    [House Hearing, 119 Congress]
    [From the U.S. Government Publishing Office]

                   ``SUBJECT TO THE JURISDICTION THEREOF'':
                         BIRTHRIGHT CITIZENSHIP AND THE
                              FOURTEENTH AMENDMENT

    =======================================================================

                                    HEARING

                                   BEFORE THE

                      SUBCOMMITTEE ON THE CONSTITUTION AND
                               LIMITED GOVERNMENT

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED NINETEENTH CONGRESS

                                 FIRST SESSION
                                   __________

                           TUESDAY, FEBRUARY 25, 2025
                                   __________

                                Serial No. 119-6
                                   __________

             Printed for the use of the Committee on the Judiciary

                   [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov
                                     ______

                       U.S. GOVERNMENT PUBLISHING OFFICE

    59-353                     WASHINGTON : 2025

                           COMMITTEE ON THE JUDICIARY

                            JIM JORDAN, Ohio, Chair

    DARRELL ISSA, California             JAMIE RASKIN, Maryland, Ranking
    ANDY BIGGS, Arizona                    Member
    TOM McCLINTOCK, California           JERROLD NADLER, New York
    THOMAS P. TIFFANY, Wisconsin         ZOE LOFGREN, California
    THOMAS MASSIE, Kentucky              STEVE COHEN, Tennessee
    CHIP ROY, Texas                      HENRY C. ``HANK'' JOHNSON, Jr.,
    SCOTT FITZGERALD, Wisconsin            Georgia
    BEN CLINE, Virginia                  ERIC SWALWELL, California
    LANCE GOODEN, Texas                  TED LIEU, California
    JEFFERSON VAN DREW, New Jersey       PRAMILA JAYAPAL, Washington
    TROY E. NEHLS, Texas                 J. LUIS CORREA, California
    BARRY MOORE, Alabama                 MARY GAY SCANLON, Pennsylvania
    KEVIN KILEY, California              JOE NEGUSE, Colorado
    HARRIET M. HAGEMAN, Wyoming          LUCY McBATH, Georgia
    LAUREL M. LEE, Florida               DEBORAH K. ROSS, North Carolina
    WESLEY HUNT, Texas                   BECCA BALINT, Vermont
    RUSSELL FRY, South Carolina          JESUS G. ``CHUY'' GARCIA, Illinois
    GLENN GROTHMAN, Wisconsin            SYDNEY KAMLAGER-DOVE, California
    BRAD KNOTT, North Carolina           JARED MOSKOWITZ, Florida
    MARK HARRIS, North Carolina          DANIEL S. GOLDMAN, New York
    ROBERT F. ONDER, Jr., Missouri       JASMINE CROCKETT, Texas
    DEREK SCHMIDT, Kansas
    BRANDON GILL, Texas
    MICHAEL BAUMGARTNER, Washington

                                     ------

            SUBCOMMITTEE ON THE CONSTITUTION AND LIMITED GOVERNMENT

                             CHIP ROY, Texas, Chair

    TOM McCLINTOCK, California           MARY GAY SCANLON, Pennsylvania,
    THOMAS MASSIE, Kentucky                Ranking Member
    HARRIET HAGEMAN, Wyoming             STEVE COHEN, Tennessee
    WESLEY HUNT, Texas                   PRAMILA JAYAPAL, Washington
    GLENN GROTHMAN, Wisconsin            JOE NEGUSE, Colorado
    MARK HARRIS, North Carolina          BECCA BALINT, Vermont
    ROBERT F. ONDER, Jr., Missouri       SYDNEY KAMLAGER-DOVE, California
    BRANDON GILL, Texas                  DANIEL S. GOLDMAN, New York

                   CHRISTOPHER HIXON, Majority Staff Director
                      JULIE TAGEN, Minority Staff Director

                                C O N T E N T S

                                  ----------

                           Tuesday, February 25, 2025

                               OPENING STATEMENTS

                                                                       Page
    The Honorable Chip Roy, Chair of the Subcommittee on the
      Constitution and Limited Government from the State of Texas....     1
    The Honorable Mary Gay Scanlon, Ranking Member of the
      Subcommittee on the Constitution and Limited Government from
      the State of Pennsylvania......................................     4

                                   WITNESSES

    Charles J. Cooper, Chair, Founding Partner, Cooper and Kirk PLLC
      Oral Testimony.................................................     7
      Prepared Testimony.............................................    10
    R. Trent McCotter, Partner, Boyden Gray PLLC
      Oral Testimony.................................................    40
      Prepared Testimony.............................................    42
    Matt O'Brien, Director of Investigations, Immigration Reform Law
      Institute
      Oral Testimony.................................................    89
      Prepared Testimony.............................................    91
    Amanda Frost, Professor of Law, University of Virginia School of
      Law
      Oral Testimony.................................................    98
      Prepared Testimony.............................................   100

              LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

    All materials submitted by the Subcommittee on the Constitution
      and Limited Government, for the record.........................   140

    A written statement submitted by the Honorable Jamie Raskin,
      Ranking Member of the Committee on the Judiciary from the State
      of Maryland, for the record
    An article entitled, ``The New Face of Birth Tourism: Chinese
      Nationals, American Surrogates, and Birthright Citizenship,''
      Jul. 15, 2024, The Heritage Foundation, submitted by the
      Honorable Harriet Hageman, a Member of the Subcommittee on the
      Constitution and Limited Government from the State of Wyoming,
      for the record
    Materials submitted by the Honorable Mary Gay Scanlon, Ranking
      Member of the Subcommittee on the Constitution and Limited
      Government from the State of Pennsylvania, for the record
        A statement from The Leadership Conference on Civil and Human
            Rights, Feb. 25, 2025
        An article entitled, ``Barbara Jordan Dies at 59; Her Voice
            Stirred the Nation,'' Jan. 18, 1996, The New York Times
    Materials submitted by the Honorable Chip Roy, Chair of the
      Subcommittee on the Constitution and Limited Government from
      the State of Texas, for the record
        An Amicus Brief from State of Washington, et al. v. Donald J.
            Trump, et al., Feb. 2, 2025
        An article abstract entitled, ``Subject to the [Complete]
            Jurisdiction Thereof: Salvaging the Original Meaning of
            the Citizenship Clause,'' Feb. 12, 2020, Texas Law Review
            & Politics
        An article entitled, ``Why Trump Is Right About Birthright
            Citizenship,'' Feb. 9, 2025, Wall Street Journal

                   ``SUBJECT TO THE JURISDICTION THEREOF'':
                        BIRTHRIGHT CITIZENSHIP AND THE
                            FOURTEENTH AMENDMENT

                                  ----------

                           Tuesday, February 25, 2025

                            House of Representatives

            Subcommittee on the Constitution and Limited Government

                           Committee on the Judiciary

                                 Washington, DC

        The Subcommittee met, pursuant to notice, at 2:23 p.m., in
    Room 2141, Rayburn House Office Building, the Hon. Chip Roy
    [Chair of the Subcommittee] presiding.
        Present: Representatives Roy, Jordan, McClintock, Hageman,
    Hunt, Grothman, Harris, Onder, Gill, Scanlon, Raskin, Jayapal,
    Balint, Kamlager-Dove, and Goldman.
        Also present: Representative Biggs.
        Mr. Roy. The Subcommittee will come to order.
        Without objection, the Chair is authorized to declare a
    recess at any time.
        We welcome everyone to today's hearing on birthright
    citizenship.
        I will now recognize myself for an opening statement.
        As Supreme Court Justice Louis Brandeis once wrote,

            The most important office, and the one which all of us can and
            should fill, is that of private citizen.

