This week, the Supreme Court heard oral arguments in Trump v. Barbara, the most consequential immigration case in decades. The case was brought by the American Civil Liberties Union (ACLU) on behalf of a Honduran national challenging President Trump’s executive order denying citizenship to children born to illegal immigrants and tourists with temporary visas. The question posed was whether the 14th Amendment’s Citizenship Clause guarantees automatic citizenship to every child born on American soil, no matter who the parents are or why they are in the United States.
The 14th Amendment was adopted in post-Civil War 1868 to secure citizenship for freed slaves and their children. But who else is covered? Does that phrase cover children of illegal immigrants, tourists, or temporary visa holders? The prevailing interpretation has been that it does, and that it only excludes children of foreign diplomats, invading soldiers, and members of Native American tribes. (In the case of the latter, Congress passed legislation granting citizenship, just as it did for children born abroad to American parents who are not automatically covered by the 14th Amendment.)
The Key Word
Much of the debate has focused on whether a child is “subject to the jurisdiction” of the United States. But one word in the Citizenship Clause has largely escaped scrutiny: reside.
Here is the clause in full:
“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.”
Perhaps because it comes at the end, it has been treated as an afterthought, but careful reading shows how central the term “reside” is. The clause does not say “are born,” “are physically present,” or “pass through on a tourist visa.” Citizenship is granted only to those who actually “reside,” establishing a precondition for the clause’s application, with “reside” carrying a consistent legal meaning across many areas of American law, including taxes, jury duty, voting, school enrollment, in-state tuition, and family law. It refers to an established, settled presence, in other words, a place where you actually live.
During oral arguments at the Supreme Court, “reside” and its significance drew limited discussion. When the term did come up, it was in relation to the related concept of “domicile,” a term that appears repeatedly in Wong Kim Ark (1898), the leading Supreme Court precedent on the question of birthright citizenship. In that case, a man born to Chinese parents who were legally resident in the U.S. was initially denied citizenship. The Supreme Court reversed that decision, applying the 14th Amendment and emphasizing that his parents had “permanent domicile and residence in the United States.”
Although it is rarely presented this way, a plain reading of the Citizenship Clause creates a two-part test for eligibility. First, is the person “subject to the jurisdiction” of the United States, and second, does the person “reside” in one of the states, with “state” generally understood to include not just the 50 states but also D.C. and other federal territories. Framed this way, the discussion becomes far simpler than the jumble on display in the Supreme Court hearing, where everyone chased their own pet ideas. It is even more efficient when turned around so that the “reside” test comes first, because that is easier to resolve, and if someone does not reside, there is no need to even consider “subject to the jurisdiction.”
Birth Tourism
Birth tourism, especially from China, has grown into a large industry. Agencies market packages to pregnant women who travel to the United States in their third trimester, deliver a child, get a U.S. passport, and fly home. These people do not reside in the United States by any definition or any stretch of the imagination. There is no residency, no home, no lease or mortgage, no driver’s license, no vehicle registration, no neighbors, no family doctor, no bank accounts, no pets, and no children in school. The mother arrives on a tourist visa and leaves with a child. Their connection to the United States begins at the arrival gate and ends at the departure terminal on the return flight.
Even under the notoriously aggressive California Franchise Tax Board, people are not considered residents if they are in California temporarily or for a transitory purpose, exactly like birth tourists.
This provides a clean, textual basis for limiting birthright citizenship without wading into the interpretive mess that dominates the debate, and there is no question that any honest justice who reads the 14th Amendment would find so.
Illegal Immigrants
This leaves the arguably harder case of illegal immigrants. The term “reside” in the 14th Amendment implies lawful residence, in the sense that it is not logical that the Constitution contemplates someone whose presence is illegal. That said, someone living, for instance, in Texas for a decade, raising a family and working, could argue that, in the plain sense of the word, they “reside,” even if they have no lawful immigration status. That does not make the view sound, but the court may very well decide that the word “reside” reflects factual establishment, regardless of legal status. That may be why, at this week’s Supreme Court hearing, the Trump administration’s Solicitor General, John Sauer, focused on the broader term “domiciled,” which carries implications of legal status beyond mere residence.
But none of that complexity touches the simplest case.
Under the broadest conceivable reading, there is no framework in which a temporary visitor satisfies the requirement of residence. The distinction between residing and merely being present is too deeply embedded in both legal doctrine and ordinary language to erase.
‘Jurisdiction’ Test
Even if illegal immigrants are considered to “reside,” they still must meet the second part of the test and be “subject to the jurisdiction” of the United States. This is where most of the arguments have taken place, and this area of the law is far more complex. The liberal side treats this term as meaning that a person is subject to civil and criminal jurisdiction, as reflected in Justice Jackson’s explanation that “If I steal someone’s wallet in Japan, the Japanese authorities can arrest me and prosecute me as a matter of law,” which she then somehow tied to having allegiance to Japan.
Setting aside the confusion in that interpretation, the argument has obvious problems, as illustrated by the fact that Native Americans were excluded from the 14th Amendment because tribal members maintained allegiance to a separate sovereign. In other words, the drafters understood “subject to the jurisdiction” as roughly meaning not owing allegiance to anyone else. As Justice Alito pointed out at oral argument, a child born to an illegal immigrant from Iran “has a duty to provide military service to the Iranian government. Is he not subject to any foreign power?”
One can also consider the example of a tourist in the United States, who must obey local laws but is not subject to broader obligations like military service or jury duty. What jurisdiction, then, is that person truly under? These are complex questions, and there is no simple answer to what “subject to the jurisdiction” fully entails. Suffice it to say, the term must have meaning because if mere presence were enough it would add nothing since anyone in the United States is already subject to its civil and criminal laws.
Conclusion
How this all pans out remains to be seen. Three justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, will vote for broad birthright citizenship. This is not a legal prediction but a political reality.
Clarence Thomas and Samuel Alito will almost certainly follow the text. They have the intellectual consistency to apply the plain meaning of the clause, certainly with respect to birth tourists who do not “reside” in the United States, and likely to illegal immigrants as well.
The remaining four, John Roberts, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett, are in play, and no matter how much one tries to read the tea leaves, we do not know what they will do.
Whatever the outcome, at a minimum, the court should acknowledge that birth tourism is not covered by the 14th Amendment. All it takes is reading one sentence to the end and applying a word everyone understands. If the court cannot hold that line, if five justices cannot agree that a tourist is not a resident, then the words of the Constitution mean nothing.
Hans Mahncke is in-house counsel at a global business advisory firm. He holds LL.B., LL.M. and Ph.D. degrees in law. He is the author of "Swiftboating America: Exposing the Russiagate Fraud, from the Steele Dossier to the FBI's Crossfire Hurricane Investigation."
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