332. America's Birthright Citizenship Battle

Introduction

0:00Hi, everybody. Cheryl Ackeson here. Welcome to another edition of the Cheryl Ackeson podcast.

0:10In today's podcast, the birthright citizenship battle. As the Supreme Court prepares to decide a landmark case on whether birthright citizenship should continue to be offered to illegal immigrants and Chinese tourists, among others, we break down the issues with attorney Bill Olson. Slow draining sinks, a foul kitchen odor, standing water in the shower. It's time to get your dreams cleaned with OneSource's $99 drain cleaning special. OneSource does it all without draining

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Birthright Citizenship Explained

1:16Birthright citizenship in the United States is rooted in the Citizenship Clause of the 14th Amendment, ratified back in 1868. It states that 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. This has long been interpreted to grant automatic citizenship to nearly everyone born on U.S. soil. There are some narrow exceptions, such as children of foreign diplomats,

1:47which was affirmed by the Supreme Court in a case called U.S. v. Wong Kim Ark back in 1898. But as you know, this benefit has been, in the views of many, abused in ways that the founders probably never would have conceived of. There are millions and millions of illegal immigrants who have been led into the country and allowed to stay where they have given birth in many instances. There is also a whole industry of foreign tourists, a lot of them from China, who pay a lot of money

2:20to specifically come here for a short period of time just to have a child that will have U.S. citizenship. And many analysts say this is a national security issue since so many are now doing this. Well, on January 20th, 2025, President Trump issued Executive Order 14160 entitled Protecting the Meaning and Value of American Citizenship. It directed federal agencies not to recognize U.S. citizenship

2:50for certain children born after February 20th, 2025, if their mother was unlawfully present or on temporary lawful status and if the father was neither a U.S. citizen nor a lawful permanent resident. This order interprets the phrase subject to the jurisdiction of the United States as being able to exclude such children primarily on the basis of parental immigration status and domicile. Lower courts uniformly blocked this order. In the consolidated challenge called Trump v. Barbara,

3:25the U.S. Supreme Court agreed to hear the issue and now is expected to make a decision maybe late June or early July. The case basically centers on whether Trump's executive order complies with the 14th Amendment. During arguments, I think a lot of analysts when they gave their opinion said that the justices appeared very skeptical of the Trump administration's position. If you ask around, people seem to think the Trump administration is going to lose this case. Of course, anything can

3:56happen and in today's post we hear from a true scholar on the subject to explain more. Bill Olson is an attorney in Virginia who handles the legal affairs program of America's Future. America's Future is a long-standing public policy organization set up back in the 1940s now headed by General Mike Flynn. They have a very active amicus brief program which means they file support in important cases on the side they agree with. In the last few years they filed about 150 amicus briefs including one on the U.S. Supreme

4:32Court birthright citizenship case in favor of the Trump administration's position. Here's Bill Olson.

Lawfare Against Trump

4:39Bill Olson. Before we get to the topic of birthright citizenship, can I get some reflections from you on the lawfare that's being practiced against President Trump? Kind of how you see this taking place, what's going on now and the impact of it? You know, it's been extraordinary because they get away with murder and the the liberal lawyers are defend are supported by judges who are willing to us usurp

5:10authority that they don't otherwise have. We have, I'll use this as an illustration, the birthright citizenship case, the people who wanted to challenge it could have challenged it anywhere in the country because there are people who are giving birth anywhere in the country and yet of course where would you want to challenge that? Well they go into the western district of Washington because that's in the ninth circuit, they go into the central district of California because that's in the ninth circuit, so they know they're not going to lose in either district court or in the ninth circuit. Then they go

5:45in New Jersey filed suit and you know where they they didn't file it in New Jersey, they filed it in New Hampshire and the reason they did that was that's in the first circuit which is all democrat judges as Chief Justice Roberts says there are no democrat or republican justices but there's certainly people with inclinations and then there's a case was filed in Maryland which is in the fourth circuit which is very much controlled by Obama and Biden appointees and then there was a case filed in DC and at random assignment it went to a Trump appointed judge and you want to guess what the plaintiffs did they

