Althouse: "Trump Might Have a Case on Birthright Citizenship."

December 5, 2025

"Trump Might Have a Case on Birthright Citizenship."

That was the title of a post last February.

You might want to revisit that today, because "Supreme Court agrees to hear Trump’s challenge to birthright citizenship" (SCOTUSblog).

53 comments:

Greg The Class Traitor said...: Note: SCOTUS today granted "certiorari before judgment".

If they were just going to nuke it, they would have forced Trump to go through the lower courts and lose. That they're taking it directly means they're taking it seriously; 12/5/25, 4:50 PM
RCOCEAN II said...: They're taking it to put that baby to rest. The idea that Roberts or ACB would side with Trump is absurd.; 12/5/25, 4:50 PM
Political Junkie said...: I agree with Greg and RC2, this case is going down, even though I wish it was not. Birthright citizenship causes many negative outcomes.; 12/5/25, 4:55 PM
Rick67 said...: My youngest sister was born in the UK. She was born several years after they ended a rule that would have given her dual citizenship. She is a United States citizen because that is what her parents are.

I worked with internationals for eighteen years. I have a soft spot for people from other nations. And yet I think birthright citizenship is strange and allows people to take advantage of our hospitality.; 12/5/25, 4:55 PM
tim maguire said...: This is one I hope Trump loses. The only reason anchor babies are a problem is because the family gets to stay to raise the citizen baby. The better approach is to send the baby home with its deported parents. Let him/her come back if they want (alone) when they’re 18.; 12/5/25, 4:56 PM
Greg The Class Traitor said...: And they SHOUDL take it seriously.

Before 1925 and the passage of the Indian Citizenship Act, Native Americans who were born off the reservation, to Native American parents who also lived off teh reservation, were still denied US citizenship. Why?
Because within 26 years of the passage of the 14th, in Elk v. Wilkins (1884), SCOTUS ruled that
"Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government."

It required a Congressional act to change that.

Illegal aliens, for that matter ANY aliens not int he US under "legal permanent resident" status, are just as much NOT "subject to the jurisdiction thereof" as were those Indians.

Wong Kim Ark 1: was about the child of LPRs & 2: was 30 years after ratification of the 14th, so is outside the "this is what the generation that passed the 14th thought" window; 12/5/25, 4:57 PM
Greg The Class Traitor said...: Finally, there were probably hundreds of kids born to foreign tourists while they were in the US. To the best of my ability to find out, not even one of those kids ever managed to get US citizenship from being born here. Certainly there were NO Us passports issued to such children between when the 14th was ratified, and when Wong Ark Kim was handed down.

So it appears pretty clear that the generation that passed the 14th did NOT think it created birthright citizenship for the children of foreigners in here on some basis other than legal permanent resident.

Which means that it should be dumped; 12/5/25, 5:00 PM
Greg The Class Traitor said...: If you believe in birthright citizenship, and believe it's actually legitimate, then find an example of it happening between 1868 and 1883. All you need is one case. but if you can't find it, your position is not valid; 12/5/25, 5:02 PM
RideSpaceMountain said...: Immigration was a planned destabilization strategy on a global scale. Martin Van Creveld was right.; 12/5/25, 5:03 PM
Mason G said...: "allows people to take advantage of our hospitality."

I'd call taking money from working Americans to give as welfare benefits to illegal aliens with anchor babies something other than "hospitality".; 12/5/25, 5:04 PM
Eva Marie said...: It should at least be confined to children of parents who are legal residents of the US; 12/5/25, 5:07 PM
john mosby said...: From the article: "The United States is one of roughly 30 countries, including Canada and Mexico, that offer automatic citizenship to nearly everyone born there."

That's how we can annex them! Get thousands of MAGA moms to cross the borders and give birth. 18 years later, the kids can be the swing votes for unification referenda. CC, JSM; 12/5/25, 5:11 PM
Tom Locker said...: I absolute guarantee you that every child of foreign diplomats who are born in this country get exactly the same type of birth certificate as everyone else born in that jurisdiction. They all can use that certificate to get a USA passport - no questions asked.; 12/5/25, 5:20 PM
Wince said...: 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.

My guess: As a compromise to cement a majority, SCOTUS will say congress gets to legislate who is and is not "subject to the jurisdiction thereof."; 12/5/25, 5:25 PM
buwaya said...: Migration and economic globalization are natural consequences of technology. Technological change constantly upsets human apple carts. There is no inherent permanence of human cultures or societies. Any measures adopted against this unstoppable churn are strictly temporary.; 12/5/25, 5:32 PM
Laslo Spatula said...: Wait until the penumbra decides that aborting a baby in America grants citizenship. It was an AMERICAN abortion!

