At the outset of the month, the U.S. Supreme Court heard oral arguments in the case Trump v. Barbara and is now weighing whether or not to uphold President Donald Trump’s executive order terminating “birthright citizenship.” There are a number of practical reasons to uphold the order: Chinese Communist Party (CCP) officials and illegal immigrants have taken advantage of “birthright citizenship,” effectively gaming the system to nab U.S. citizenship for the children of those who are openly hostile to the U.S. and those who wantonly disregard the nation’s laws. Upon reaching the age of 18, those children will be able to vote in U.S. elections, influence the American political system, apply for legal permanent residency (LPR) and citizenship for their noncitizen parents, and would even be eligible to run for the office of U.S. president.

Government Accountability Institute President Peter Schweizer, author of “The Invisible Coup: How American Elites and Foreign Powers Use Immigration as a Weapon,” spoke last month on “Washington Watch” about some of the threats posed to the U.S. by the combination of birth citizenship with mass immigration and a burgeoning birth tourism industry. Looking ahead to the Supreme Court’s expected ruling on the issue, he warned, “If they come back and say that birthright citizenship is absolute — that if you are here, you are within the borders, you are allowed to do this — then we are in deep, deep, deep trouble.” He opined, “This is a serious national security concern that really demands attention, and I’m hoping the court is going to be reasonable and recognize that the Constitution is not a suicide pact, that there should be the ability of the executive and the legislative branches to put limitations on what birthright citizenship really means.”

“The court has to look at this. This is not just simply a question of people who have entered the country illegally and may be working here and may have families here,” Schweizer continued. “This is a problem of people who literally have no connection, their children have no connection to the country, other than the fact that their mother happened to have been here for a fleeting moment, to give birth for the sole purpose of getting citizenship for their child.”

Constitutional scholars, however, also contend that there is a strong legal basis for upholding Trump’s executive order and narrowing the scope of birthright citizenship to only extend to the children of U.S. citizens or those legally present and domiciled in the U.S. In a Center for Immigration Studies (CIS) podcast appearance, Hans Von Spakovsky, legal fellow at Advancing American Freedom, explained, “All this revolves around a very short phrase in the 14th Amendment. The 14th Amendment was one of the reconstruction amendments passed after the Civil War. Its intent was to ensure that the former slaves and their children would be considered citizens.”

The first line of the 14th Amendment reads: “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.” (Emphasis added.) That line has broadly been interpreted to extend U.S. citizenship to any child born on U.S. soil, but the Trump administration argued before the Supreme Court that those who are not U.S. citizens and are either in the country illegally or are here legally but are not domiciled here (i.e. not living in the U.S. on a demonstrably permanent basis) are not “subject to the jurisdiction” of the U.S. and their children are therefore not eligible for U.S. citizenship, even if born on U.S. soil.

In the Trump administration’s line of reasoning, predicated heavily on extant discussion and legislation at the time of the 14th Amendment’s writing and ratifying, “subject to the jurisdiction” of the U.S. is roughly equivalent to owing allegiance to the U.S. Those who have violated U.S. sovereignty and law to enter the country illegally and those who are not legally domiciled in the U.S. do not owe their allegiance to the U.S., the administration contends.

Those who have opposed the “birthright citizenship” executive order, Von Spakovsky related, hold that “the only wording of the 14th Amendment is ‘all persons born or naturalized in the United States.’ They ignore that second phrase: ‘subject to the jurisdiction thereof.’ So this entire case really revolves around what is the proper interpretation of that language.” He continued, “A lot of people make the mistake of thinking about ‘subject to the jurisdiction thereof’ as territorial jurisdiction. They say, ‘Well, if you’re in the U.S., obviously you’re subject to our laws and therefore you’re subject to our jurisdiction.’ Well, that’s wrong.” A German tourist who robs a bank in the U.S. can and should be criminally prosecuted, Von Spakovsky argued. “But what they meant by ‘subject to the jurisdiction thereof,’” he continued, “was that you owed your political allegiance to the United States and not to any other foreign nation, and that’s why this does not apply to the children of aliens who are here either illegally or temporarily.”

The 14th Amendment is closely linked to the Civil Rights Act of 1866, authored and introduced by Senator Lyman Trumbull. The Civil Rights Act initially stalled in Congress, with legislators arguing that they did not have the constitutional authority to impose the legislation on the U.S., leading to the ratification of the 14th Amendment in 1868, after which the Civil Rights Act was approved. Trumbull’s Civil Rights Act stipulates 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.”

The Trump administration argued that the application of U.S. citizenship delineated in the Civil Rights Act of 1866 ought to be the same as the application of U.S. citizenship afforded in the 14th Amendment’s Citizenship Clause. Von Spakovsky commented, “Now the problem is, for the first 70 years, everybody understood that’s what it meant. But at some point — and we’re not quite sure when it was, it may have been the 1940s, it may have been later — the U.S. government just kind of gave up on the correct interpretation and, for example, just started issuing passports to anybody born in the U.S.” He added, “So all the folks today say, ‘Oh, we have universal birthright citizenship. It’s been that way forever.’ Well, they’re wrong. It has been that way for quite a while, but that was not the original understanding.”