    This hearing is on the issue foundational to our Republic: Who
    is an American citizen by birthright?
        Section 1 of the 14th Amendment grants citizenship to all
    persons who are, quote, ``born or naturalized in the United
    States and subject to the jurisdiction thereof.'' It is the
    latter clause, ``subject to the jurisdiction thereof,'' that we
    will examine today in significant part. Our inquiry is simple.
    What was the original public meaning of the jurisdiction
    clause?
        The 14th Amendment was drafted to rectify the terrible
    decision in the 1857 Dred Scott v. Sandford case by recognizing
    former slaves as rightful Americans.
        As we'll learn from our witnesses today, the answer is
    clear: The jurisdiction clause, as originally understood,
    grants birthright citizenship only to children whose parents
    have full, exclusive allegiance to the United States. The
    Constitutional text in history shows that children of illegal
    aliens and illegal aliens who are in the United States
    temporarily are not citizens by birthright under the 14th
    Amendment.
        For decades, proponents of automatic birthright citizenship
    have claimed the 14th Amendment and the Wong Kim Ark case
    bestows automatic citizenship to all children born to foreign
    nationals, including illegal aliens. This is a blatant
    misunderstanding of both items, resulting in birthright
    citizenship serving as a driving force of illegal immigration
    to the United States, as many illegal aliens and temporary visa
    holders know they can reap the benefits of their child's
    citizenship.
        President Trump's first-day Executive Order on birthright
    citizenship restored the 14th Amendment to this original
    meaning. Despite what you may hear on the news, some of the
    most respected legal scholars agree with the Constitutional
    interpretation outlined in President Trump's Executive Order.
    Some of these legal scholars include those here on this panel
    today.
        Our witnesses will dive into the history of the 14th
    Amendment and Congress and the Supreme Court, but I'll give you
    a brief version.
        The drafters of the 14th Amendment understood not to grant
    citizenship to persons, quote, ``owing allegiance to any
    foreign sovereignty.'' In the first cases decided after
    ratification, the Supreme Court held that ``jurisdiction'' in
    the 14th Amendment means not nearly subject in some respect or
    degree to the jurisdiction of the United States but
    completely--but completely--subject to their political
    jurisdiction and owing them direct and immediate allegiance.
        Of course, illegal aliens and legal temporary United States
    residents do not owe complete, direct, and immediate allegiance
    to the United States. Therefore, their children are not
    citizens by birthright under the 14th Amendment.
        Now, I'm sure we'll hear a lot from our colleagues on the
    other side of the aisle about Supreme Court precedent as well,
    so let us make one thing clear at the outset: The Supreme Court
    has never held that children of illegal aliens or aliens who
    are in the United States temporarily are entitled to birthright
    citizenship. President Trump's Executive Order is consistent
    with Supreme Court precedent.
        I'd also like to emphasize the purpose of today's hearing.
    We're here to discuss an important Constitutional question--
    this is, after all, the Constitution Subcommittee--and I hope
    that we can keep our focus on the text and history of the 14th
    Amendment. No doubt, some of the policy implications will come
    up, and it would be a disservice not to at least mention those
    important issues implicated by the Constitutional question.
        In addition to twisting the Constitution, a court precedent
    conferring automatic citizenship is a bad policy. It devalues
    the meaning of American citizenship by bestowing it to the
    children of lawbreakers who entered the United States without
    the consent of its people, almost rewarding them for
    trespassing into our country's soil.
        To add context, an estimated 124,000-300,000 so-called
    ``anchor babies,'' which are children born to illegal aliens,
    are born each year, according to the Center for Immigration
    Studies. In 2023, up to 250,000 children were born to illegal
    aliens in 2023, which accounted for seven percent of total
    births in the Nation that year.
        Moreover, it further strains government programs that are
    already strained. For example, in terms of Supplemental
    Nutrition Assistance, SNAP, which provides school meals,
    Americans shell out $5 billion each year in SNAP and food
    stamps for the U.S.-born children of illegal aliens, according
    to a 2023 report by the Federation for American Immigration
    Reform.
        If one looks at the amount illegal aliens and their U.S.-
    born children are projected to consume in Federal welfare
    program benefits, the American taxpayer foots an even larger
    bill. Take, for example, in a July 2024 report, the
    Congressional Budget Office, which answers to us, concluded
    that the Federal Government is projected to spend $177 billion
    in welfare benefits to illegal aliens and their U.S.-born
    children over the next 10 years. Now, mindful, that is a larger
    population, but it is clear that the birthright citizenship
    issue implicates those issues. This $177 billion includes
    Medicaid, SSI, Obamacare premium tax credits, food stamps, and
    more.
        Ending universal birthright citizenship and thereby ending
    ``birth tourism,'' a practice in which pregnant women travel to
    the United States to give birth and secure citizenship for
    their children, is good policy. Birth tourism diverts U.S.
    medical resources away from our own mothers and babies and
    allows shady and unscrupulous birth tourism quote, ``agencies
    to prey on expectant mothers.''
        According to a 2020 study, there are between 20,000-26,000
    foreign tourists in the U.S. giving birth on our soil annually.
    As far back as 2008, the CEO of the McAllen, Texas, Medical
    Center, where about 40 percent of births were to illegal-alien
    mothers, stated that, quote, ``Mothers about to give birth walk
    up to the hospital clearly having just swam across the river in
    actual labor.''
        Just as concerningly, adversaries like China are abusing
    universal birthright citizenship and practicing birth tourism
    to nestle deeper into U.S. society, which carries security
    concerns. In 2018, Georgetown Law's O'Neill Institute wrote the
    following:

            Women from foreign countries, mainly China and Russia, are
            paying tens of thousands of dollars to temporarily relocate to
            the United States during their pregnancy in order to give birth
            in the United States and thereby guarantee U.S. citizenship for
            their child.

        To shed light on the magnitude of this abuse, China hosts
    over 500 companies offering birth tourism services, resulting
    in more than 50,000 Chinese nationals delivering babies in the
    United States every year, according to a 2019 estimate. The
    Constitution does not require us to allow this practice, and we
    should not.
        Even late Senate Democrat Majority Leader Harry Reid
    recognized the disastrous policy implications of birthright
    citizenship, as he opposed automatic citizenship for children
    born to foreigners. He said the following in a 1993 speech on
    the Senate floor:

            If making it easy to be an illegal alien isn't enough, how
            about offering a reward for being an illegal immigrant? No sane
            country would do that, right?

    He continued:

            Guess again. If you break our laws by entering this country
            without permission and give birth to a child, we reward that
            child with U.S. citizenship and guarantee a full access to all
            public and social services this society provides. And that's a
            lot of services.

    That is Harry Reid, the former Democrat leader in the U.S.
    Senate.
        Senator Reid was right in his observation. No sane country
    would enable a foolish policy like automatic citizenship to
    children born to foreigners, especially illegal aliens.
    Congress should heed his warning.
        Put simply, the Framers of the 14th Amendment did not
    intend for universal citizenship to children born to all
    classes of foreigners. Nor did the judges in the Wong Kim Ark
    case rule on the question of citizenship beyond the children of
    lawful permanent residents, including those born to illegal
    aliens and temporary visitors.
        There's one more point I'd like to make in closing.
    Congress is where the debate over birthright citizenship should
    be happening. In fact, my friend from Texas, Representative
    Brian Babin, his legislation, the Birthright Citizenship Act,
    would fix this policy gap and restore the practice of granting
    U.S. citizenship as intended in the 14th Amendment.
        Section 8, Article I, Section 5 of the 14th Amendment,
    grant us power over questions of citizenship. President Trump's
    Executive Order rightly returns that power to us, and, in doing
    so, it returns us to the reasonable, commonsense interpretation
    of the 14th Amendment when it was ratified in 1868.
        I now recognize the Ranking Member, Ms. Scanlon, for her
    opening statement.
        Ms. Scanlon. Mr. Chair, since this is our first hearing of
    the new Congress, I'd like to say that I am anticipating we
    will continue to have a vigorous exchange of ideas in this
    Committee room, and I imagine we'll tackle some interesting and
    thorny legal disputes throughout this term.
        However, I have to admit that today's topic probably won't
    meet that expectation, because, for more than a century, there
    have been few legal questions as open-and-shut as whether being
    born in the United States makes someone a United States
    citizen.
        This is a little bit of a spoiler alert here. I'll skip
    ahead and tell you right now: It does. Frankly, to suggest
    otherwise is nothing but a blatant and disingenuous attempt to
    rewrite our Nation's history and the very words of the
    Constitution.
        Contrary to the Chair's assertions, the history of the
    amendment does not support the interpretation that he and his
    colleagues are pressing. I beg to differ with his assertion
    that it's only been a few decades of people making the
    interpretation which has been in effect for over a century.
        Now, rewriting history and ignoring the rule of law has
    become a feature, not a bug, under the Trump Administration,
    but it's one that Congress has a Constitutional obligation to
    prevent rather than enable.
        So, why are our Republican colleagues questioning the plain
    and long-settled meaning of the birthright citizenship clause?
    Simply put, it's because President Trump and his allies in
    Congress think there's something to gain politically by
    stripping an entire group of American citizens of their rights,
    their votes, their very identities, and turning them and their
    descendants into a permanent underclass.
        They want to decide who they deem worthy of being a citizen
    of our country and who isn't based on who their parents are and
    where their parents are from. In an act of really cynical
    irony, they want to, in essence, resurrect the rationale behind
    the Dred Scott decision that the 14th Amendment was written to
    reject once and for all.
        Our history, our quest for a more perfect Union, has always
    been about expanding opportunity and civic participation, not
    ripping it away. Broadening our electorate has been an
    important part of that progress, including through
    Constitutional amendments that guarantee citizenship and
    franchisement regardless of race, women's suffrage, and more.
    In doing so, we've sought to make our country and its
    government more representative, more fair, and more perfect.
        That's a goal, a vision, that all patriotic Americans
    should share. Any attempt to radically reinterpret the
    Citizenship Clause serves only to further the goal of Right-
    wing extremists to unconstitutionally limit who can have a
    political voice in this country.
        Donald Trump's unconstitutional Executive Order to end
    birthright citizenship, along with legislative efforts by
    Republicans in Congress to do the same, would drag us backward,
    ensuring a government that's not for ``the'' people but for
    ``some'' people. It's the absolute antithesis of the promise of
    America.
        It's been 150 years since the 14th Amendment enshrined
    birthright citizenship into the Constitution. In that time, the
    U.S. has been made better by the contributions of Americans
    born here to immigrant parents, regardless of where their
    parents came from or their parents' citizenship status.
        Overturning birthright citizenship would hurt our Nation
    and deeply imperil our ability to continue striving for a
    better future. It would impact all Americans by creating a
    logistical nightmare. Bureaucracy would invade our maternity
    wards, with States and hospitals being forced to investigate
    which babies do or don't qualify for citizenship.
        More troublingly, though, ending birthright citizenship
    would create a legal caste system based on the status of one's
    parents. Instead of citizens, the U.S. would develop a
    permanent underclass of stateless, not-legally recognized
    subjects who could be exploited or deported at the mercy of a
    political majority.
        That would be a twisted reflection of the intended purpose
    of the 14th Amendment, because the language chosen by the
    amendment's Framers in the aftermath of the Civil War was to
    prevent this kind of caste system from ever returning.
        So, if our Republican colleagues want to have a legal
    argument today, here it is:

            The American children of undocumented immigrants and the
            American children of those here on visas, such as for work or
            study, are indeed persons born here in America. At the moment
            of their birth, they're subject to the laws of the United
            States, with an undeniable Constitutional claim to the rights,
            duties, and protections of that reciprocal relationship.