I am Laslo.; 12/5/25, 5:38 PM
buwaya said...: Everyone in these comment sections is a very recent arrival in their present environment, all of them are there because of the latter part of the "European Explosion" that began in 1492. Me too, though I have chosen to live in the land of my very ancient ancestors, which we have occupied for at least 10,000 years. How long have your ancestors occupied your land?; 12/5/25, 5:43 PM
buwaya said...: My kids are working towards colonizing the galaxy. That is a more hopeful and productive goal than tribal warfare, especially that fought with babies.; 12/5/25, 5:47 PM
Achilles said...: buwaya said...

Everyone in these comment sections is a very recent arrival in their present environment, all of them are there because of the latter part of the "European Explosion" that began in 1492. Me too, though I have chosen to live in the land of my very ancient ancestors, which we have occupied for at least 10,000 years. How long have your ancestors occupied your land?

If you are arguing in favor of some sort of right for people to come to the US and live here then you are arguing for inevitable war.

People who live somewhere will always defend their right to live there and to maintain and build what they have.

If other people move into the same space and demand the right to change how you live there is only one path: war.; 12/5/25, 5:47 PM
Achilles said...: RCOCEAN II said...

They're taking it to put that baby to rest. The idea that Roberts or ACB would side with Trump is absurd.

Anyone expecting anything different than this is insane.

ACB and Roberts are bought and paid for globalists.; 12/5/25, 5:50 PM
Eva Marie said...: @Tom Locker:
“Children born in the United States to parents who are serving as foreign diplomats with full diplomatic immunity do not automatically become U.S. citizens at birth. They fall under an express exception to birthright citizenship tied to the phrase “subject to the jurisdiction” in the Fourteenth Amendment.; 12/5/25, 5:51 PM
Laslo Spatula said...: “Everyone in these comment sections is a very recent arrival in their present environment…”

We are all recent arrivals in life, via birth. Then we die. Meanwhile: keep your receipts handy, I guess.

“How long have your ancestors occupied your land?”

Dang. I have a lot of respect for buywaya, too.

If I buy a sweet 1967 Mustang, how many buyers back do I need to go through before I know who truly owns the car?

Because that Apache dude down the street: he has eyes on it. Fucking firewater.

I am Laslo.; 12/5/25, 5:53 PM
Old and slow said...: Buwaya really has all of us beat with his Basque heritage. Thanks for the book recommendation my friend. I really enjoyed it! I knew vaguely about the the Basques, but that book was very interesting. There are still Basque mom and pop restaurants scattered around ranching country here in the western USA. A cowboy friend of mine often posts about them on facebook.; 12/5/25, 6:03 PM
Laslo Spatula said...: My people have been here for thousands of years.

Yeah: they never came up with the wheel, or iron, or electricity, or penicillin, but: thousands of years.

Now let me use your Western Civilization Technology to tell you about this in English, so I don’t have to make pictograms in clay.

I am tired of the Third World Debit Card.

I am Laslo.; 12/5/25, 6:04 PM
buwaya said...: What about the First World debit card?
You Americans are all second-order Euros. And we are all certainly ex-Anatolian/Central Asians.
Basques, weirdly enough, have the highest rate of the Y-chromosome haplogroup R1b. I am R1b myself (FamilyTreeDNA). But R1b is supposed to be associated with the Yamnaya/Kurgan Indo-European speakers.; 12/5/25, 6:16 PM
JaimeRoberto said...: I'm in favor of keeping birthright citizenship as long as we keep illegal immigration to a minimum such that the number of anchor babies is trivial. Unfortunately, that's not the situation we find ourselves in.; 12/5/25, 6:26 PM
Mason G said...: "There is no inherent permanence of human cultures or societies. Any measures adopted against this unstoppable churn are strictly temporary."

Defend your culture and society from those who would see them destroyed or close your eyes and think of England.

Your choice.; 12/5/25, 6:26 PM
Laslo Spatula said...: "What about the First World debit card?"

How much more from the USAid Fountain is needed to pay that off?

I am Laslo; 12/5/25, 6:26 PM
Laslo Spatula said...: "Basques, weirdly enough, have the highest rate of the Y-chromosome haplogroup R1b."

When do the chemicals add up to someone being an Octaroon?

I mean, if we are measuring chemicals and all.