CIS Resident Fellow in Law and Policy Andrew R. Arthur, a former immigration judge and the author of numerous pieces of federal immigration legislation, noted in the same podcast episode that the 14th Amendment was largely ratified as a means of reversing the Supreme Court’s 1857 ruling in Dred Scott v. Sandford, which declared that the children of black slaves were not U.S. citizens. “Dred Scott was probably the worst case of judicial legislating from the bench that I can imagine, because Chief Justice Roger Taney said that no descendants of Africans, even if they’re freed, can be citizens of the United States. And of course, they had to address that, so Congress passed the Civil Rights Act of 1866,” Arthur observed.

However, he noted that then-President Andrew Johnson, a Tennessee Democrat, initially vetoed the legislation, largely in order not to grant U.S. citizenship to former slaves, leading Congress to choose slightly different language when crafting the 14th Amendment in its own effort to ensure that the Civil Rights Act could not be simply overturned by a later legislature. Von Spakovsky concurred, adding, “There is no indication that change in language was somehow supposed to weaken it. In fact, there seemed to be indications that they thought that would make it clearer.”

In a subsequent essay, Arthur wrote, “Congress could have made everybody’s lives easier if they hadn’t used such vague terms” in crafting the 14th Amendment. “This case really comes down to two questions, the first of which is whether” the phrase “subject to the jurisdiction thereof” is “vague and therefore subject to interpretation,” Arthur observed. Focusing on the questions the Supreme Court’s members asked of U.S. Solicitor General D. John Sauer and American Civil Liberties Union (ACLU) attorney Cecelia Wang during oral arguments, Arthur suggested that the Republican-appointed justices (Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett), with the possible addition of Democrat-appointed Elena Kagan, likely considered the phrase “vague and subject to interpretation.”

Either way the Supreme Court decides on the issue — determining it to be vague and open to interpretation, likely handing the law to Congress to clarify, or ruling that “birthright citizenship” is correct as it stands at present — Arthur suggested, the Trump administration will emerge the victor. “If the opinion allows Trump to limit birthright citizenship for the children of illegal aliens and nonimmigrants, it’s plainly a big win on a hotly contested issue,” he wrote. “If, however, the opinion follows Wong or holds only Congress can limit birthright citizenship, Trump could argue that he now must double down on removing all those here unlawfully before taxpayers find themselves on the hook caring for those aliens’ future ‘citizen’ children.”

Randy E. Barnett, a constitutional law professor at Georgetown University School of Law and director of the Georgetown Center for the Constitution, argued in a Wall Street Journal editorial that the Trump administration is “right on birthright citizenship.” Noting the legal debate over the meaning of the phrase “subject to the jurisdiction thereof,” Barnett wrote, “The court has never squarely addressed this question. Before Mr. Trump’s executive order, what originalist scholarship existed on the original meaning of ‘subject to the jurisdiction’ was sporadic and lightly tested if at all.” He continued, “The past year has produced an explosion of originalist scholarship on both sides. The justices are now in a good position to decide which side has presented the stronger originalist case.”

Both Trumbull, who crafted the Civil Rights Act of 1866 and guided the 14th Amendment through the Senate, and Republican Rep. John Bingham of Ohio, who Barnett described as the “moving force behind the 14th Amendment,” clarified that the meaning of “subject to the jurisdiction thereof” in the 14th Amendment is equivalent to “not subject to any foreign power” in the Civil Rights Act. Trumbull explained that “subject to the jurisdiction” meant “not owing allegiance to anybody else,” while Bingham, even after the 14th Amendment was ratified, clarified that U.S. citizenship is only granted to those born on American soil “and not owing allegiance to any foreign power.”

The “opponents” of the Trump administration’s “birthright citizenship” order, Barnett wrote, have failed to demonstrate that the 14th Amendment was intended by its authors as a means of granting U.S. citizenship to even the children of illegal immigrants and those in the U.S. temporarily, not domiciled in the U.S. “Some opponents, perhaps sensing the strength of the administration’s constitutional position, have suggested that the court avoid the question by striking down Mr. Trump’s order as contrary to the Immigration and Nationality Act of 1952,” the constitutional law professor noted. The 1952 INA, relying on a framework developed by President Franklin Delano Roosevelt, not only replicates the language of the 14th Amendment (“subject to the jurisdiction thereof”) but is broadly argued to be understood in the modern context, where “jurisdiction” simply means conventional civil and criminal territorial jurisdiction.