    In other words, citizenship.
        The 14th Amendment's guarantee that all persons born in the
    United States and subject to the jurisdiction thereof are
    citizens of the United States--and that's the quote--clearly
    applies to those individuals.
        The plain text of that clause is about as straightforward a
    statement of American law as you can get, but there's
    additional support throughout the legislative history of this
    clause. In the debates on the passage of this amendment over a
    century ago, Congress clearly defined the intent and purpose of
    the birthright citizenship clause and rejected the types of
    arguments being advanced against it today.
        Similarly, the Supreme Court considered and rejected
    arguments against the plain meaning of the amendment in the
    case of the United States v. Wong Kim Ark way back in 1898.
    Subsequent cases have rejected the proposition being advanced
    by our colleagues today that the children of certain immigrants
    born in the United States should be denied citizenship, because
    it's unconstitutional.
        Clearly, the law and history support that straightforward
    conclusion. That's why four Federal judges have already blocked
    the President's Executive Order attempting to end birthright
    citizenship. One of those judges, Judge Coughenour, a Reagan
    appointee, told Trump's DOJ lawyers the Executive Order was,
    quote, ``blatantly unconstitutional.'' In fact, he said in the
    courtroom--and I would hate to have been the lawyer on the
    receiving end of this--he had, quote, ``difficulty
    understanding how a member of the bar would state unequivocally
    that this is a Constitutional order.'' Noting that it boggled
    his mind.
        Flimsy arguments aside, ultimately, a President cannot
    unilaterally repeal a Constitutional amendment. Any elementary
    student of civics knows the only way to repeal an amendment is
    with another amendment. Remember prohibition? The 18th
    Amendment to the Constitution outlawed the sale and manufacture
    of alcohol in 1919, and it was repealed by the 21st Amendment
    in 1933.
        There's the rub: Americans overwhelmingly support
    birthright citizenship. Presidents and extremists like Stephen
    Miller who have championed the idea know that they don't have
    the votes to pass a Constitutional amendment to repeal
    birthright citizenship, much less get the approval of three-
    quarters of the States to make it law. So, instead, they're
    trying to do an end-run on the Constitution, with a tortured
    and unconstitutional reading of the English language and more
    than a century of legal analysis.
        Our Republican colleagues are here today trying to enable
    the President as he pushes his wager that his Supreme Court,
    the one he stacked, will ratify his illegal attempt to amend
    the Constitution without the consent of the American people.
        As a Congress, as a government, as a Nation, we should not
    be in the business of turning back the clock and allowing or
    pushing our country to backslide into the most shameful parts
    of its past. Instead, we should be passing laws that guide it
    toward the light of a brighter future, one in which our most
    fundamental American principles and the promise to form a more
    perfect Union ring true for all rather than just for a
    privileged few.
        That more just, that more fair America--and the policies
    that actually get us there is what I and my Democratic
    colleagues would rather use this Committee to fight for.
        I yield back.
        Mr. Roy. Not seeing either the Chair or Ranking Member,
    we'll move forward. Without objection, all other opening
    statements will be included in the record.
        We will now introduce today's witnesses.
        Mr. Charles Cooper. Mr. Cooper is the Chair and founding
    partner of Cooper & Kirk, PLLC, a boutique law firm in
    Washington, DC. He has spent more than 30 years in private
    practice and has argued nine cases before the U.S. Supreme
    Court. He previously served in the Department of Justice and
    was a law clerk to Justice William Rehnquist.
        Mr. R. Trent McCotter. Mr. McCotter is a partner at Boyden
    Gray, PLLC, where he litigates in Federal Court and before
    Federal agencies. He previously served as a Deputy Associate
    Attorney General, where he oversaw the Department's Civil,
    Appellate, and Federal Programs Branches. He also previously
    served as a Federal prosecutor with the U.S. attorney for the
    Eastern District of Texas--of Virginia. A slip. It comes right
    out.
        Mr. Matt O'Brien. Mr. O'Brien is the Director of
    Investigations at the Immigration Reform Law Institute, where
    he oversees IRLI's investigations into fraud, waste, and abuse
    in the application and enforcement of the Nation's immigration
    laws. He previously served as an immigration judge and in
    various positions with the Department of Homeland Security.
        Professor Amanda Frost. Ms. Frost is the David Lurton
    Massee, Jr., Professor of Law at the University of Virginia.
    That's my undergraduate alma mater. Professor Frost's research
    focuses on immigration and citizenship law, Federal courts and
    jurisdiction, and judicial ethics.
        We thank our witnesses for appearing today.
        We'll begin by swearing you in. Would you please rise and
    raise your right hand?
        Do you swear or affirm, under penalty of perjury, that the
    testimony you are about to give is true and correct to the best
    of your knowledge, information, and belief, so help you God?
        Let the record reflect that the witnesses have answered in
    the affirmative.
        Thank you. Please be seated.
        Please know that your written testimony will be entered
    into the record in its entirety. Accordingly, we ask that you
    summarize your testimony in five minutes.
        Mr. Cooper, you may begin.

                     STATEMENT OF CHARLES J. COOPER

        Mr. Cooper. Thank you very much, Chair Roy--
        Mr. Roy. Mr. Cooper, I think--is your microphone--thank
    you, sir.
        Mr. Cooper. Good afternoon to Members of the Committee.
        I am especially pleased to be here to explore with you the
    meaning of six words of the Citizenship Clause of the 14th
    Amendment: ``and subject to the jurisdiction thereof.''
        The recurring debate over the meaning of these words boils
    down to a choice between two alternatives. Does it mean subject
    merely to the regulatory jurisdiction of the United States?
    That is, subject to the laws of the United States, as is
    virtually everyone on United States soil, including aliens who
    are here illegally or are here for the purpose of bearing a
    child to make it an American citizen? Or does the jurisdiction
    of the United States mean something more than that? The full
    and complete jurisdiction, requiring an allegiance that comes
    from a permanent, lawful commitment to make the United States
    one's home, the place where one permanently and lawfully
    resides?
        I believe that this latter interpretation is compelled by
    the Citizenship Clause's text, structure in history, as well as
    by common sense.
        I have time for just a couple of brief opening points.
        First, the text of the clause. If ``subject to the
    jurisdiction of the United States'' means nothing more than the
    duty of obedience to the laws of the United States, why did its
    Framers choose such a strange way to say that? Why didn't they
    just say ``subject to the laws of the United States?'' Doing so
    would've been quite natural, given that this straightforward,
    unambiguous phrase is used in both Article III and Article VI.
        The clause also ensures that birthright citizenship makes
    newborns citizens of both the United States and of the States
    wherein they reside--that is, where they live, their home. This
    word, standing alone, implies a lawful permanent residence. It
    plainly excludes tourists and other lawful visitors, as well as
    illegal aliens, who are prohibited by law from residing in a
    State, although they all must obey our laws.
        Second, the history of the clause. The clause was framed by
    the 39th Congress to Constitutionalize the Civil Rights Act of
    1866, which had been passed by that same Congress just two
    months earlier. The 1866 act explicitly denied birthright
    citizenship to persons, quote, ``subject to any foreign
    power,'' and to, quote, ``Indians not taxed.''
        It is clear from the debate in the 39th Congress that
    Congress decided to replace this language with ``subject to the
    jurisdiction thereof'' not because Congress suddenly and
    without any comment decided to broaden the scope of birthright
    citizenship from the act; rather, Congress was concerned that
    the phrase ``Indians not taxed'' language generated uncertainty
    about the citizenship status of the children of Indians,
    primarily rich and poor Indians.
        The dispute is best captured by this comment from Senator
    Trumbull, who wanted to replace the words ``Indians not taxed''
    even though he was the principal author of the 1866 act. He
    said this:

            I am not willing to make citizenship in this country depend on
            taxation. I am not willing, if the Senator from Wisconsin is,
            that the rich Indian residing in New York shall be a citizen
            and the poor Indian residing in the State of New York shall not
            be a citizen.

    This comment reflects two important points about the intended
    meaning of the clause by its authors, I think.
        First, they intended that the children of Tribal Indians
    who resided on reservations and owed their direct allegiance to
    their Tribes would not be entitled to birthright citizenship,
    but the children of assimilated Indians who had left their
    reservations and had established permanent residence among the
    body politic of the States would be entitled to birthright
    citizenship.
        Second, it is not at all plausible that the Framers of the
    Citizenship Clause intended that Tribal Indians be able to
    evade this limitation on birthright citizenship for their
    children by the simple expedient of leaving the reservation
    long enough to give birth to a child.
        The key distinction between Tribal Indians and assimilated
    Indians was allegiance. Tribal Indians owed their direct
    allegiance to the Tribe, while an Indian who established a
    permanent domicile within the State and assimilated into the
    body politic committed his primary allegiance to the United
    States and, thus, entitled his children to citizenship at
    birth.
        The Supreme Court's 1884 decision in Elk v. Wilkins
    confirmed this understanding essentially, ruling that the
    clause requires persons to be completely subject to the
    political jurisdiction--political jurisdiction--of and owing
    direct and immediate allegiance to the United States.
        I'll make one final point. The Supreme Court's 1898
    decision in Wong Kim Ark had nothing to do with the children of
    illegal aliens or aliens lawfully but temporarily admitted to
    the country. The court carefully framed the issue before it
    twice in verbatim terms as involving, quote,

            A child born in United States of parents of Chinese descent who
            have a permanent domicil and residence in the United States.

