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.