“Even if some legislators misunderstood the original meaning of the language they were using, however, it is implausible to conclude that Congress enacted a fundamental change in the law — especially given that the 1952 law explicitly clarified citizenship rules for children born in U.S. territories and to U.S. citizens abroad,” Barnett argued. He further pointed to the 2008 case Heller v. District of Columbia, in which the Supreme Court ruled that the Second Amendment protects the rights of individuals to bear arms, rather than only extending such rights to collective militias, which was the view of “conventional wisdom” at the time, according to Barnett. “The situations aren’t identical, but the pattern is familiar,” he wrote. “Conventional wisdom was wrong about the original meaning of the Second Amendment. It is wrong again.”

Columbia University Law School professor Philip Hamburger, in a Law & Liberty essay, likewise argued that the Trump administration’s understanding of “birthright citizenship” is constitutionally correct. Once again focusing on the dispute over the meaning of the phrase “subject to the jurisdiction thereof,” Hamburger suggested that the Supreme Court need not necessarily decipher how the Framers of the 14th Amendment intended to use the phrase. “[T]hen, as now, different ideas of jurisdiction could coexist, each being valuable for different purposes. Put simply, jurisdiction comes in layers, like Russian dolls,” he wrote.

Looking at war criminals and foreign leaders who are tried for crimes in the U.S., such as the recent example of Venezuelan dictator Nicolás Maduro, the legal scholar observed that the “broadest jurisdiction of the United States is sometimes imposed on foreign criminals who have adversely affected the United States, but who have never set foot within this country or otherwise voluntarily agreed to its jurisdiction.” He continued, “The nation’s territorial jurisdiction is not quite as expansive, but it’s remarkably broad, covering almost all persons within the United States, with exceptions only for ambassadors, etc.”

In order to enforce criminal law, territorial jurisdiction is “very valuable,” Hamburger wrote, since it allows the U.S. to defend its people, property, interests, and laws from those who have violated that law. “But for purposes of citizenship, it would constitutionalize the improbable and irresponsible message: ‘Get across the border, and your children will be citizens!’” he continued. The “extra-territorial” understanding of jurisdiction, Hamburger observed, is not applicable in this case, leaving a choice between only the territorial understanding (which would grant U.S. citizenship to those born in the U.S. no matter the circumstance — in other words, the current understanding) and the “exclusive-allegiance” understanding advocated by the Trump administration.

“The drafters of the Fourteenth Amendment repeatedly explained that they were referring to exclusive-allegiance jurisdiction, not territorial jurisdiction,” Hamburger stipulated, referencing much of the evidence highlighted already. “This was the jurisdiction of the United States over persons whose allegiance was exclusively to the nation, not other countries. The amendment’s definition of citizenship was a response to the nation’s agonizing history of slavery and liberation,” he continued. “The drafters made the reasonable assumption that Black Americans were fully loyal to the United States, not any other nation, and thus were within the jurisdiction of the United States, defined in terms of exclusive allegiance,” Hamburger observed. “But what can be assumed about the children of temporary and unlawful visitors — children of parents who haven’t given primary allegiance to this country, including parents who have entered in violation of the law? It would be a perversion of the ideal of citizenship to stretch the Fourteenth Amendment’s conception of jurisdiction that far.”

Hamburger went a step further than many other legal scholars of his caliber and suggested that the present understanding of “birthright citizenship” poses a threat to the continued existence of the U.S. “Policy considerations matter — not to displace principle, but to reveal the value of the Constitution’s textual rejection of territorial jurisdiction,” he wrote. “One such consideration is that citizenship is different from equal protection under the laws. Citizenship is a matter of loyalty, not just obedience and protection, and no nation can survive long if it dilutes the commitments underlying citizenship,” he insisted. “Another consideration concerns immigration.”

While the 14th Amendment’s guarantee of U.S. citizenship to freed slaves and their children did not infringe on the government’s authority over matters of immigration, a Supreme Court interpretation of the 14th Amendment upholding the present understanding of “birthright citizenship” would “severely burden government and immigrants. Some existing visitors will benefit, but the government will face an irrevocable impediment to its management of immigration, so it will probably institute severe restrictions to prevent abuses,” Hamburger anticipated. “If that happens, the responsibility will rest on the Court, not the administration. The Court can’t depart from the Constitution’s text and imagine it won’t be considered the author of the resulting trouble — especially in a field, such as immigration, that the Court ordinarily says must be left to executive discretion.”

“One consideration after another cuts against a territorial vision of birthright citizenship,” Hamburger concluded. Turning to the Supreme Court’s oral arguments at the beginning of the month, he added, “Unfortunately, it wasn’t evident from the April 1 hearing that the justices understood all of these considerations. It’s therefore important for them to pause to make sure they grasp what’s at stake. The nation needs justices who understand the law and adhere to it.”

The arguments against the current understanding of “birthright citizenship” not only pose a grave (and almost certain) risk to national security, but many of the nation’s top constitutional and immigration law scholars agree that the current understanding is not only contrary to reason but contrary to the explicitly-stated intention of the 14th Amendment.