        Thank you, Mr. Chair.
        [The prepared statement of Mr. Cooper follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Roy. Thank you, Mr. Cooper.
        We will now move to Mr. McCotter, and I welcome you for
    your opening statement.
        I will note, Ms. Frost, we've gone over a little bit of
    time. I'll give you ample time as well.
        Mr. McCotter, please proceed.

                     STATEMENT OF R. TRENT McCOTTER

        Mr. McCotter. Chair Roy, Ranking Member Scanlon, and
    distinguished Members of the Committee.
        The 14th Amendment confers citizenship on any person who
    was both born or naturalized in the United States and subject
    to the jurisdiction thereof. Each of those clauses invokes a
    specialized term of art. In other words, it doesn't mean what
    it might mean at first glance.
        For example, courts have held as recently as four years ago
    that those born in U.S. territories are not covered by the
    Citizenship Clause despite being literally born in the United
    States. Similarly, for the jurisdiction clause, it invokes the
    historic doctrine of allegiance, meaning the person must owe
    direct and exclusive allegiance to the sovereign, as the D.C.
    Circuit held as recently as 2015.
        Now, the historical record for the jurisdiction clause is
    lengthy and complex. I would respectfully direct you all to the
    amicus brief that I submitted on behalf of many Members of this
    Committee. I'll highlight three issues in particular.
        First, like Mr. Cooper, I'll emphasize the importance of
    the Civil Rights Act of 1866. There is widespread agreement
    that the jurisdiction clause of the 14th Amendment was meant to
    Constitutionalize that act and that they mean the same thing,
    but, of course, the 1866 act excluded those who are subject to
    any foreign power. That means citizenship, for both clauses,
    turns on not being subject to any foreign power.
        Senator John Bingham, who was later the principal author of
    the 14th Amendment, said, what does this mean? It means, quote,
    ``every human being born within the jurisdiction of the United
    States of parents not owing allegiance to any foreign
    sovereignty,'' would be a citizen. American birthright
    citizenship was reserved for those who were not already deemed
    allegiant to another sovereign at their birth.
        That takes me to my second point. You may have noticed in
    the quote from Senator Bingham that he refers to the parents'
    allegiance. Obviously, the 14th Amendment itself refers to the
    allegiance of the child. So, what's the connection there?
        The connection is that, at that time, and in many countries
    even now, the children born to citizens of that country were
    deemed, themselves, to be citizens of that country. For
    example, in English law at the time, a child born to English
    citizens in America would be deemed an English citizen at birth
    and, therefore, could not owe complete and exclusive allegiance
    to the United States. That would deprive that child of being
    entitled to birthright citizenship. That's the connection
    between the parents' allegiance and the child's allegiance that
    you see so often.
        This leads to the third and final point to emphasize today.
    As Mr. Cooper said, as a matter of logic and history, the
    phrase ``subject to the jurisdiction thereof'' cannot mean
    ``subject to the laws thereof.''
        The exceptions prove the point. There is widespread
    agreement that children born in the United States to
    Ambassadors or to invading soldiers would not receive
    birthright citizenship. So, it's not correct to say that all
    those born in the United States are citizens, even under those
    who challenge President Trump's Executive Order. As far as I'm
    aware, almost no one holds that view.
        The explanation given for why Ambassadors' children and
    children of foreign soldiers are not entitled to birthright
    citizenship is often that those individuals are not subject to
    U.S. law. In other words, they have various forms of immunity.
        That's wrong. Not even Ambassadors have full immunity. At
    best, it's contingent. Their home country can revoke it. Nor
    are foreign soldiers immune from U.S. law when they are within
    the United States. So, the inquiry cannot turn on parents'
    supposed immunity.
        As Mr. Cooper also pointed out, there's the fact that there
    was complete agreement at the time of the 14th Amendment that
    American Indian children--that Indian children would not be
    covered, even though they are undoubtedly subject to U.S. law
    and long have been.
        The theory that ``subject to the jurisdiction thereof''
    means ``subject to the laws thereof'' proves far too little. It
    cannot explain any of the categories widely accepted.
        It also proves too much. If it's correct that having a
    parent with contingent or a partial immunity, as an ambassador
    would have, could deprive the child of birthright citizenship,
    then domestic individuals who have partial or contingent
    immunity--judges, prosecutors, even Members of Congress who
    possess immunity for certain acts under speech or debate--would
    likewise fall within the same category.
        Of course, we know that's not right. We know that the
    children of those officials are U.S. citizens while those of
    Ambassadors are not.
        What test explains the exceptions? It's allegiance, the
    first point I mentioned. Judges, prosecutors, Members of
    Congress, they're all fully allegiant to the United States.
    Ambassadors, foreign soldiers are not.
        The takeaway for this Committee? Congress can confer
    citizenship by statute and has done so for many groups not
    covered by the jurisdiction clause, including Indians and those
    born in many of the territories. That power is and always has
    been exclusively Congress's alone to exercise.
        Thank you.
        [The prepared statement of Mr. McCotter follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Roy. Thank you, Mr. McCotter.
        Mr. O'Brien, you may proceed.

                       STATEMENT OF MATT O'BRIEN

        Mr. O'Brien. Chair Roy, Ranking Member Scanlon, the Members
    of the Committee, it's a privilege to appear before you today,
    and I thank you for the invitation.
        The two witnesses before me, have very ably summarized
    what's at issue here. What I would like to point out is two
    things based on my many years of experience working in
    immigration law directly. I actually began my career as an
    immigration examiner in the Naturalization Division of the INS,
    so I'm very familiar with these issues.
        Now, it's very easy to say the meaning of this case is
    obvious. Of course, if it were obvious, it probably wouldn't
    have had to become a case in the first place.
        The common narrative goes something like this: Wong Kim Ark
    means that everyone born in the U.S. gets citizenship. Later,
    in Plyler v. Doe, Justice Brennan confirmed this in that
    holding, stating that no plausible distinction with respect to
    the 14th Amendment jurisdiction can be drawn between resident
    aliens whose entry into the United States was lawful and
    resident aliens whose entry was unlawful.
        There are two major problems with that approach, though.
        The first is that the court in Wong Kim Ark couldn't
    address the question of citizenship being conferred on illegal
    aliens because there were no illegal aliens to speak of at the
    time. U.S. immigration law barred a very small slice of
    individuals, among them: Chinese nationals who were subject to
    the provisions of a treaty between the United States and China,
    criminals and people who were likely to become public charges,
    as well as those who appeared to be clinically insane.
        The concept of illegal aliens was one that wouldn't come
    along until much later. At that point in time, anybody who
    could pay the 50-cent admission tax, entrance tax, could be
    admitted to the United States and was permitted to remain there
    indefinitely.
        Now, the second problem with the standard narrative about
    Wong Kim Ark is that Justice Brennan's assertion in Plyler v.
    Doe is obiter dicta, a judge's incidental expression of opinion
    that is not essential to a decision and does not constitute
    part of the precedent established by a case. In that case, in a
    footnote, Justice Brennan expressed his personal opinion that a
    1912 immigration law treatise, not case law or statute, held
    that everyone born in the U.S. was a citizen.
        In short, neither Wong Kim Ark nor Plyler had anything to
    do with whether the children of illegal aliens become U.S.
    citizens at birth. In fact, that question has not yet been
    addressed by the Supreme Court. There is little basis on which
    it may be argued that the holding in Wong Kim Ark would require
    a conclusion that the children of illegal aliens are
    automatically entitled to citizenship on being born within the
    confines of the United States.
        If the United States is to formulate a reasonable policy
    for the transmission of citizenship, then it must abandon the
    dangerous folk tale that is currently associated with Wong Kim
    Ark. I hope that my testimony here today will assist this
    Committee in getting to the heart of what Wong Kim Ark and the
    14th Amendment really require.
        If one stops and thinks about this, it would be utterly
    irrational to lay out a list of people who are inadmissible to
    the United States and whose presence here is unlawful, which
    can result in their criminal prosecution as well as their
    removal from the United States, but then allow those people to
    transmit citizenship to their children unquestionably and
    without any qualifications.
        I thank you for inviting me here today.
        [The prepared statement of Mr. O'Brien follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Roy. Thank you, Mr. O'Brien. I appreciate your
    testimony.
        Ms. Frost, you may begin.