6:21immediately dropped the litigation of the case because they did not want to have a decision that could go against them. So although the theory is when you bring litigation around the country the case percolates and it gets thought of by various district court judges and circuit court judges that you get different opinions different views but aside from one or two very good dissents there really was no percolation in this area because the court the courts below just basically went with what they were taught in law school

6:52and it's amazing how that works because the in law school you're taught if you're born in America you're a US citizen and the nuances of that and how that came to be are never explored. Before we go into that one more follow-up could the other side in other words those who want to do something to change birthright citizenship have filed their own cases in districts that don't lean that way so that like cases would be going

7:23through the court on their side of things rather than play defense after these other cases are filed in favorable districts? Yeah that's a good question but the executive order was attempting to restore the historic understanding of the 14th amendment clause on birthright citizenship which bans birthright citizenship and you would not have a motivation to go into court to seek its affirmance you wouldn't have a case or controversy that a court could decide so the only people are the ones

7:54aggrieved by it who are challenging it and therefore they get to pick the district and they get to pick the circuit that the district is in and they get to just get a favorable decision as it goes up. And then sorry to be hope I'm not beating a dead horse but could the other side aside from Trump's executive order parallel to it or separate from it have filed a claim saying they're an aggrieved party by people who are given birthright citizenship and gotten it going through the courts another way that doesn't have to do with the EO?

8:25Well it's an interesting thought which I've actually not ever considered before but I think that would be very hard to demonstrate to say that there's this national policy which dilutes your vote for example by allowing a lot of people who are not citizens to be able to grow up and one day vote. There are those kinds of cases that that adopt those theories but I think they're few and far between but it's it shows

Definition of Birthright Citizenship

8:53good thinking. All right first I'm going to ask you to give a short definition for birthright citizenship then we'll go to historically what it's thought of as and what's come to be today. So first of all can you give a simple definition of it? You know birthright citizenship is the notion that merely because a person is born on U.S. soil that that person is immediately imbued with U.S. citizenship irrespective of any other factors irrespective of who the father is irrespective of who the mother is

9:27irrespective of the allegiance that those people have to foreign government.

Historical Context of Birthright Citizenship

9:32Can you give us the short version of how this came to be where it's laid out in the constitution and why? You know when the country was founded all of us were British subjects. If you were born in the colony you were a British subject. That's under the concept the British concept of citizenship which is juicely that the soil determines and the reason the rule was that way was that anyone born on British soil or in the colonies

10:05that that person was a had a duty to his liege lord to the king. So that is a relationship based on allegiance to a sovereign to a monarch. It's not even to the country. It's that you have that the king is in control of you. So it works in a sort of a funny way because for years then everyone born here was a British citizen until either the commencement of hostilities against Britain which

10:39was April of 1775 or the publication of the Declaration of Independence where we absolved all allegiance between America and the king. No longer was anyone born in the United States under authority of the king and we we severed that at the moment of signing the Declaration of Independence. That ended our allegiance to that system and that from then on persons born here would would be you know citizens

11:13of this of the free and independent states that were established by the constitution and it says as much allegiance is a critical concept of citizenship and in the United States if you're going to fast forward to today if you're born here it is a reciprocal duty of citizenship and allegiance. So in other words if you are born here and you have no connection to the United States well you have no allegiance to the United States. If you're born here to parents who are here illegally you're here in defiance of the law.

11:50Actually the I should have described this before the 14th amendment comes along and it the main purpose of the 14th amendment was simply to determine that children born to slaves were citizens and this as well as the the slaves the former slaves were citizens. That's all it did and it but in doing so it reestablished the principle that everyone understood which is that you had to be born in the United States subject to the authority thereof. That's what's in the 14th amendment. That was identical to language that

12:27was in the Civil Rights Act of 1866 it was identical in purpose but the language of the Civil Rights Act of 1866 was even a bit more precise it said that the the person born here could not be under the authority of a foreign couldn't a foreign government so that was not meant to be a change in the way in which allegiance was determined it was meant to be just another way of saying it so either having no

12:59no no relation to a foreign government or subject to the jurisdiction meant the same thing today. Let me just give a hypothetical here would two illegal immigrants who've intended to permanently leave their country and therefore have no allegiance to it and have a child here would that meet the test of the baby having no allegiance to a foreign country and therefore have birthright citizenship in your view? Well the way the president's executive order is written it it says that the father is not a U.S. citizen

