A Possible Compromise in the Birthright Citizenship Case

WASHINGTON - March 29, 2026 - PRLog -- There might be a possible compromise between the two extreme positions being taken in the birthright citizenship case - one which does not totally ignore the "subject to the jurisdiction thereof" cause of the Fourteenth Amendment - suggests public interest law professor John Banzhaf.

Banzhaf explains that President Trump's January 2025 Executive Order 1416 relies on that "jurisdiction thereof" cause. . . .

In stark contrast, those challenging Trump's order seemingly ignore the "jurisdiction thereof" clause . . .

Challengers rely primarily upon the 1898 decision in United States v. Wong Kim Ark  . . .

But, notes Banzhaf, the Court recognized that both Chinese parents were lawfully in the U.S. at the time. . .

Therefor the decision clearly did not hold that all children of mothers physically but illegally present in the U.S. is automatically granted U.S. citizenship.

In addition the Ark Court expressly recognized that the amendment did not grant citizenship to all persons who were born in the U.S. and thus arguably subject to its laws. . .

The need to give effect to - and not just ignore - this clause is especially strong here because the words were not included in the original draft of the proposed amendment.  . .

Fortunately, just such an interpretation is not only possible but also quite logical, says law professor John Banzhaf. . .

One logical and common sense way to give effect to the "jurisdiction thereof" phrase is to recognize that someone who has just illegally snuck across the border after fleeing from his country of birth, deliberately remains well hidden, and has no domicile and residence in the U.S., can hardly be said to be subject to the jurisdiction of the U.S. (and perhaps of any country) in any realistic sense. . . .

So, in that case the Supreme Court "squarely rejected the premise that anyone born in U.S. territory, no matter the circumstances, is automatically a citizen so long as the federal government can regulate them," . . .

Thus, for all of these reasons, Justices seeking to uphold at least part of Trump's order could rule this way, suggests Prof. Banzhaf:

ONE -  Children born in the U.S. to mothers who came into the U.S. illegally - and if the father is not a U.S. citizen or lawful permanent resident (LPR) - do not automatically acquire all the rights of U.S. citizenship by birth; BUT

TWO -  Children born in the U.S. to mothers whose presence at the time was lawful, even though temporary (e.g., on a student, work, tourist, or visa-waiver visa) do automatically acquire all the rights of U.S. citizenship.

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