I am Laslo.; 12/5/25, 6:29 PM
buwaya said...: Interesting how things work out.
My first career was working on the war-galleys of your tribe, and my children work on its galleons.
My kids were not American because of birthright, but because their mother is American, a native of San Francisco. Her father however was Mexican, from Jalisco. And HIS mother was an Echevarria, hence at least part-Basque.
Churn.; 12/5/25, 6:38 PM
Original Mike said...: Why should the Supreme Court take this case? We've been assured it isn't even a question.; 12/5/25, 6:43 PM
buwaya said...: Your best defense isn't genetic withholding but that Basque invention, Jesuits. Conquer with culture, while suppressing heretics in your own. Americans are really very good at the first, not yet so good at the second.; 12/5/25, 6:44 PM
Readering said...: Still see this being decided as statutory interpretation.; 12/5/25, 6:57 PM
buwaya said...: To be clear, the recent opening of the borders by the Biden administration was vastly irresponsible. You really do have a limited number of legitimate slots for immigrants, and there is no way to accomodate the global latent demand for them.
The labor market disruption and lack of quality control is a serious problem.
Compared to this, btw, the birthright citizenship problem is very minor.
The legal immigration route however is simply bad. You have in the most numerous cases decades-long waiting lists that in the end let in a mass of geriatric immigrants. And there is no quality control or optimization there either.
Birthright citizenship is BETTER than the legal immigration queues, whatever its flaws.
You really have to do something about all that.; 12/5/25, 7:14 PM
Greg The Class Traitor said...: Political Junkie said...
I agree with Greg and RC2, this case is going down, even though I wish it was not. Birthright citizenship causes many negative outcomes.

You are misreading me. If they were simply going to rule against Trump, they wouldn't have granted certiorari before judgment, they would have made Trump lose at the District Court and Appeals Court level first.

That they took the case indicates they're willing to rule for Trump and against birthright citizenship; 12/5/25, 7:15 PM
Mason G said...: Birthright citizenship by itself isn't so much the problem- it's that "anchor baby" ends up meaning entire illegal families are allowed to stay here. Incentives, anyone?; 12/5/25, 7:24 PM
Greg The Class Traitor said...: Oh, someday I'll be good at math. :-(

Because within 26 years of the passage of the 14th, in Elk v. Wilkins (1884)

No, that's 16 years, well within "the first 25 years after it was ratified"

find an example of it happening between 1868 and 1883
No, that's 15 years. 25 years is 1868 to 1893; 12/5/25, 7:25 PM
Peachy said...: This comment has been removed by the author.; 12/5/25, 7:54 PM
Peachy said...: Birth Right Citizenship is yet another "law" that is abused. It is an avenue for fraud. Get rid of it.; 12/5/25, 7:55 PM
Breezy said...: One thing we all should be grateful for, left and right, is how Trump makes us think about and test our comfortable guardrails - stuff we just took for granted. Where exactly is the line here? It’s perfect work for SCOTUS. I think they said - ya give it here, we need a good chew.; 12/5/25, 8:00 PM
Jersey Fled said...: My wife’s ancestors, born in Europe, have occupied this land since before the founding of this country. Does that make her Indigenous?; 12/5/25, 8:12 PM
Conrad said...: Greg, there were no passports between the 14th amendment and Wong Kim Ark. Passports weren't a thing until about WWI.; 12/5/25, 8:20 PM
mccullough said...: Trump has the right strategy here. Let ACB & Roberts side with the Weird Sisters and then push the 28th Amendment through the state conventions.

This is an important issue. And the People need to settle it.; 12/5/25, 8:22 PM
Jersey Fled said...: I haven’t followed the birthright citizenship issue very closely, but just read the Scotusblog post that Ann linked to. It seems pretty obvious that the birthright clause, being embodied as it was in the 14th Amendment, was intended to give citizenship to freed slaves. Nothing more.

Is there anything in the historical context to prove otherwise?; 12/5/25, 8:25 PM
Gospace said...: So can all you birthright citizenship supporters explain the unique status of American Samoans who are born in the USA but explicitly NOT US citizens, but US Nationals? And cannot serve as military officers, though it seems they are allowed to enlist. The 14th amendment doesn't apply to them. And- it seems if a foreigner, regardless of legally there or not, - or American citizen- drops a child in America Samoa, the child is not Samoan. And considering the status of America Samoa, a child of a foreigner born there likely isn't covered by the 14th amendment if American Samoans aren't.

Tom Locker is correct, and Eva Marie is correct about the law, and wrong about reality. The State Department is full or anti-American Americans who have issued American passports to children born here of diplomats. To how many? I don't know, and they certainly aren't keeping track, but at least one to a child of a USSR diplomat, which means there are others out there. And it was sometime in the 1900s when the State Department started issuing passports to anyone born here without question. It was a bureaucratic decision, likely because they were too lazy to do their jobs.