13:36nor is a permanent resident of the United States lawful resident and the mother is either illegally here or the mother is only here temporarily. Now under those circumstances the child does not become automatically a U.S. citizen by accident of birth in the United States. That makes sense because one would expect a person who was born to say two illegal aliens who are here in defiance of the laws of the United

14:10States they're not here subject to the jurisdiction of the United States they're here in defiance of the jurisdiction of the United States so they don't certainly meet that test nor can you expect that child to grow up to be nurtured and trained about American history and about our government and how things work and the fact that they have a duty to our country because what they're trying to do in some of this litigation is sever the connection between citizenship and allegiance but they are mutual concepts. We have

14:42citizenship because we show allegiance to our country and it's not just obeying the traffic laws it is much more than that it's being willing to serve in the in the military if you're drafted you have to have allegiance to it we pledge allegiance to our flag if you have two people from a foreign country who are father and mother they will typically raise that child to respect the other country that they're from that's what they know so we cannot expect that that child is going to be raised in allegiance to the

15:15United States it's a very dangerous thing to just give away citizenship and we have many illustrations of how the systems being abused by people from other countries including China that are coming here not even coming to the continental United States but going to our territories for a day or two having a child born in the United States on our territory in a territory and then return the next day to China now that

15:46person according to birthright citizenship is a citizen of the United States solely by virtue of birth even though the presence of that child here is only a a day once they go back and this is we have many thousands of illustrations of this once they go back to China they're not raised to have allegiance to the United States they're raised to have allegiance to China but when they turn 18 they're allowed to come back into the United States and they can register to vote they can serve on juries they can contribute to

16:22candidates for office they can do they can participate fully they can keep and bear arms under the second amendment and it's rather extraordinary to think that someone with a few hours connection with the country has is imbued with all the benefits of citizenship when it comes to birthright tourism people coming here just for that reason do we know or can we quantify how big of an issue that is there's a lot of work that's been done on that but there's no record kept in that manner but we know that there are

16:57according to recent sources and Peter Schweitzer did research about 500 companies that arrange for these kinds of things in China alone so it's it's rather extraordinary how many people are taking advantage of the birthright citizenship policy it's equally extraordinary to think about how many American politicians don't seem to care and the judges justice judges below didn't seem to care they simply said born here citizen there are older interviews with some Democrat members of Congress who then opposed giving birthright citizenship

17:35under many of these circumstances but today are on the other side what do you think changed politics politics changes everything we've had an influx in the Biden administration of whatever it was 15 or more million people and if all those people are and many of them are of childbearing age and if they have children here you change the country by changing the demographics of the country and if those people have a tendency to vote Democrat then Democrat politicians certainly have a political

18:09interest a vested interest in changing their view about how they interpret the constitution

Supreme Court Case Involvement

18:14how did you get involved in the current supreme court case did you file a friend of the court brief yes we actually have a long association with this issue we first wrote about it in 19 in 2001 for a non-profit known as u.s border control that wanted to get the issue back on the table and we put out a report on it at that time and then we've updated that over the years in this case America's future the non-profit organization that we do work with feels very strongly that citizenship is not to be given

18:51away it's something to be earned and it's there it requires a degree of commitment by the individual not just a recipient of a present so they wanted to get involved as soon as the president's executive order was issued which was right after the same day he he was sworn in hours after he was sworn in he signed that executive order and they said well wherever the cases filed wherever the challenges are let's file a brief

19:21and so we went ahead and tried to persuade even though the those courts were carefully chosen by the people who wanted to challenge the president's executive order we wanted to make sure they heard the other side and so we went into those courts and we actually filed 10 different amicus briefs in district and circuit courts around the country similar briefs and one of the things we did was explain how many times that these judges in massachusetts and central district of california and others had

19:55enjoyed the trump administration every time given the opportunity for some reason it was all trump was always wrong so we wanted to make sure that they knew there was another side to that i think we filed as many as anyone did if not more did you listen to the supreme court arguments on this very carefully yes what are your thoughts i think it's going to be a lot closer than people think i i find it amusing watching those in the press who are opponents of the president just rejoicing in difficult questions