                       STATEMENT OF AMANDA FROST

        Ms. Frost. Chair Roy, Ranking Member Scanlon, and
    distinguished Members of the Committee, thank you for the
    opportunity to discuss the significance and meaning of the 14th
    Amendment Citizenship Clause.
        Some provisions of the U.S. Constitution are broad and
    confusing, but the Citizenship Clause is not one of them. The
    text, the drafting history, the original understanding, and
    over a century of unanimous judicial precedent and historical
    practice all confirm that the Citizenship Clause means what it
    says.
        As the text States, the Citizenship Clause grants
    citizenship to all born in the United States, and the only
    meaningful exception today is for the children of consular
    officials.
        The Citizenship Clause was intended to remove the stain of
    Dred Scott from our Constitution, the Supreme Court decision
    that held citizenship turned solely on race and ancestry and
    not birthplace. In 1867--sorry--1868, the Nation rejected Dred
    Scott.
        When discussing this addition to the Constitution, the
    Reconstruction Congress explicitly stated that it wanted to
    provide citizenship to the four million formerly enslaved
    Americans and the children of immigrants arriving from around
    the globe.
        This Congress also acknowledged and well-knew that some of
    those enslaved Americans had been brought into this country in
    violation of the law, because laws after 1808 prohibited the
    international slave trade. These were the illegal aliens of the
    day.
        Thus, it is wrong, as Mr. O'Brien just stated, to say that
    there wasn't such a thing as an undocumented or illegal alien
    at the time. The Reconstruction Congress well-knew there was
    and of course intended to grant those people citizenship.
        That is why President Trump's Executive Order has been
    rejected by every Federal court that has addressed it over the
    last month--five and counting. These judges have been scathing.
    Federal Judge John Coughenour, appointed to the bench by Ronald
    Reagan, described the Executive Order as ``blatantly
    unconstitutional.'' Federal Judge Joseph Laplante, a George W.
    Bush appointee, enjoined the Executive Order on the grounds
    that, quote, ``it contradicts the text of the 14th Amendment
    and the century-old, untouched precedent that interprets it.''
        These judges have concluded that the Trump Administration's
    arguments in favor of the Executive Order are ahistorical,
    atextual, and illogical, also inconsistent with the order
    itself.
        For that reason, I'm not going to spend any more of my time
    here discussing the meaning of the Citizenship Clause, which is
    detailed in my text of my written statement--and I'm happy to
    answer questions--but, instead, I'm going to move on and talk
    about the devastating consequences of this Executive Order for
    the 3.5 million American families who every year welcome a new
    child into their family.
        The Executive Order claims the power unilaterally to
    rewrite the Constitution. That alone is disturbing enough. In
    doing so, it excludes hundreds of thousands of newborn children
    from citizenship, including the children of immigrants who came
    legally to the United States.
        All these newborn children would be declared undocumented
    immigrants from the moment they are born. Some would be born
    stateless. All would be at risk of being deported away from
    their parents, denied all the rights and privileges of
    citizenship, at the most vulnerable moment of their new lives.
        Worse, if this were to go into effect, it would not be
    limited to the people carved out by the Executive Order--that
    is, the children of undocumented immigrants and the children of
    temporary immigrants. It would affect all Americans, every
    single person giving birth to a child going forward. All would
    now have to produce paperwork proving their status, their
    citizenship, their green-card status, at the time of the
    child's birth. As an immigration lawyer, I will tell you, for
    many people, that is not easy.
        I thought this was a Committee that favored limited
    government. This is expanding the Federal bureaucracy and the
    paperwork burdens on these families, hospitals, State agencies,
    and overburdened immigration officials, as I said, at the most
    sensitive moments of these people's lives.
        As explained, the Executive Order is not only
    unconstitutional, it is not only a terrible policy, it also
    conflicts with fundamental American values. We are a Nation
    that rejects the test of ancestry and lineage, and we prefer
    instead to grant citizenship based on birthplace. It's a choice
    we've made well over a century ago.
        To be born in America is to be born an equal citizen.
    America is excellent at integrating the children of immigrants
    into our society. It is one of our great strengths.
        All Americans should be proud that in 1868 the Nation
    rejected Dred Scott and reclaimed citizenship based on location
    of birth, not lineage and ancestry, welcoming the children of
    immigrants. We must never go back.
        [The prepared statement of Ms. Frost follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Roy. Thank you, Ms. Frost.
        We will now proceed under the five-minute rule with
    questions.
        The Chair recognizes the gentlelady from Wyoming for five
    minutes.
        Ms. Hageman. Thank you, Mr. Chair.
        Birthright citizenship allows for predatory birth tourism
    practices in which foreign-born women come to the United States
    on tourist visas to give birth so that their children become
    U.S. citizens. Once the children turn 21, they can sponsor
    their parents to become legal U.S. residents so the family can
    immigrate to America.
        Concerningly, the majority of these birth tourists come
    from one of America's greatest adversaries, including China.
        Because of advances in technology, lax surrogacy laws, and
    the incorrect understanding of the 14th Amendment, countries
    are now using international surrogacy programs to rent wombs in
    America.
        Mr. O'Brien, there is a back-and-forth in U.S. policy
    regarding scrutiny and restrictions for birth tourism,
    including two different policies issued in 2015 and 2020.
        Where does our Federal policy currently stand on this
    issue? Is it strong enough to prevent this practice of
    essentially renting wombs for surrogacy to have anchor babies?
        Mr. O'Brien. Well, the fact is that we don't have any
    policies specifically on this. We have the immigration laws,
    but, as we've seen with the last administration, if the
    government refuses to enforce those, they have no effect
    whatsoever.
        There's anywhere from 125,000-300,000, depending on whose
    estimates you're looking at, incidents of birth tourism each
    year. The implications of this are absolutely frightening if
    you look at it long-term.
        During the cold war, the Russians had a program called the
    Illegals Program, where they inserted agents of influence and
    spies into the United States with documents that made it appear
    that they were lawfully here. If those people had children,
    they became U.S. citizens, and regularly those children were
    trained--despite the fact that they allegedly had a claim to
    United States citizenship, they were trained to be against the
    interests of the United States.
        So, this is something that is dangerous. We need a firm
    policy against it. It is something that places the United
    States at a great deficit in terms of national security.
        Ms. Hageman. Well, then I want to focus specifically on
    this issue. According to The Heritage Foundation, they have
    reported on the new birth tourism tactic which uses
    international commercial surrogacy to exploit America's
    misinterpretation of the 14th Amendment and our lax surrogacy
    laws.
        Intended parents who are foreign nationals use a surrogate
    in or transported to the United States and the surrogate may be
    an American woman who then gestates a child for a fee, allowing
    foreign nationals to essentially rent a room or buy a baby.
        Mr. O'Brien, under the current wrongful interpretation of
    the 14th Amendment, this child would gain U.S. citizenship,
    wouldn't they?
        Mr. O'Brien. Yes, they would. Because the Immigration and
    Nationality Act has become a muddle under the weight of
    misinterpretations about various effects of provisions of the
    act, that places the United States in a position where people
    with no connection to the United States, who simply want to be
    here because they either don't like the political or economic
    conditions in their home country, can then use the citizenship
    of an adopted child or a surrogate child to try and access the
    United States and then eventually get lawful permanent
    residence and become citizens themselves.
        Ms. Hageman. This form of birth tourism actually
    exacerbates the crisis we have with birth citizenship,
    requiring direct and exclusive allegiance--which should require
    direct and exclusive allegiance to the United States. Don't you
    agree?
        Mr. O'Brien. Yes, it does. It exacerbates it significantly.
        Ms. Hageman. Well, what's very interesting is, China banned
    international surrogacy, yet the international industry is
    disproportionately fueled by Chinese nationals, who make up
    41.7 percent of the surrogacy industry.
        Should this raise national security concerns, that China is
    aggressively participating in a practice that it has banned in
    its own country?
        Mr. O'Brien. Yes. China has an established pattern through
    an organization called the People's Work Bureau (ph) of
    approaching people who have a familial connection to China,
    regardless of their citizenship, and then pressuring them based
    on connections to Chinese family members who are still within
    the PRC to provide intelligence information, whether that be
    national security information or economic espionage
    information.
        Ms. Hageman. Well, and what's interesting is that the
    children--these children who are receiving American
    citizenship, they receive that even if the parents intend to
    raise them abroad.
        What are the benefits of having a child with American
    citizenship?
        Mr. O'Brien. The benefits of having a child with U.S.
    citizenship is, that child can later sponsor you for lawful
    permanent residence. It also makes the child eligible for all
    sorts of things that come along with U.S. citizenship, which is
    entering and leaving the United States. The implications of
    that from a national security or criminal perspective are
    enormous.
        This is truly frightening, and it's shocking to me that
    there is so much debate about this. I think if we're arguing
    about this, we've sort of lost the concept of what citizenship
    is and what it means.
        Ms. Hageman. Amen. I think you make a very good point.
        I ask unanimous consent to put into the record an article
    from July 15, 2024, entitled, ``The New Face of Birth Tourism:
    Chinese Nationals, American Surrogates, and Birthright
    Citizenship.''
        And, with that, I yield.
        Mr. Roy. Without objection. Also, without objection, Mr.
    Biggs will be permitted to participate in today's hearing for
    the purpose of questioning the witnesses if a member yields him
    time for that purpose.
        I will now recognize the gentlelady from Washington, Ms.
    Jayapal.
        Ms. Jayapal. Thank you, Mr. Chair.
        Let me be very clear: Donald Trump's Executive Order to
    eliminate birthright citizenship is, quote, ``blatantly
    unconstitutional.'' Those are not my words. Those are the words
    of Judge John Coughenour, a Reagan-appointed Federal judge from
    my home State of Washington.
        The judge went on to say that, while, quote,

            The rule of law is, according to [Trump], something to navigate
            around or something to be ignored, whether that be for
            political or personal gain in the courtroom, the rule of law is
            a bright beacon.