14th regarding citizenship- 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. That "subject to the jurisdiction thereof" has never been defined in law. And if a child is born here to someone here unlawfully, are they subject to the jurisdiction thereof? Certainly not.

The Supreme Court was very careful in Wong Ark Kim to point out- his parents were here lawfully, AND, he and his parents were resident here, the usually ignored part of the 14th. His parents had purchased property here, and sold it when they returned to China. Birth tourism- most often Chinese- the lady flies to LA, drops the kid, gets the BC, flies back to China- was she ever resident here? My one son who had a travelling job, if he was going to be in one state for more then a month, would rent the hotel room by the month. Which in the states he was renting in, at least, meant that the room became a residence under the law, and wasn't subject to the hotel room tax... which saved his employer a bit of money. A lady who crosses over the border- legally or legally- from Mexico who drops a kid in a border city hospital, and returns to Mexico immediately after being discharged- was she ever resident in the state or the United States?

Then there's the last section of the 14th: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Congress could, tomorrow, pass law stating that someone here unlawfully is "Not under the jurisdiction thereof" for the purpose of the 14th amendment, and that person here on a tourist or student or any other temporary visa are not "subject to the jurisdiction thereof". It would give great guidance to the Supreme Court on how to rule.; 12/5/25, 8:44 PM
JIM said...: People that spend other people's money to buy votes to stay in office need more people, not less.; 12/5/25, 9:40 PM
Kakistocracy said...: All that matters is what the law is. And that seems pretty obvious to me. If the people want to change that, there is a perfect well established mechanism for doing so.; 12/5/25, 9:43 PM
Greg The Class Traitor said...: Conrad said...
Greg, there were no passports between the 14th amendment and Wong Kim Ark.

Wrong:
Indiana State Library
https://blog.library.in.gov › a-brief-history-of-the-united-states-passport
A Brief History of the United States passport - Indiana State Library Although the State Department issued passports beginning in 1789, states and cities were also able to issue passports to citizens until 1856; 12/5/25, 9:51 PM
Dave Begley said...: Dave Begley said...
SCOTUS will agree with Trump. But the Order will be prospective only.

If Congress had to pass a statute to make Native American citizens about 50 years after the 14th Amendment was passed, there is no way that anchor babies can be considered citizens. Also, those Chinese birthing centers in CA can’t continue.

The 14th Amendment is not a suicide pact.”

I still agree with myself.; 12/5/25, 10:11 PM
Josephbleau said...: This comment has been removed by the author.; 12/5/25, 11:03 PM
Prof. M. Drout said...: I have yet to read a single defense of the opening of the Border during the Biden administration. Not one. Simply denials that are obvious lies. And unlimited illegal immigration has now become a litmus test in the Dem party even though it is wildly unpopular.
Not only did this evil power-grab directly do an enormous amount of damage to the country, but it has totally blown up any chance of there being a compromise for the people brought in illegally as children who have known no other home.
I feel for those people, and it probably would have been possible to create some kind of compromise: ano voting, no political contributions, no holding political office, no collecting welfare, no bringing in other people, but in exchange we won't throw you out and maybe you can even collect Medicare and Social Security after you've paid in for enough years.
But everything has been so poisoned by the mendacity, the attempt to overwhelm through sheer numbers, and the flat-out insanity of letting violent criminals walk the streets BECAUSE they are illegal. There will be no compromise now, just more rounding up for those who don't self-deport. And if there's violent resistance, we are going to end up with fuly indiscriminate round-ups and bans for life like Australia has for people who try to sail boats there.; 12/5/25, 11:03 PM
Conrad said...: Grok says less than 1% of Americans had passports in 1898. You didn't need them to travel internationally until WWI.; 12/5/25, 11:12 PM
Left Bank of the Charles said...: If Trump is changing the law, his executive order won’t do it, he has to get it passed by to Congress. If he is changing the Constitution, he also has to go to the States.

On the other hand, if Trump is correct in his interpretation of the “subject to the jurisdiction” clause, his executive order would not need to be prospective only. Indeed, if he is correct, he’d be allowing people who didn’t acquire U.S. citizenship at birth to go on incorrectly claiming that they did if they happened to be born before his cutoff date. That’s amnesty for millions, if you are a true believer in this theory of his.

Here’s the rub. Under Trump’s interpretation, we don’t know for sure that he is a natural born citizen eligible to serve as President. His mother and his father’s mother and father were born outside the United States. Papers please.

Indeed, two of his three wives were born outside the U.S. The only Trump that is clearly an American citizen is his daughter Tiffany, through her mother Marla Maples.

Trump and his other four children may be among the millions he is granting amnesty!; 12/6/25, 12:15 AM