On Thursday, a panel of the 9th Circuit Court of Appeals, which covers much of the western United States, upheld an injunction from a Seattle judge blocking President Donald Trump’s executive order to suspend Birthright Citizenship for certain groups of people. The order requires that federal agencies not issue citizenship documents to certain categories of people who are born in the U.S. This set off a storm of legal debates surrounding the exact nature of Constitutional protections around birthright citizenship.
In last week’s issue of the Review (“Case Against Birthright Citizenship is Stronger Than You Think,” The Oberlin Review, Feb. 14, 2025), Oliver Niehaus joined in on this debate. Niehaus argued that the protections for birthright citizenship are “not as strong as you may think.” He then uses a combination of legal precedent and history to argue his point. His main argument is that the existing exceptions to the right hinge on the “allegiance” of the potential citizen’s parents to the United States, which impacts their subjection to American jurisdiction. However, precedent from the Supreme Court and the simplistic definitions of the terms he uses run contrary to his argument. The protections for birthright citizenship are quite strong, but the fact that an attack on them might succeed is cause for concern for everyone.
The 14th Amendment of the Constitution expanded citizenship to “all persons born or naturalized in the United States and subject to the jurisdiction thereof” in 1868, following the end of the Civil War. President Trump’s Executive Order latches on to the last part of the clause. The order states, in no uncertain terms, that certain people are simply not subject to American jurisdiction. In particular, this refers to illegal immigrants, or those who are in the United States on a non-residency visa. The argument is that their children, therefore, are not entitled to birthright citizenship. Niehaus’ piece seeks to show how this could plausibly be upheld in court through a perspective based on allegiance and jurisdiction.
Jurisdiction, fundamentally, refers to the ability of a court or other institution to legally enforce its will upon someone. A court having the jurisdiction to judge a case is simply saying that they have the legal power to take it on; this legal authority can come from the Constitution or from a statute. Similarly, a government having jurisdiction over a person means that it is within their legal power to enforce their laws and authority against that person. Through this simple wording, any person within the territory of the United States is subject to its jurisdiction, as the U.S. can legally enforce its laws against them, within constitutionally prescribed limits of course. Trump’s executive order simply claims that certain people are not subject to this jurisdiction, but expends little ink outlining why.
Niehaus’ more eloquent argument rests on an understanding of how jurisdiction ties into allegiance. He relies on the exception for the children of foreign diplomats who are born in the United States — they are not given citizenship under the 14th Amendment. Niehaus claims that American jurisdiction does not extend to them because of their alleged allegiance to their home country. While he mentions diplomatic immunity briefly, I would argue that the main reason is because of this immunity, not their lack of allegiance. Foreign diplomats are not subject to the jurisdiction of the U.S. because the U.S. cannot legally enforce their powers of prosecution and punishment against them. This is the same explanation that the U.S. Citizenship and Immigration Services gives for why their children are not given citizenship. Documented and undocumented immigrants, on the other hand, can be prosecuted and punished by the U.S. — indicating their subjection to American jurisdiction.
Niehaus claims that it may be argued that “[undocumented immigrants’] parents arguably have some sort of allegiance to their home country,” and therefore are not subject to the full jurisdiction of the United States. But, foreign diplomats actively work for the government of another country, they are seen as speaking for the government of their other country, and cannot be punished by the U.S. government. Their allegiance to another government is in their continued service to the government while in the United States. Undocumented immigrants have, in many cases, chosen to come to the U.S., accepted the authority of the United States to enforce their laws, and in several cases, have left their home because of a fear of the government of their home country. It cannot be said that they maintain their whole allegiance to their home country to the extent that they reject American jurisdiction against them.
Even if I were to accept his argument that the allegiance of undocumented immigrants may not be entirely to the United States, precedent says that this should not matter. In the case of United States v. Wong Kim Ark, the Supreme Court had to decide the case of the son of Chinese nationals, who was born in the United States. The Court ruled that the fact that his parents were “subjects of the Chinese Emperor” does not mean that he is not entitled to birthright citizenship. Importantly, the Court rejected the argument employed by the dissenting Justices, that Wong Kim Ark’s parents have their allegiance to China, precluding him from claiming citizenship of the United States.
The Court has also ruled that undocumented immigrants are subject to the jurisdiction of the United States, and the many states, in non-citizenship cases. For instance, in Pyler v. Doe, the Court rejected the argument that undocumented immigrants are not entitled to protections under the 14th Amendment’s due process clause. They reasoned that because undocumented immigrants are subject to the jurisdiction of the United States, they are afforded those protections.
The precedent of the Supreme Court, then, clearly shows that immigrants, documented or otherwise, are subject to the jurisdiction of the U.S., and therefore, their children born in America should be entitled to citizenship.
Now, I must say that I understand the value of Niehaus’s article. It is a call to see that the protections that were once thought of as sacrosanct are not so safe after all. To him, it is not inconceivable that the Supreme Court could use these arguments to very reasonably rule that these protections don’t extend to those who need it most; that in his view, is concerning. Here, I agree with him, but draw a different line of reasoning. To me, these protections are incredibly strong, with only the narrowest of exceptions being afforded by the Court. To rule that immigrants are not subject to the United States’ jurisdiction is to possibly say that the U.S. cannot enforce any punishments against them. The current Court has shown appetite to overrule long standing precedents — Roe v. Wade and Chevron v. Natural Resources Defense Council, to just name a couple — and they could, perhaps, overrule Wong Kim Ark. This to me, should concern us all. The Courts may possibly undo one of the strongest protections afforded to those who need it most, in defiance of centuries-old precedents. Even the strongest of protections, then, may not matter in the face of a legal onslaught.