    Which that judge intends to follow.
        For over 100 years, birthright citizenship has been
    enshrined as a fundamental right under the 14th Amendment. The
    language in the amendment is very clear--``all persons born or
    naturalized in the United States''--in fact, so clear that at
    least four Federal judges have concluded that the Executive
    Order is unconstitutional.
        Like many of the attacks on immigrants by the Trump
    Administration, this attack centers on old tropes that question
    the, quote, ``allegiance'' of immigrants--tropes that were
    applied to enslaved Black people brought to this country in
    shackles as well as Japanese-Americans imprisoned and interned
    during World War II.
        These attacks are couched in a completely baseless argument
    that, somehow, immigrants born in the United States to a parent
    who is undocumented don't have sole, quote, ``allegiance'' to
    the United States.
        Professor Frost, this argument is actually very similar to
    the very arguments made in 1897 by Solicitor General Holmes
    Conrad in the Supreme Court case United States v. Wong Kim Ark,
    when he argued that the children of Chinese immigrants were
    not, quote, ``subject to the jurisdiction of the United
    States'' because they owed their allegiance to the Emperor of
    China. The Supreme Court considered these racist arguments and
    they categorically rejected them, correct? Can you explain why,
    if that's the case?
        Ms. Frost. Yes, that's correct.
        I think it's worth noting that Holmes Conrad came from a
    slave-owning family, he was an officer in the Confederate Army,
    and he himself lost his citizenship for a period of time
    because he was a traitor to the United States of America.
        In addition to the argument you just noted that he made
    that stated that the children of immigrants, and in particular
    Chinese immigrants, did not have allegiance to the United
    States--he made that argument explicitly, and it was rejected
    by the Supreme Court in 1898. In addition to that, I think it's
    worth noting, he also told the Supreme Court of the United
    States that the entire 14th Amendment was unyal. That's an
    argument he made. I'm not aware of, ever, a solicitor general
    making that argument to any other Supreme Court in the history
    of the United States. Of course, the Supreme Court rejected
    that as well.
        That argument's been made, and it's lost 127 years ago and
    it will fail again today, as it already has in front of five
    Federal courts.
        Ms. Jayapal. At that time, the Supreme Court held that the
    phrase ``subject to the jurisdiction thereof'' was an extremely
    narrow qualification that only excepted three specific classes
    of persons from citizenship.
        Can you tell us what those three classes were and why they
    do not apply and implicate children of undocumented immigrants?
        Ms. Frost. Yes. The Reconstruction Congress was very
    clear--the Supreme Court agreed in Wong Kim Ark and subsequent
    cases--that the ``subject to the jurisdiction thereof''
    language applied to three groups.
        One was the children of diplomats and consular officers,
    for the obvious reason that the French Ambassador to the United
    States doesn't want their child born in the U.S. to be a
    citizen. Their situation, the United States, is they're
    representing a foreign power. In fact, the embassy itself is
    considered foreign territory.
        Native Americans, that was the only really substantive
    discussion the Reconstruction Congress had at the time they
    suggested this addition of the Citizenship Clause to the 14th
    Amendment. They pointed out in many discussions that the
    Indians, Native American Tribes, were sovereign powers with
    whom we had treaty relations, who were not subject to U.S. law;
    they had their own Tribal courts and laws. At that time, they
    wanted to be excluded, and the Reconstruction Congress didn't
    want them to be automatically included.
        I should note that there is now a Federal law that gives
    Native Americans automatic birthright citizenship.
        The final group I'm happy to say we've never encountered,
    which is enemy aliens in occupied territory--
        Ms. Jayapal. Great. I'm going to stop you just because I
    have another question here.
        One of the lawsuits blocking the order was brought by an
    individual in my State, Alicia Lopez. She was born and raised
    in El Salvador, but she fled the country after experiencing a
    violent and abusive situation. She has applied for asylum, has
    received a work permit while her application is pending. She's
    lived in Washington State since 2016. She has a five-year-old
    son with her partner. She's pregnant with a second child, who
    is due in July.
        I want to bring this back to the real impact of what
    willactually happen. Birthright citizenship has generated this
    deep sense of membership in our society, a collective
    commitment to a shared value, an opportunity, equality, and
    contribution that's allowed America to thrive.
        What's the impact on real-life Americans across this
    country?
        Ms. Frost. Yes. To eliminate birthright citizenship would
    be to create a permanent underclass, a caste system, which was
    the very result the Reconstruction Congress intended to end.
        Ms. Jayapal. Thank you so much.
        I yield back, Mr. Chair.
        Mr. Roy. I thank the gentlelady from Washington.
        I now recognize the Committee Chair, Mr. Jordan.
        Chair Jordan. I thank the Chair and thank you for holding
    this hearing.
        I would yield my time to the gentleman from Arizona.
        Mr. Biggs. I thank the gentleman for yielding.
        I'm going to ask each one of you a question related to this
    scenario, because this is a real scenario.
        In Yuma, Arizona, they have one hospital for about 150,000
    people. They have a small maternity unit, about 8-10 beds. Many
    times, the beds, every one of them is occupied by a mom-to-be
    who has illegally crossed our border, usually through the
    Cocopah Reservation. I know right where they come. They go in
    and they have a baby, and then they both depart to go back
    South across the
    border.
        I guess my question for each one of you is this. Under the
    original meaning--because I'm trying to establish--you've all
    made it clear; I want to make it clearer.
        Under the original meaning of the 14th Amendment, Ms.
    Frost, is that child a citizen of the United States of America?
        Ms. Frost. Yes, of course, because the Reconstruction
    Congress wanted--
        Mr. Biggs. OK. Thank you. We'll go to--thank you. I
    appreciate that.
        Now, Mr. Cooper?
        Mr. Cooper. No, Congressman, not under the Citizenship
    Clause of the 14th Amendment.
        Mr. Biggs. Mr. McCotter?
        Mr. McCotter. I agree with Mr. Cooper; that's correct.
        Mr. Biggs. Mr. O'Brien?
        Mr. O'Brien. No, because she's not lawfully present in the
    United States, the mother.
        Mr. Biggs. Let's consider--we have a very, very disparate
    interpretation of Wong Kim Ark. We've got Ms. Frost's
    position--and I don't want to misstate it, but--that the
    original allegiance--or ``the jurisdiction thereof'' displaced
    the allegiance requirement, right? So, there's no more
    allegiance requirement.
        Is that fair? Is that a fair description of what you're
    saying, at least in that portion?
        Ms. Frost. I'm not sure what you're referring to by the
    original ``allegiance requirement.'' There was never an
    allegiance requirement. There was the Dred Scott decision,
    which said--
        Mr. Biggs. OK. That's what I'm getting at. You believe
    there was never a--jurisdiction there have never required
    allegiance to the sovereign.
        So, now, I want to clarify that.
        When you get to that, Mr. McCotter, why is it that in Wong
    Kim Ark the court said that the plaintiff or the Appellant in
    that case was actually a citizen of the United States?
        Mr. McCotter. The Supreme Court's rationale is a little
    hard to follow in Wong Kim Ark, to be honest, but it does say
    that the parents there were lawfully present with the consent
    of the sovereign, which is the United States--the equivalent of
    our modern-day LPR, lawful permanent resident.
        Mr. Biggs. So, if because that's the way I read Wong Kim
    Ark. They're talking about there's lawful presence and there's
    an intention to domicile, which is a legal term of art meaning
    you're intending to live there, stay there, and be part of that
    community. That's really what that gets at.
        I am baffled by the notion, then, that if you cross through
    the Cocopah Reservation and you go into the regional hospital
    in Yuma and you have a baby, and your intention is to
    immediately leave and go back home--you're not legally present
    in the United States, nor do you have an intention to be here.
    Why, then, is that baby entitled to birthright citizenship?
        Mr. Cooper?
        Mr. Cooper. Congressman, that baby is not entitled to
    birthright citizenship. I think Wong Kim Ark does not in any
    way support the claim that it's entitled to that, to birthright
    citizenship. As I mentioned previously, the issue in that case
    was very clearly limited to aliens who had established a
    permanent and lawful domicile in this country. So, whether you
    think that's sufficient or not, it clearly doesn't sweep within
    it people who have come into this country illegally.
        I would also point out, Wong Kim Ark itself said there are
    some certain irresistible conclusions to be drawn from the
    Citizenship Clause, including that the 14th Amendment affirms
    the ancient and fundamental rule of citizenship by birth within
    the territory in the allegiance and under the protection of the
    country. The reason they concluded there is--
        Mr. Biggs. I have to go there because I want to go really
    quick because it actually segues from that nicely, and that is,
    one of the things--and, actually, Ms. Frost indicated this.
        In the Indian Tribe case, when we look at that, it is
    because there was respect for a Tribal Indian having an
    allegiance to that Tribe. That's very different than someone
    who crosses over, has a baby, and returns to their native
    country. Isn't that true?
        Mr. O'Brien? I'll go to Mr. O'Brien.
        Mr. O'Brien. Yes, that's true.
        In Wong Kim Ark, what the court did was, they inferred that
    long-term residence was an intention by someone who was working
    toward citizenship and wanted to be a long-term member of the
    community of the United States.
        The court was at pains to point out that there were two
    qualifications: (1) That the individual attempting to transmit
    citizenship had to be lawfully present in the United States
    with the permission of the government; and (2) that person was
    within the allegiance of the United States, meaning that this
    individual had more than a simple obligation to obey the laws
    while present.
        Mr. Roy. I thank the gentleman from Arizona, and I thank
    the witness.
        I will now recognize the gentleman from New York, Mr.
    Goldman.
        Mr. Goldman. Thank you, Mr. Chair.
        Mr. O'Brien, I want to go back to where you were right
    there. Mr. McCotter said this, as well--your interpretation is,
    to be lawfully present in the United States with consent of the
    sovereign, Mr. McCotter said, ``that's the equivalent of a
    lawful permanent resident.''
