Politics > Supreme Court

Resolving the Birthright Citizenship Issue

The upcoming Supreme Court ruling on birthright citizenship must adhere to the intent and meaning intended by the Framers or monumental adverse consequences will occur.

Jay Tucker | April 3, 2026

President Trump has issued his Executive Order No. 14160 (EO) denying birthright citizenship for children born in the U.S. to various non-citizens. Significant opposition has arisen from various quarters advocating automatic birthright citizenship for all those born in the U.S. whether or not the parents are (a) citizens of other countries, b) illegal immigrants, or (c) residents (temporary or permanent) of the U.S. Although their claims purport to be based on history, legal analysis, and on political, moral, and religious grounds, they are defective, often permeated by significant bias and intentional or unintentional error.

Because opposition claims rarely, if ever, mention the Enforcement Act of 1870, there is implication of either intentionality or a complete lack of awareness. For example, it appears that one alleged expert, while testifying to a government committee, claimed that no executive branch official has ever taken the position that the children born in the U.S of domiciled parents are not citizens. That assertion seems blatantly incorrect or false. President Ulysses S. Grant appears to have taken that exact position when he signed the Enforcement Act of 1870 (described below), which denies any grant of birthright citizenship when the child is subject to any foreign power, whether or not the parents are domiciled or reside in the U.S.

Applicable Birthright Citizenship Law

Civil Rights Act of 1866

That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States...

14th Amendment Citizenship Clause

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.

Enforcement Act of 1870 (Section 18 -- Reenactment of Civil Rights Act of 1866)

That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States...

In addition to the above text, there is unchallenged evidence that (i) Congress proposed the Citizenship Clause in the 14th Amendment specifically to lift the provisions of the Civil Rights Act of 1866 (including the “not subject to any foreign power provision), beyond the reach of statutory change, (ii) Congressional members confirmed even before enactment of the Enforcement Act of 1870 that the reference to jurisdiction in the Citizenship Clause was simply declaratory of, equivalent to, and means the same thing as the “not subject to any foreign power” provision of the Civil Rights Act of 1866, and (iii) the Supreme Court in the 1884. Elk v. Wilkins case affirmed that the 14th Amendment was intended to constitutionalize the assumption that those born subject to a foreign power were not ‘subject to the jurisdiction of the United States’ for purposes of the Citizenship Clause. The citizenship clauses described above are equivalent to two sides of the exact same coin. If the United States does not have complete jurisdiction, then the condition as to “not subject to any foreign power” cannot be met. Congress clearly established two, and only two, tests for the grant of birthright citizenship: (i) birth in the U.S., and (ii) not subject to any foreign power/subject to the complete power jurisdiction of the U.S. There was no test or condition requiring domicile or residence, temporary or permanent. Congress clearly intended to deny birthright citizenship to children of foreigners. No specific exclusion was needed or included in the language as to children born to diplomats, members of invading armies, tribal Indians, and illegal immigrants. They were all foreigners.

Much of the opposition to the EO is based upon the argument that “subject to the jurisdiction thereof” means subject to the territorial jurisdiction (laws) of the United States rather than “subject to the complete jurisdiction of the United States” as declared and intended by the Framers and affirmed by the Supreme Court in Elk. Children born in the United States are not even subject to the asserted territorial jurisdiction, whether civil or criminal. When did any of us learn that a newborn child was named as a defendant in a contract case or indicted for trespass or indecent exposure? The other type of jurisdiction (political jurisdiction), such as power over military service, mandatory allegiance, inheritance, family law, etc.) is the type of jurisdiction over the child of foreigners that the United States does not have.

Truth leads to the conclusion that the intent and meaning of the 14th Amendment, as described and confirmed above, is clear, fully effective, and was not, and cannot be, modified by contrary statute or contrary judicial opinion. It is possible, although highly unlikely, that contradictory information could become available, but, if any contrary evidence surfaces, many questions must be answered in detail, including:

What references, if any, to the Enforcement Act of 1870 are contained in court decisions cited and briefs filed with the Court which opinions and briefs specifically purport to support Respondents.

What are all reasons relied upon by Respondents to conclude that common law prevails or should prevail over all and each portion of Applicable Birthright Citizenship Law described above.

What actions occurred between April 9, 1866 and June 18, 1866 indicating that Congress proposed a change in law as to children born in the United States from the “not subject to any foreign power” limitation on birthright citizenship in the Civil Rights Act of 1866 to an effectively unrestricted automatic grant.

What actions occurred between June 18, 1866 and May 31, 1870 indicating that Congress proposed a change in law as to children born in the United States from an effectively unrestricted automatic grant of birthright citizenship to the “not subject to any foreign power” limitation described in the Civil Rights Act of 1866 and the Enforcement Act of 1870.

Trump v. Barbara oral arguments before the Supreme Court have been completed. The case presents the Court with the opportunity to overrule certain prior decisions (such as the decision in Wong Kim Ark ) and to reestablish the law and its purposes in accordance with the applicable law and the intent of the framers. This writer submits that the EO is lawful in part and unlawful in part. The law clearly and precisely provides that a child born in the U.S. subject to any foreign power is not entitled to birthright citizenship. There is no compelling evidence that the framers intended, or even considered, any change in the intended meaning of the Applicable Birthright Citizenship Law as above described, let alone any change which would have completely reversed the Framers’ intended meaning. Conflicting opinions and rulings have been based almost entirely on common law rather than upon the simple and specific statutory and constitutional language created to effectuate the Framers’ declared and repeated intent. Establishment of concepts of domicile and residence and automatic birthright citizenship totally reverse the provisions of applicable law. The words domicile, residents, residence, temporary, permanent, legal, and illegal are not relevant and are not included in the two tests or conditions for grant of birthright citizenship. The provisions of the EO granting birthright citizenship on the basis of domicile and/or residence should be dismissed.

If the Supreme Court ruling fails to confirm the intent and meaning as clearly intended by the Framers, monumental adverse consequences will occur.

America will lose the right to require children of non-citizens born in the U.S seeking citizenship to comply with all requirements, conditions, and protections of the naturalization process.

America would be flooded with lawsuits emanating out of and relating to undefined words and phrases, including but not limited to residence, temporary duration, extent, permanent domicile, presence, allegiance, dual citizenship, absence, legals, illegals, and sojourners.

Effects of enabling Congress to make statutory changes in the substance and effect of the Constitution by changing the definitions of undefined terms and phrases.

Incentivizing illegal immigration, encouragement of birth tourism, and providing a pathway to subversive activities.

Clearly, the legal concept of birthright citizenship must be restricted for the good of the country.

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