On December 18, I published my latest analysis of the “birthright citizenship” debate, and (in terms of feedback) it’s proved to be one of the more popular things I’ve written of late. Generally, I focus on whatever immigration-related issues are most pertinent, but that article was written for a specific purpose – a close relative wanted to understand the issues, and it was easier to explain them in writing. That underscores the most positive aspects of this long-overdue national discussion.

EO 14160: “Protecting the Meaning and Value of American Citizenship”

This debate began on Inauguration Day, January 20, 2025, when newly returned President Trump issued Executive Order (EO) 14160, captioned “Protecting the Meaning and Value of American Citizenship”.

Up that that point, most Americans likely assumed that delivering physicians and midwives, or state or local clerks, made citizenship determinations when they issued documentation relating to the births of newborns in this country.

If you were one of those people, you are in good company; Justice Kavanaugh asked during a hearing on EO 14160 in May: “What do hospitals do with a newborn? What do states do with a newborn?”

Well, after cutting the umbilical cord, somebody associated with the hospital cleans the newborn (babies are slippery at first), checks the Apgar score, wraps the newborn up (most hospitals aren’t kept at womb temperature), slaps a wristband on the kid, and shows the parents what they’ve done.

As for the state, it will issue some sort of certificate of live birth based on documentation the hospital prepares in the ordinary course.

Neither the hospital nor the state, however, determines whether that child is a citizen. A different relative of mine is an obstetrician with decades of experience in her craft, and let’s just say that having been an immigration judge for eight years, I’ve done more to create new citizens than she has.

Keep those facts in mind as you read EO 14160, which states, at section 2(a):

It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth. {Emphasis added.]

You see, U.S. citizenship is a federal, not a state, matter and it only comes into play when an individual claiming to be a citizen seeks some sort of federal benefit, like a passport, Social Security card, means-tested federal benefit (think food stamps), or to register to vote.

Overly simplistically, what EO 14160 does is direct the federal agencies that oversee those benefits to limit birthright citizenship determinations to those born here on or after the effective date of that EO (originally February 20, 2025) to one or more U.S. citizens or “lawful permanent residents” (the legal term for green-card holders).

The Popular Conception of Birthright Citizenship

No one born before the effective date of EO 14160 – assuming that order is ever allowed to take effect – will lose any status that person was previously found to have, regardless of the immigration status of that person’s parents.

Consequently, that EO is purely “prospective” in impact, as it solely impacts the status of those yet to be born. Legally, it probably had to be purely prospective in this context thanks to what I refer to as the “popular conception of birthright citizenship”.

That concept holds that any newborn who comes into the world on U.S. soil is, automatically, a U.S. citizen, and I refer to it as a “conception” because neither the Supreme Court nor Congress has ever explicitly defined birthright citizenship in that matter in any instance it was at issue.

There have been plenty of laws and opinions in which that conception was assumed, but in the leading case on the matter, the Supreme Court’s 1898 opinion in U.S. v. Wong Kim Ark, the individual claiming citizenship based on birth here was the child of two 19th-century equivalents of green-card holders, not of aliens here unlawfully.

That opinion was, in parts, more expansive in its pronouncements on the scope of birthright citizenship than was necessary for the issues in the case, and in the law we refer to such statements as “dicta”, from the Latin phrase “obiter dictum”, literally “something said in passing”.

Things we say in passing may be interesting (or embarrassing or salacious), but they almost never bind us as a legal matter, and the same is true when courts say them in dicta, as well.

In other words, for more than 127 years the federal government has made millions of decisions that have impacted untold numbers of individuals based on a popular but likely legally unsettled conclusion, even though that conclusion goes to the heart of our most precious right – U.S. citizenship.

“The Chinese Billionaires Having Dozens of U.S.-Born Babies via Surrogate”

Relatives don’t generally ask my opinions about much, let alone immigration-related issues (unless some friend has an issue, then it’s just a free grab at legal advice), but this one was full of questions after reading a December 13 Wall Street Journal article headlined “The Chinese Billionaires Having Dozens of U.S.-Born Babies via Surrogate”.

The headline tells the story, except for one key element: few of those Chinese tycoons have apparently ever been in the United States, the country of birth of their surrogate-born children, and it’s not evident whether any of the egg donors have been, either.

One of the most attractive aspects of the popular conception of birthright citizenship, aside from its simplicity, is the idea that every little baby who first sees the light of day in this country is magically imbued with the rights and protections of U.S. citizenship.

That’s a much better birthday present than a box of Huggies and a Target gift card, and more durable as well.

That magic disappears, however, when you transport zygotes across the ocean and pay surrogates for the development of the fetus and delivery of the baby. Not to blame the kids, but there is something about that process that is unseemly, objectifying, and abusive of our generous nature as a people.

And, if something is unseemly, objectifying, and abusive about billionaires paying surrogates to have U.S.-born children who therefore automatically receive U.S. citizenship, how different is that scenario from one in which pregnant mothers pay smugglers to bring them here to give birth at taxpayers’ expense for the same end goal?

The Best Aspects of the Birthright Citizenship Debate

Hence, the questions, which brings me to the best aspects of the debate over birthright citizenship.

I’ve practiced immigration law for 30-plus years, read the Federalist Papers, learned everything about the 14th amendment’s “citizenship” clause, parsed the major cases, examined the floor debates, and immersed myself in the briefs, and I have my own opinions about who is and who isn’t a citizen at birth.

But even if you haven’t done any of those things, you too can have an opinion, and your opinion is just as valid as mine (and might be closer to what the Supreme Court ultimately decides).

That’s because if, as I think is likely, the Supreme Court’s interpretation rests on whether the citizenry has consented to allowing certain children of aliens to also be considered citizens, our collective opinions will hold more sway on the question than mine does alone.

Such is the value of the citizenship most of us take for granted in nearly every instance, save when we are facing an immigration officer at the airport trying to get back into the country. In this Republic, we are sovereigns, and the government’s sole legitimacy rests on our consent as the governed.

In most instances, aliens think more about all the positive aspects of U.S. citizenship than actual citizens do. The birthright citizenship debate is one of those rare times many of us will sit back and ponder how good we have it and how generously we should share it, and if this debate isn’t good for much else, it’s good for that.