        Is that correct, Mr. McCotter?
        Mr. McCotter. That's correct, yes.
        Mr. Goldman. You agree, Mr. O'Brien?
        Mr. O'Brien. Yes, I do.
        Mr. Goldman. Why is a visa holder not lawfully present in
    the United States with consent of the sovereign?
        Mr. O'Brien. Well, first, a visa holder is a person who has
    a permit to board a common carrier and come to the United
    States and request admission. A person who has been admitted to
    the United States by the appropriate authorities following
    inspection by an immigration officer is lawfully present.
        Mr. Goldman. So, someone with a visa, a work visa, that
    could go on for years and years, you're saying, is not lawfully
    present?
        Mr. O'Brien. No, that's not what I said at all. I said a
    person who has been admitted in a visa classification, like H-
    1B, F-1, so on, and so forth, is lawfully present while they're
    in compliance with the terms of the immigration laws.
        Mr. Goldman. OK. So, I agree. You're trying to restrict
    this to green cards. The problem that I'm addressing here is,
    this Executive Order is not restricted to green cards. It
    prohibits birthright citizenship if neither parent is either a
    lawful permanent resident or a United States citizen.
        Do you agree with that, Mr. O'Brien?
        Mr. O'Brien. Yes, I do. The court in Wong Kim Ark--
        Mr. Goldman. OK. Thank you.
        So, in Wong Kim Ark--exactly. In Wong Kim Ark, they used
    the definition you just said, which would include visa holders,
    and yet the Executive Order expressly excludes visa holders.
        Let's move to the second point, allegiance. This is what--
    the ``subject to the jurisdiction thereof'' that all three of
    you have talked about relates to allegiance. I'd love to see a
    clear and definitive definition of ``allegiance,'' but let's
    just talk about what you all were saying.
        ``Allegiance'' means assimilated. Is that correct, Mr.
    Cooper? That's one of the things that you said?
        Mr. Cooper. I think that only a person, or at least an
    Indian, under the view of the Framers of the Citizenship
    Clause, who had been assimilated and had left the reservation
    and therefore had essentially abandoned that person's
    allegiance to the Tribe and had shifted their allegiance to the
    United States, just like others could have a child--
        Mr. Goldman. I see. So, if you move off of a Tribal
    reservation and you move across the street at the time--where
    you're talking about originalism here--and you move across the
    street, then all of a sudden your allegiance has changed from
    the Indian Tribe, the Native American Tribe, to the United
    States. That's what you're saying.
        Do you disagree with that?
        Mr. Cooper. I do disagree with that. I think--
        Mr. Goldman. OK.
        Mr. Cooper. I think the notion--
        Mr. Goldman. Is there a time requirement? You must live off
    of the reservation for one year, two years, and five years?
        Mr. Cooper. No. No.
        Mr. Goldman. No, there's not. This is the problem, is, you
    start talking about allegiance and you're excluding green card
    holders.
        Now, green card holders are also citizens of other
    countries. Yet, somehow, in this definition of ``allegiance,''
    that a green card holder has more allegiance to the United
    States than that person would, by necessity, by definition,
    than that person would to a foreign country. That seems like a
    pretty bold statement to be asking the Supreme Court to say.
        What scares me about it, as an American Jew, when Jews are
    often accused of dual loyalty with Israel, is, you're now
    getting into a situation where the government has to determine
    which country any individual has more allegiance to--the
    country that they have immigrated to, and even if they're a
    lawful permanent resident, or the country of their citizenship.
        It baffles me that the Republican Party, the party of small
    government, the party of federalism and States' rights, would
    sit here and say, yes, it is the government's job to create a
    definition of ``allegiance,'' which somehow is required for
    birthright citizenship.
        Now, look, Mr. Biggs--and you may not like the example--
    birthright tourism, you call it--of someone coming into the
    United States, having a baby, and then leaving. If you don't
    agree with that, that's fine. Pass a Constitutional amendment.
    Because this is clear. This definition that you're providing is
    unbelievably vague and very, very careless, and I look forward
    to the courts rejecting it.
        Thank you. I yield back.
        Mr. Roy. I thank the gentleman from New York.
        As individuals who recite the Pledge of Allegiance down on
    the floor of the House of Representatives every time we open
    the House, I think for those of us who understand what
    allegiance is--particularly, the gentleman from Texas, who wore
    the uniform of our Armed Forces, I think he's fully aware of
    what allegiance is.
        I would also note that one of the very few responsibilities
    our Federal Government has is actually making those
    determinations as to who should be citizens and who should be
    in our country.
        Mr. Hunt. Right. Correct.
        Mr. Roy. I would now recognize the gentleman from Texas.
        Mr. Hunt. Thank you, Mr. Chair.
        I understand more than anyone that we are a Nation of
    immigrants. There's a difference, stark difference, between
    giving citizenship to the children of slaves, the children of
    those subject to the Middle Passage, the children of
    sharecroppers, and the children of those who were once
    considered property and giving citizenship to the children of
    people who crossed a border illegally, stay in taxpayer-funded
    luxury hotels, who receive free Xboxes, free cell phones, free
    flights around the country, and three square meals a day.
    There's a big difference.
        My great-great-grandfather was born on a plantation,
    Rosedown Plantation in Louisiana. He had to join the Union
    Color Guard to gain his freedom.
        By morphing the Citizenship Clause into something that
    wasn't meant to be, it's demeaning to descendants of slaves
    like me. Not just me who served this country, but my father is
    a retired colonel; my sister went to West Point and is a
    retired colonel; my brother went to West Point. We are talking
    about a direct descendant of a slave that earned--earned--the
    right to be in this country and passed that ilk down to his
    ancestry. People bled for it. People died for it. It means
    something.
        The purpose of the 14th Amendment that President Trump--
    President Trump's birthright citizenship Executive Order is
    that the Citizenship Clause of the 14th Amendment was never
    meant to apply to children of illegal or legal aliens.
        Allowing birthright citizenship to stay in place dilutes
    the citizenship of not just Black Americans like me but every
    single American citizen that had to earn it the right way.
    Let's say this in black and white: Either you're a U.S. citizen
    or you are not.
        Now, the Left has spent decades cheapening what it means to
    be an American citizen. They have quite literally been chipping
    away at the basic value of American citizenship. They pretend
    to be altruistic, but we know the truth. Ozzy Osbourne's
    daughter said on ``The View'' that we have to let illegal
    immigrants in this country because ``who else will clean our
    toilets?'' We hear it all the time. ``Who will pick our
    crops?'' Even though that we know that American citizens are
    the majority of those people picking our crops, we know what
    you're insinuating. All this must end now.
        Mr. O'Brien, earlier, you brought up birth tourism and how
    it's an issue of national security. Could you expound on that
    and talk about why that's an issue? As somebody that's served
    this country, this is near and dear to my heart.
        Mr. O'Brien. Sure.
        If we give U.S. citizenship to absolutely anyone who is
    born on our soil, that takes the United States out of control
    of who becomes a U.S. citizen. Since, as everyone here knows,
    the people are the Government of the United States, that puts
    us in a position where we could be allowing people who are
    citizens of adversary Nations to be coming here, having
    children who gain U.S. citizenship, and then are trained to be
    adversaries of the United States.
        It puts them in a position where they can get jobs with
    security clearances, they can join the military, they can work
    in the defense industry, which they would not otherwise be able
    to do.
        Mr. Hunt. So, over the course of the last four years, have
    there been citizens--people that have entered into our country
    that are our adversaries, that have come to this country, that
    we know of, and had children?
        Mr. O'Brien. Yes, there have been a massive number of
    people who have come here, and not just over the last four
    years; it was happening before. I worked--
        Mr. Hunt. Yes.
        Mr. O'Brien. --in the national security apparatus of the
    Department of Homeland Security, and I worked on many cases
    where that had happened.
        Mr. Hunt. Is there any other country in the world that you
    know operates like this?
        I'm saying this from the standpoint of somebody that's
    deployed to Saudi Arabia and other countries around the world.
    This would never happen anywhere else, by the way.
        Can you name a country in modern or recent history that has
    behaved like this? What has been the outcome of this type of
    behavior? Meaning that, is this even a sustainable model, given
    the number of people that have entered this country over the
    course--especially the last four years?
        Mr. O'Brien. No, it's not a sustainable model.
        The only other place where it existed was in a number of
    the Latin American countries. Most of them did away with it
    after they were attempting to attract migrants to build their
    industries and build the number of people living in those
    countries. So, this is something that's nearly nonexistent.
        Mr. Hunt. Thank you, Mr. O'Brien.
        The Left throws ``love thy neighbor'' in our face, and they
    say that we have to have open borders to be nice to people.
        Well, I just want to tell the Left: We have a bunch of
    neighbors right here in our country that are Americans. You
    see, your neighbors are the homeless veterans that you drive by
    on the way to work. Our neighbors are the wayward teens running
    away from a bad home environment. Your neighbors are the
    families who just got evicted from their apartment.
        What do all those neighbors have in common? They're all
    Americans. Let's use our American taxpaying dollars to put
    Americans first. News flash: This is why President Trump is our
    President. Because it's past due that we put the American
    citizen first.
        Once we solve our issues here--I'm a Christian--by God,
    let's help everybody else. At this point, we have enough
    problems to fix in our own country. This must stop.
        Thank you for your time.
        Mr. Roy. I thank the gentleman from Texas.
        I will now recognize the gentlelady from Vermont.
        Ms. Balint. Thank you, Mr. Chair.
        Today we've heard a lot of different legal theories about
    interpreting the Constitution, and at times I know it feels a
    little bit like a law school lecture. So, I'd like to cut
