Trump’s Birthright Case: Irrefutable
Some justices are ignoring key arguments in birthright citizenship case.
Joe Fried | April 4, 2026 www.americanthinker.com
I listened intently to the Supreme Court’s oral arguments regarding birthright citizenship. It seems that some justices are ignoring key arguments in the case.
There is a residency requirement in the Citizenship Clause
In January 2025, President Trump signed an executive order ending birthright citizenship for children born in the United States to parents who are either undocumented or in the country legally but on a temporary basis. The ACLU challenged the executive order, and the Supreme Court is considering the case. Solicitor General John Sauer is arguing on behalf of the Trump Administration.
Part of General Sauer’s case is simple and irrefutable: Most people should not gain citizenship via birth tourism. It is an atrocious policy, and it does not meet the express written requirements of the Citizenship Clause of the 14th Amendment to the Constitution.
To his credit, Justice Clarence Thomas was quick to emphasize that fact. Certain words in the Citizenship Clause preclude the provision of citizenship for most people engaged in birth tourism.
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).
In other words, there is a residency (or domicile) requirement, and that requirement cannot be not met by most people engaged in birth tourism. Typically, a woman flies to the U.S., delivers a baby, spends a few days in a hospital or birthing center, and flies home. She enters the country legally but doesn’t spend enough time in the U.S. to establish residency (domicile).
Based on what I heard in the oral arguments, there are other justices who understand and appreciate the domicile requirement. They are Alito, Kavanaugh, and Barrett.
On the other hand, John Roberts and the three liberal justices were indifferent to the clearly-worded requirements in the Citizenship Clause.
Sauer informed the Court that there are hundreds of birth tourism companies and may be over a million birth tourists (U.S. citizens) living in China. Most of those tourists had babies but did not establish residency in the United States. Nevertheless, Roberts was not impressed:
ROBERTS: Well, it certainly wasn't a problem in the 19th century.
SAUER: No, but, of course, we're -- we're in a new world now, as Justice Alito pointed out to, where 8 billion people are one plane ride away from having a -- a child who's a U.S. citizen.
ROBERTS: Well, it's a new world. It's the same Constitution.
The flippant comment of Justice Roberts (“It’s the same Constitution”) dismisses the importance of the residency requirement, even though it is expressly stated in the 14th Amendment.
Case law also has a domicile requirement
As an argument against the Trump Administration, Justice Sonia Sotomayor brought up a key immigration case from 1898: Wong Kim Ark. In that case, the Court ruled that individuals born on U.S. soil are citizens under the 14th Amendment, regardless of their parents' foreign citizenship.
However, Sotomayor overlooked the fact that, although the parents of Wong Kim were Chinese citizens, they were domiciled in the United States. The importance of that fact is evident from the concluding words of the court’s opinion:
We’ve decided that Chinese immigrants with a permanent domicile and residence here fall within the rule of birthright citizenship (emphasis added).
Justice Elena Kagan did not overlook the domicile requirement -- she simply does not believe it is important. That is evident from her blathering counterargument:
You say, oh, it says the word “domicile” a bunch of times, which it does. It’s a long opinion. It says a lot of things.
In reality, there is a domicile requirement in both the Citizenship clause of the constitution and in the crucial Wong Kim Ark case of 1898. Roberts and the other liberal justices are simply choosing to pretend it is not there.
Is the child of an illegal immigrant a citizen?
So far we have discussed birth tourism, where people enter the country legally, but stay for a very short time. What about people who enter illegally and stay for an extended period of time? Can they establish a domicile? If so, should their children be granted citizenship? To answer those questions we must focus on five specific words in the Citizenship Clause: subject to the jurisdiction thereof.
If a person is born in the U.S. and is subject to the jurisdiction thereof, our Constitution grants him or her citizenship. But, what exactly is “jurisdiction”? On that topic General Sauer had lots of facts but his arguments were probably too confusing to be persuasive to a skeptical Supreme Court.
The three liberals, who have suddenly become Scalia-styled “originalists,” argued that the Citizenship Clause originates from British law, and is essentially unchanged since the era of the Sovereign: King George III.
Justice Kagan again made reference to the Wong Kim Ark case, emphasizing its “English law rationale.”
But the rationale of the case is really quite clear. It says there was this common law tradition. It came from England. We know what it was. Everybody got citizenship by birth except for a few discrete categories...
AG Sauer disputed many of Kagan’s assertions regarding the Ark case, but the entire matter became muddled enough to easily allow the liberals on the court (and I include Roberts in that category) to weasel their way out of a sane ruling.
Here are some of the confusing issues: Does jurisdiction imply “allegiance” to the nation? If so, whose allegiance -- the parent’s or the child’s? And does it matter if the illegal alien is subject to a foreign power?
Other ambiguities are inherent in implementation. For example, does it matter if the illegal alien is or is not evading law enforcement? Does it matter if the illegal entrant has been in the country a week or for ten years?
Those are issues are confusing to most justices, but not to Ketanji Jackson. She sees the issue of allegiance with amazing clarity:
I was thinking, you know, I’m a U.S. citizen and visiting Japan and what it means is that, you know, if I steal someone’s wallet in Japan, the Japanese authorities can arrest me and prosecute me. It’s allegiance, meaning, they can control you as a matter of law.... So there’s this relationship...
Thus, to Jackson, people can gain citizenship by picking pockets!
As a matter of strategy, it might have been better if President Trump had limited the executive order to the relatively clear issue of temporary visitors who do not establish residency. If that were the sole issue, there might be a chance for a 5-4 victory.
Serious implications for fair elections and national security
The estimated number of U.S. citizens being raised in China is huge -- ranging from the thousands to over a million. A March 19, 2026 article in the New York Post described the situation this way:
China-watchers estimate about 1,000 companies offer birth tourism to the Northern Mariana Islands, other US overseas territories and even the US mainland. They claim a gob-smacking 1.5 million American babies are being raised in China by Chinese parents who’ve participated in birth tourism.
Based on U.S. and state election laws, they are all potentially U.S. voters -- even if they never set foot in the United States again.
Several states, mostly the ones controlled by Democrats, allow people who have never resided in the United States to vote from abroad, based on their parents’ last U.S. residence.
And each of the 50 states allows absentee voting by people after they have established residency. That is not hard to do. For most states, residency can be established in only 15 to 30 days.
As these tourism babies reach the age of 18, they could become a huge factor in swing state elections -- especially if their voting is directed and coordinated by the Chinese government.
For whom will they vote? I wonder.