address racial inequality and prevent future injustices. The amendment was also a direct response to President Andrew Johnson’s resistance to Congressional efforts to shape Reconstruction policy. Unlike the narrower Civil Rights Act of 1866, which relied on Congressional authority under the Thirteenth Amendment, the 14th Amendment offered a sweeping constitutional guarantee that would endure beyond political shifts.

The intellectual foundation of the Citizenship Clause was rooted in anti-slavery ideology and republican principles of equality. The framers debated two competing models of citizenship: ascriptive citizenship, which grants membership based on birth within a nation, and consensual citizenship, based on allegiance and mutual agreement. Ultimately, they embraced jus soli—the principle of citizenship by birthplace. To balance inclusivity with clear legal boundaries, they included the phrase “subject to the jurisdiction thereof,” which excluded narrow groups such as the children of foreign diplomats or members of sovereign tribal nations.

One of the most debated aspects of the clause was its application to Native Americans, who were initially excluded from citizenship because they were considered under the jurisdiction of their tribal governments. This distinction was later addressed through the Indian Citizenship Act of 1924, reflecting the evolving interpretation of the clause and its application to marginalized groups.

The principle of birthright citizenship was further solidified by the Supreme Court in United States v. Wong Kim Ark (1898). The Court ruled that Wong Kim Ark, born in San Francisco to Chinese immigrants, was a U.S. citizen by birth, regardless of his parents’ inability to naturalize. This landmark decision affirmed that the Citizenship Clause guarantees citizenship to all individuals born in the U.S., with few exceptions, including children of foreign diplomats and members of sovereign tribes (prior to 1924).

Despite its clarity, the Citizenship Clause has faced challenges from those seeking to narrow its scope. Critics, particularly in modern debates, have argued against its application to the children of undocumented immigrants. However, legislative history and the framers’ debates reveal a clear intent to apply the clause broadly. For example, Senator Lyman Trumbull explicitly stated during debates that the children of Chinese immigrants—then excluded from naturalization—would nonetheless be U.S. citizens if born on American soil.

The principles of the Citizenship Clause were later codified in federal law through the Immigration and Nationality Act (INA), which reaffirmed that anyone “born in the United States, and subject to the jurisdiction thereof,” is a U.S. citizen at birth. This alignment between constitutional and statutory law underscores the enduring importance of birthright citizenship as a cornerstone of American identity.

Efforts to reinterpret or limit the Citizenship Clause, whether through legislation or executive action, present significant constitutional and moral challenges. The framers of the 14th Amendment sought to insulate birthright citizenship from political manipulation, recognizing it as a fundamental right. Stripping individuals of this right would create a class of stateless people, depriving them of access to education, healthcare, and legal employment while violating the principles of equality and justice enshrined in the Constitution.

“Subject To The Jurisdiction Of”

Anti-immigration proponents often cite the second half of the clause which specifies that to qualify as a citizen, being born in a territory is not enough, but also the person needs to be “subject to the jurisdiction of” America.

The caselaw makes clear that “subject to the jurisdiction of” is intended to apply to anyone who is born in American territory. The specification of this language was to exclude children of foreign diplomats and enemies.

The legislative debates highlighted the framers’ intent to include children of immigrants as citizens, regardless of the parents’ immigration status. For instance, during the debates on the Civil Rights Act of 1866, Senator Lyman Trumbull, a key figure in the drafting of these laws, explicitly stated that children born in the U.S. to immigrant parents, including Chinese immigrants and marginalized groups like the Roma, were undoubtedly U.S. citizens. This reinforces the broad and inclusive interpretation of the phrase.

Moreover, the Supreme Court in United States v. Wong Kim Ark (1898) upheld this interpretation, ruling that the Citizenship Clause guarantees citizenship to all individuals born in the U.S., irrespective of the citizenship status of their parents, as long as they are subject to U.S. laws.

In essence, “subject to the jurisdiction thereof” means being governed by U.S. laws and not owing allegiance to a foreign sovereign or power. This interpretation ensures that the Citizenship Clause remains a robust safeguard for birthright citizenship, consistent with the framers’ intentions and subsequent judicial precedent.

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