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LeftInTX

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11. Coming out of lurking: They are going to be interpreting "subject to the jurisdiction of"

Reply to Fiendish Thingy (Reply #3)

Fri Dec 5, 2025, 08:08 PM

Friday

in the 14th amendment.

It says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof

It doesn't say "All persons born in the United States ARE subject to the jurisdiction thereof"

Hence it's a word salad. Does it mean "All persons born in the United States AND subject to the jurisdiction" mean the same as "All person born in the United States ARE subject to the jurisdiction". For what it's worth, some people consider anyone who is visiting the United States "subject to jurisdiction". Others have a narrower version. And that's what this case is about.

The keyword is "AND". "subject to the jurisdiction" is subject to interpretation. Children of Chinese immigrants and Native American tribal residents were not allowed US citizenship under the 14th amendment until court cases made their way decades later.

Don't get me wrong. I support birth right citizenship, but it is on shaky ground. Sorta like Roe v Wade was.

The 14th amendment was established to provide citizenship to those who were enslaved, therefore "subjects".

However, it didn't address the issue of immigration. And back then citizenship wasn't as much of legality as it is now. Even before the Civil War, white children of European immigrants were considered "citizens" . The Naturalization Act of 1790 only allowed white people to become citizens. (The white requirement was not repealed until 1952) Of course there were non-white citizens in the US, but Latinos were declared white by the Hidalgo treaty in the 1840s and Middle Eastern Christians and numerous other groups went to court and were legally declared "white" earlier in the 20th Century.

The Supreme Court is also going to look at US v Wong Kim Ark.

https://en.wikipedia.org/wiki/United_States_v._Wong_Kim_Ark

It was a case in 1898 that decided birthright citizenship for a Chinese individual. His parents were brought here by the US govt and because they were brought here by the govt, they were "subject to the jurisdiction" of the US because they were "domiciled residents".

Wong Kim Ark, who was born in San Francisco in 1873, had been denied re-entry to the United States after a trip abroad, under the Chinese Exclusion Act, a law banning virtually all Chinese immigration and prohibiting Chinese immigrants from becoming naturalized U.S. citizens. He challenged the government's refusal to recognize his citizenship, and the Supreme Court ruled in his favor, holding that the Citizenship Clause should be interpreted "in light of the common law". The case highlighted disagreements over the precise meaning of one phrase in the Citizenship Clause—namely, the provision that a person born in the United States who is "subject to the jurisdiction thereof" acquires automatic citizenship.

The Supreme Court's majority concluded that this phrase referred to being required to obey U.S. law; on this basis, they interpreted the Citizenship Clause of the Fourteenth Amendment to grant citizenship to children born in the United States, with only a limited set of exceptions based on English common law. The Court held that being born to alien parents was not one of those exceptions.[4][5] The court's dissenters argued that being subject to the jurisdiction of the United States meant not being subject to any foreign power[6]—that is, not being claimed as a citizen by another country via jus sanguinis (inheriting citizenship from a parent)—an interpretation which, in the minority's view, would have excluded "the children of foreigners, happening to be born to them while passing through the country".[7]

The Court stated "subject to the jurisdiction thereof" should be interpreted "in the light of the common law" which had included as subjects virtually all native-born children, excluding only those who were born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces engaged in hostile occupation of the country's territory.[1][113][114][115] The court's majority held that the subject to the jurisdiction phrase in the Citizenship Clause excluded from U.S. citizenship only those persons covered by one of these three exceptions (plus a fourth "single additional exception"—namely, that Indian tribes "not taxed" were not considered subject to U.S. jurisdiction).[4][38] The majority concluded that none of these four exceptions to U.S. jurisdiction applied to Wong; in particular, they observed that "during all the time of their said residence in the United States, as domiciled residents therein, the said mother and father of said Wong Kim Ark were engaged in the prosecution of business, and were never engaged in any diplomatic or official capacity under the Emperor of China".[116]

According to law professor Lino Graglia of the University of Texas, even if Wong Kim Ark settled the status of children of legal residents, it did not do so for children of illegal residents; Graglia asserts that the case weighs against automatic birthright for illegal immigrants because the Court denied such citizenship for an analogous group, namely "children of alien enemies, born during and within their hostile occupation".[178]

Moving to 2025. Trump pens an order. He is sued. He loses at every turn until

June 27th. The birthright citizenship case reached the Supreme Court in a separate case. At that point, the Trump administration did not ask the justices to rule on the substance of the policy, but rather on the narrower question of whether lower courts could issue nationwide injunctions.

In a 6-3 ruling, the justices sided with Trump officials and limited the orders.