20:30having been asked to the solicitor general but equally difficult questions were asked to ms wang the aclu counsel who argued the case to challenge the executive order i think that the the she she also made a rather big mistake in the way she presented the case because she said that the same meaning of the term subject to the jurisdiction thereof in the 14th amendment is the same as the 1866 civil rights act

21:03which had to do with no foreign connection and the minute you do that you begin to weaken your own position because it becomes clear that it's just not about foreign diplomats the there's another issue historically which had to do with indians not taxed which is the way the 1866 law was written but that's been solved by subsequent congressional action granting citizenship well i can't read the tea leaves better

21:35than anybody else and i didn't hear all of the arguments but i listened to what i could and what did you make of wasn't it kavanaugh who's considered by some to be on the conservative side and didn't he ask a question if i'm not wrong where he said something to the people who want to keep birthright citizenship he said well if we agree with this certain interpretation meaning agree with you on how this law is being read we don't need to do anything else right and everybody kind of took that as a really good sign for the supporters of birthright citizenship i think with what they were referring to was whether the one

22:09kim arc decision was binding whether it addressed the issue and was binding this is one of the most important aspects this whole case because the one kim arc decision issued by the supreme court in 1898 had to do with children a child born to chinese parents under the chinese exclusion acts they were not allowed to be the parents were not allowed to become citizens the question is is the child a citizen and since they

22:40both of the parents were here lawfully and since they were here permanently the court decided that they were citizens now the rationale they used was british law applies the same rule that applies in britain applies here but british common law was not adopted wholesale in the united states whenever it was inconsistent with the way in which we wanted to set up our republic it was rejected so and in america we don't have the concept of allegiance to a monarch allegiance to a sovereign in england you

23:16can't even renounce your citizenship you're not allowed to in the united states you can renounce your citizenship it's a completely different concept so the the issue of one kim arc addressed a very different issue than what's in the president's executive order however even and and we believe it was wrongly decided because it was based on this concept of british citizenship which really doesn't apply here

23:45tell me i'm wrong but it's hard for me to believe that at that level the supreme court justices don't each already have a position on this and are they really being swayed by the arguments presented to them they're waiting to hear that great interpretation of a case law they didn't know about or it's only because the lawyer made a really persuasive case or do you think they already know how they feel about this

24:10people have been asking that question a long time and i probably don't have a better answer than anyone else but i do think that if a just if a justice is planning on uh taking a particular position and they have something that they don't know how to explain away they'll ask a question to be able to try to get the answer but at that point this case has been briefed like crazy like crazy there are 25 or so amicus briefs i think on both sides and a case has been percolating for a long time they know about it so one would think that they

24:43pretty well have formed an opinion before they get there but i am optimistic because i think they've made that the ms wang made some critical errors i think that the way in which the case is presented is going to be much more difficult for them to just simply say one can mark applies no it doesn't and sour was solicitor general was superb on that issue because he kept saying we are not a monarchy we're a constitutional republic we don't our people do not are not owned by the king we're not lead servants of the king he made all this point repeatedly and so

25:22one can mark which was decided based on british law of citizenship has no application here we're a different country we dissolved all allegiance to brit to britain at the time of the declaration if that wins we win do you envision another way to get at this if it is a popular issue among the public meaning um could members of congress pass a law that would have an impact that's similar to what president trump wants to accomplish could they say that companies that are in business

25:53for specifically the tourism of people having a baby and going back home quickly that that can't happen in the united states or that it's even a crime what could what could be done at a congressional level if anything you know the the constitution gives congress the power of renaturalization doesn't say anything about immigration but since immigration is really an aspect of foreign policy how we administer our foreign policy one would think that it has to be under the authority of congress and therefore they could pass a law if it was signed by the president that would

26:29effectuate the same type of policy but i don't think we have to wait for it i think we've lived too many years under this system where we've assumed that it's the british system that we have here just as the aclu council argued and that's a false assumption and i think the court's capable of rejecting that and rejecting the guidance of one kim arc and and turning a page even if it's president trump is the one who presented it can you give a just a line if possible the best argument for

