FROM OUR PRINTED MARCH 2025 EDITION
President Trump Is Right About Challenging Birthright Citizenship – Part One
by Atty. Robert Snider
Boston Broadside Columnist
Former Suffolk County
Assistant District Attorney
President Trump issued an Executive Order (EO) on January 20th, 2025 forbidding the automatic granting of birthright citizenship to persons born (1.) to mothers unlawfully present in the U.S. when the father is not a U.S. citizen or a lawful permanent resident and (2.) when the mother’s presence is lawful but temporary, and the father is not a U.S. citizen or a lawful permanent resident.
Notice that Trump’s EO includes both birthright citizenship and also the citizenship of the parents. If the father is either a citizen or a lawful permanent resident, the mother’s illegality is cured and the child is a citizen. Significantly, the order acts prospectively only; that is, it applies only to births occurring thirty days after January 20, 2025. Birthplace citizenship of those born prior thereto are not affected.
Immediately after publication of the EO, lawsuits were filed around the country before judges sympathetic to the open border advocates. Professional constitutional analysis requires a neutral mind and legal analysis, neither of which are present in the media. Because the issue needs to be covered completely, I will cover the issue over
several months.
The commentators who claim the issue is settled by U.S. vs. Wong Kim Ark, 169 U.S. 649 (1898) are wrong. Just because a case is old does not mean that it is correct. No one can accurately predict what the Supreme Court will do, but President Trump has a strong legal position.
The Wong case does not govern births to mothers in the U.S. who are illegally present and, even if it does, its reasoning is fundamentally erroneous. Justice Gray used English common law principles applicable to private, civil disputes (called “municipal law” in the case) to equate the concepts of “subject” and “citizen” when their definitions must be based on political principles.
The Dred Scott Case, (1857) decided before the Civil War, ruled that slaves were not citizens and upheld slavery. But the decision was never reversed by the Supreme Court. Reversal required a constitutional amendment.
After the Civil War, Republicans in Congress acted to protect the rights of freed slaves and free blacks as citizens by passing the Civil Rights Act of 1866. Fearing that the Democrats would undermine statutory rights when they took a congressional majority, Republicans passed the 14th Amendment so that the civil rights given to blacks would be protected at the constitutional level.
“14th Amendment, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.”
A case that has different relevant facts from a later case is distinguished (meaning a significant, factual difference) and does not control the later case. Wong’s parents were permanent lawful resident aliens with roots that established that they intended to stay. That is the kind of fact that distinguishes one birth from another when citizenship is the issue.
That difference also determines whether the U.S. through lawfully passed legislation as contemplated by Section 5 of the 14th Amendment decides by law those who become citizens or whether aliens who violated the law by entering illegally decide who becomes an American citizen.
“14th Amendment, Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
Next month we will explain why Wong’s analysis of the issue is fundamentally flawed. ♦