On July 10th a case is filed: "Barbara et al vs Trump". Trump appeals the case and it becomes "Trump vs Barbara". However as with many cases before the Supreme Court, it's hard to follow. And there are many twists and turns and probably numerous cases enjoined along the way.
https://www.scotusblog.com/2025/09/how-birthright-citizenship-made-it-back-to-the-supreme-court/
https://www.scotusblog.com/cases/case-files/trump-v-barbara/

The fact that it took the Supreme Court months to decide to take on this case indicates to me they have been studying this fairly intensely. Overturning birth right citizenship will be a huge mess and they know it. However, there are many tweaks. For instance if someone is admitted and is given parole, I believe they sign documents stating that they are "subject to jurisdiction of the United States". Hence, their child would likely be born a US citizen, even if Trump wins. The 14th amendment will still be there. But like Row vs Wade, birth right citizenship that is bestowed on all that born on US soil is on shaky ground. They know that overturning birthright citizenship is going to be logistic nightmare for many states. Hence, they've been sitting there thinking how this is going to work.

This case is all about "AND subject to jurisdiction of the United States" and the definition of "subject to jurisdiction".

https://constitution.congress.gov/browse/essay/amdt14-S1-1-2/ALDE_00000812/

Trumps order is limited to people who have entered unlawfully ( they have not signed papers) and people who are visiting. (I think the visitor thing would be limited. If someone has a traveler's Visa I believe they sign documents about obeying laws etc)

Here is what he is arguing:

The Clause does not, however, grant citizenship to
the children of temporary visitors or illegal aliens. The
plain text of the Clause, its original understanding and
history, and this Court’s cases confirm that the Clause
extends to children who are “completely subject” to the
“political jurisdiction” of the United States, meaning
that they owe “direct and immediate allegiance” to the
Nation and may claim its protection. Elk, 112 U.S. at
102. As this Court has recognized, children of citizens
and of those who “have a permanent domicile and residence in the United States” meet that criterion. Wong
Kim Ark, 169 U.S. at 652, 705. This Court’s earliest
cases interpreting the Fourteenth Amendment explicitly rejected the notion that anyone born in United
States territory, no matter the circumstances, is automatically a citizen so long as he is subject to U.S. law.
Slaughter-House, 16 Wall. at 71-72; Elk, 112 U.S. at 102.

Wong Kim Ark did not hold otherwise. Wong Kim
Ark recognized that the Citizenship Clause guarantees
U.S. citizenship not just to children of U.S. citizens, but
also to children of aliens “enjoying a permanent domicil
and residence” in the United States. 169 U.S. at 653.
That limit was central to the analysis; the word “domicil” appears more than 20 times in the opinion
https://www.supremecourt.gov/DocketPDF/25/25-365/378052/20250926163053178_TrumpvBarbaraCertPet.pdf

I tried researching that Slaughterhouse case, but have no idea how it pertains to this case or immigration, but it did something that wasn't good to the immunity clause of the 14th amendment. It seemed to be a case about a slaughterhouse that was polluting water and who had jurisdiction over the location of slaughterhouses in the New Orleans area (A local government thing and nothing about immigrants is mentioned. I can't tell whether the employees or union members were mostly white or black) ....So, I don't how it pertains to this.

________________

I don't support Trump's order at all. I'm just pointing out that SCOTUS can interpret the 14th amendment without overturning it. From what I understand there was "defacto" interpretation of the Wong Kim Ark case that all born in the US were citizens. Although a few have questioned it, it hasn't been seriously challenged until now. No president or any serious lawsuit has tried to overturn birthright citizenship. However, even Trump is not trying to overturn birthright citizenship of children whose non-citizen parents are legally in the US. Those who are here on worker's visas pay taxes, hence are "subject to the jurisdiction". Many seeking asylum sign papers pledging an allegiance to the US.

This is going to be quite a ride. They would not have sat on it for months if they were not seriously digesting this. Otherwise, they would have rejected it months ago. Any change to citizenship is going to be a logistics nightmare. However, it only applies to those born after Trump's EO. If SCOTUS rules in his favor or partially in his favor, it would likely apply to the effective date of their decision. I believe they they are taking on this case, because they intend to curtail birthright citizenship.

I would like to agree with you, but I'm not very optimistic.

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Highlight:

Birthright citizenship -- the big one is coming one way or the other [View all] Munu Friday OP

I really don't see how they could overturn an Amendment to the Constitution Bayard Friday #1

They can't and they wont Fiendish Thingy Friday #3

Do the majority of them care about being irrelevant? newdeal2 Friday #4

But once Trump is gone, they will definitely care about their power Fiendish Thingy Friday #5

I think the sc has already committed judicial suicide. They just haven't finished kicking yet. Autumn Friday #9

Coming out of lurking: They are going to be interpreting "subject to the jurisdiction of" LeftInTX Friday #11

You're overthinking it Fiendish Thingy Friday #12

You're not being paranoid. Dorothy V Friday #2

Other than the 14th Amendment being pretty clear, it's an EO trying to set laws Buckeyeblue Friday #6

If they touch this (which is about clear as you can be) JCMach1 Friday #7

Not a leap from this to simply removing/denying citizenship to anyone. NotHardly Friday #8

Which is why the court will rule against, and support birthright citizenship. Nt Fiendish Thingy Friday #13

Can you be too paranoid these days? ananda Friday #10