27:03president trump's position and the best argument against president trump's position well the best argument for the president is that this is the way that it was understood to be from the time of the revolution basically all through these legal treatises that were cited by uh sour and the during the argument all the way up to the this century and with respect to the two classes of people specifically addressed in the president's executive order illegal aliens and temporary uh persons temporarily here

27:42until 10 years ago most people said one can mark didn't address that issue it was an open question now we have supreme court cases that have said one can mark governs anyone born here as a citizen but they were never addressing the merits they were never thoughtfully thinking about this they never had the issue briefed fully this is the very very first time so the very strongest argument for the president's position is that it's historically accurate and until we had a very politicized set of law review articles

28:15coming out in the last 10 20 years we pretty much knew that one can mark did not decide the did what the issues in his executive order and what's the best argument putting on just your neutral legal hat what's the best argument the other side has it's we've made this mistake for 50 60 70 years and there's no reason to change it that's basically what they've gone into court and saying this is well established this is the way it's been since fdr when he uh his people changed the policy

28:52and then the clinton office of legal counsel reaffirmed that but until president roosevelt was in office it was pretty clear the that now we have a big influx of people now now it's a big issue now we know we have to address this issue because we have potentially a million two billion whatever illegal two million children being born to illegal aliens here every year all of which can vote and change the dynamic and direction of the country that wasn't the way it's meant to be is president trump's

29:25executive order retroactive no it isn't it's prospective and it only addresses people born i think it's 30 days after it goes into effect and it was enjoyed immediately and therefore never went into effect if the supreme court rules for president trump after 30 days it'll be in effect another naive question i understand courts in general not having gone to law school but they rely on precedents

29:55in the past i think people that don't didn't go to law school sometimes we look and think shouldn't the courts sometimes be about fairness and common sense regardless of what things you can point to in the past what are your thoughts about that well fairness and common sense sounds a lot like an evolving constitution sounds like the concept that we're going to just do what we think is right which it's interesting the attorney for the aclu worked for justice uh briar and he would say things like

30:27that look you know can't we just make sense here no you have you're limited the constitution is the law that governs the government and it governs the court and if they're not under the authority of the constitution then we're really in trouble so no we don't want to do just that which is fair but we when when the court when the uh solicitor general came in and explained the various curiosities of how birthright citizenship operates where we have this birth tourism and such or other countries weaponizing

30:59our system against us like china is doing playing the long game getting people raised up in china to come over here to make a massive in change in direction in our country we can't allow this to continue it's it's uh crazy but that is not how you interpret whether the 14th amendment clause subject to the jurisdiction thereof what it meant they were not trying to change the law they were trying to give citizenship to blacks and the children of blacks and and it had nothing to do with changing the law

31:35it's always been this way except for the fact that from fdr on they've been wrong what i think we need to have is the supreme court willing to say the courts have been doing it wrong the politicians have been doing it wrong we've got to go back to the original text history and tradition and realize we're in the wrong direction we're gonna we've been headed 180 degrees in the wrong direction we're going to turn around last point what do you envision is the next step first of all for the trump

Next Steps and Potential Outcomes

32:07administration if they don't win this case i don't know but it presents a a really important uh issue which is to what extent is our decisions that are not well founded by the court going to be respected by the people and i think that the in this issue the case is so clear that british citizenship rules do not apply to the united states of america we are not subjects of the king we are not unable to give up

32:40our citizenship as we would be if we were in england we we're going to have a system um we have that's very different than that and if the people do not see a rational approach being taken by the court i think we're going to have great disrespect of the of the court system of the whatever decision it would come out against president trump and what do you envision the other side's actions could be were the executive order that president trump issued to be upheld they'd probably go to congress

33:15and they'd ask congress to fix it to be able to grant citizenship to people who are born to illegals people who are temporarily here i don't know that the congress would have much appetite for taking on that issue can you imagine that we say that a husband and wife in mexico come across the border avail themselves of free medical care at a san diego hospital they have a child that we want to automatically make that child an american citizen i think that would be a very difficult sell for congress to

33:48make to the american people so if they want to try that be my guest but i just hope the court recognizes that president trump is restoring us to the historic understanding of what it means to become a citizen i hope you enjoyed this podcast and that you will share it with your friends leave us a great review and subscribe check out my other podcast full measure after hours to support independent reporting

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