    through the legalese and clearly focus on something that I find
    deeply troubling.
        What Republicans are offering is a plan to redefine who
    gets to be American. It's a big step toward a country where
    Americanness itself applies to only a privileged few and a
    country where future and past generations are relegated to an
    underclass status. They're trying to stake out who is a real
    American, and it will leave a whole lot of people out. This is
    a frightening road to go down.
        The arguments we've heard have been with us since our
    founding, as you pointed out, Professor Frost. The Dred Scott
    decision changed the common-law understanding of birthright
    citizenship for all. It enabled slave owners to use the law to
    take away citizenship, to take away identity, to take away the
    freedom of Black people. The 14th Amendment and the Civil
    Rights Act of 1866 were a direct response to Dred Scott. The
    law grants citizenship to people born in this country, plain
    and simple.
        Yet, here we are, over 150 years later, talking about how
    maybe the straightforward language of the law could possibly or
    should actually be used to deny citizenship for, often, people
    of color.
        Ms. Frost, did the Framers of the 14th Amendment intend to
    extend birthright citizenship to the children of slaves and
    other noncitizens?
        Ms. Frost. Yes. The Reconstruction Congress could not have
    been clearer. They used clear language, and their discussions
    that followed made this clear. They said, of course they wanted
    to overrule Dred Scott, which included giving citizenship to
    all enslaved Americans, including those who had arrived
    illegally because they'd been illegally imported after the laws
    prohibited it. They were the illegal aliens of the day. The
    Reconstruction Congress said, ``we want them to have
    citizenship.''
        The second group explicitly discussed was the children of
    immigrants--in particular, the children of Chinese immigrants.
    That was the intention of the Reconstruction Congress, and they
    achieved that through clear language.
        Ms. Balint. Thank you. Through clear language.
        Citizenship was based on where you were born, correct, and
    not, actually, the identity of your parents?
        Ms. Frost. Of course. We are a country that doesn't visit
    the sins of the father on the child. We believe in the idea
    that all people born are equally American because they are born
    in the United States. Our Constitution rejected titles of
    nobility explicitly. We, of course, rejected a hereditary
    monarchy.
        America is about birthplace. It's not ancestry or lineage.
        Ms. Balint. Is it safe to say that the 14th Amendment
    enshrined citizenship for an entire class of people and their
    ancestors?
        Ms. Frost. Yes, of course. Any other rule would require a
    test of lineage and ancestry for every new child born in the
    United States.
        I'd like to quickly add, 33 countries have birthright
    citizenship, in response to Congressman Hunt's question,
    including Mexico and Canada. We are not outliers.
        Ms. Balint. Exactly. I'm so glad you brought that up,
    because I had it in my notes to bring that up as well.
        What if the Supreme Court decides that the 14th Amendment
    actually does not give citizenship to children born in this
    country to noncitizens? What if the Supreme Court made that
    ruling? Where does that leave the descendants of those who've
    been granted birthright citizenship?
        Ms. Frost. Yes, it would unwind the citizenship of the
    entire country. We are a Nation of immigrants. A very
    significant majority of us trace back--really, other than
    Native Americans--trace back our lineage to an immigrant parent
    and grandparent. Five percent of our military are the children
    of immigrants.
        Now, all of us, when we have a baby, the first thing we'd
    have to do is produce proof of our citizenship. Imagine a
    generation from now on. It wouldn't be good enough to show your
    own birth certificate; you'd have to show the lineage.
        This is exactly what Dred--what the Reconstruction Congress
    wanted to prevent, and it's exactly the result that Dred Scott
    wanted.
        Ms. Balint. I appreciate that so much.
        So, let's follow this logic. Say a person's grandparents
    came to this country from Central Europe in the 19th century.
    An investigation reveals that those grandparents used false
    pretenses or false names at Ellis Island.
        Does that mean, based on what my colleagues would be saying
    today, that the present-day descendants of those grandparents
    are not citizens?
        Ms. Frost. Yes. The logic of the position is that every
    single person who considers themselves an American--perhaps
    people in Congress, certainly people voting--would suddenly be
    under scrutiny, and any flaw in their family's immigration
    history, going back to the Contract Labor Act of 1885, where if
    you came to the U.S. with a contract to work, that was
    illegal--many people violated that law in 1885. All those
    people and their descendants today could have their citizenship
    questioned and could be stripped of their citizenship under the
    Executive Order.
        Ms. Balint. Thank you.
        If I could, in conclusion--because I see that I'm out of
    time--doing away with birthright citizenship is an intentional
    choice to give this President, I believe, massive power to
    dictate who is and who is not an American.
        I yield back.
        Mr. Roy. I thank the gentlelady from Vermont.
        I now recognize the gentleman from North Carolina.
        Mr. Harris. Thank you, Mr. Chair. Thank you for this
    hearing, and to all you that are serving on this panel today.
        The issue of birth tourism is a big concern for me and
    stands out as a glaring example of a loophole being taken
    advantage of.
        Mr. O'Brien, in your testimony, you shared a little bit ago
    with Mr. Hunt about the national security risk associated with
    widespread birth tourism. What are among the top countries that
    are taking part in this practice? Where do they come from?
        Mr. O'Brien. Well, the largest is China. The second-largest
    is India. Then it drops off from there, but there are still
    large numbers of people from a large number of countries that
    we should have concerns about.
        Mr. Harris. Very good.
        Aside from the national security risk that you've already
    addressed, this practice puts many of those involved in coming
    here in harm's way.
        Can you talk about how the birth tourism can harm the
    expectant mothers involved in this?
        Mr. O'Brien. Certainly.
        It's not advisable, at least according to all the medical
    personnel that I've talked to, for women who are in an advanced
    stage of pregnancy to do something like a 14-24-hour flight
    from China.
        We have seen repeatedly along the Southern border people
    who are traveling in extremely harsh environments, attempting
    to cross the Rio Grande, while expecting a child imminently.
        So, this is a danger to both the mother and the child.
        Mr. Harris. Thank you.
        I'm also curious, while we're here, Mr. O'Brien, about the
    comparison between how the United States treats this concept of
    birthright citizenship when compared to the rest of the
    developed world.
        Is it common for other countries to automatically grant
    citizenship to those born on their soil?
        Mr. O'Brien. No, it's not common. It's something that's
    most typically associated with the United States, Latin
    America, Canada, and a few other countries that have extremely
    truncated variations of it.
        Mr. Harris. How would you say America compares to most EU
    countries in regard to this issue?
        Mr. O'Brien. It's profoundly broader. Most countries that
    have birthright citizenship have significant restrictions on it
    compared to the United States.
        Mr. Harris. Very good.
        Mr. McCotter, I would like to hear from you about how
    Congress can play its part in this conversation. It's one thing
    for Executive Orders; it's another thing for court decisions
    and interpretation.
        What steps can Congress take to support President Trump's
    Executive Order?
        Mr. McCotter. I authored an amicus brief on behalf of many
    Members of this Committee, and we submitted that in almost all
    the District court proceedings and in several of the circuit
    court proceedings. So, the court is at least aware of these
    Members' views on the historical understanding of the
    jurisdiction clause. That's one thing, of course, Congress
    could do.
        Congress obviously could hold a hearing, which we're having
    now, and I'm glad to participate.
        Mr. Harris. Well, I'm proud to be a cosponsor of
    Representative Brian Babin's Birthright Citizenship Act of
    2025, which does clarify which individuals automatically
    receive American citizenship at birth. In fact, I've told
    folks, if ever there's a time for us to clarify and codify,
    that time is now.
        Would you deem it necessary that Congress clarify this
    question surrounding the Citizenship Clause, or should it be
    left to other institutions?
        Mr. McCotter. The Supreme Court has long held that the
    decision of citizenship is left to Congress, except, of course,
    as dictated by the 14th Amendment. The courts can interpret the
    14th Amendment as they're doing now, but otherwise it is
    exclusively a congressional prerogative.
        Mr. Harris. We do have an opportunity now and with the Act
    introduced to take some action on this.
        With that, Mr. Chair, I'll yield back my time.
        Mr. Roy. I thank the gentleman from North Carolina.
        I will now recognize the gentleman from Maryland and the
    Ranking Member of the Committee.
        Mr. Raskin. Mr. Chair, thank you very much.
        Thanks to all the witnesses for being here.
        Special greetings to my former colleague, Professor Frost.
        I wanted to start with you, because there's been a major
    flurry of litigation about the onslaught of unlawful and
    unconstitutional Executive Orders that have come down from the
    administration. This Executive Order has appeared in four
    different courts, and, as I understand it, all four of them
    have worked to stop it, either through a temporary restraining
    order or a preliminary injunction.
        They were appointed, by my count, by Presidents Reagan,
    George W. Bush, Barack Obama, and Joe Biden--two Republicans
    and two Democrats. Let's take a look at what they said.
        Here's Judge Coughenour, who was nominated by President
    Reagan.

            Citizenship by birth is an unequivocal Constitutional right.
            It's one of the precious principles that makes the United
            States the great Nation that it is. The President cannot
            change, limit, or qualify this Constitutional right by
            Executive Order.

            I can't remember a case that presented a question as clear as
            this.

    Says Judge Coughenour.

            And the fact that the government cloaked what is in fact a
            Constitutional amendment under the guise of an Executive Order
            is equally unconstitutional. The Constitution is not something
            the government can play policy games with.

    Here's U.S. District Judge Laplante from New Hampshire, who'd
    been nominated by President Bush.

            The [plaintiffs] are likely to suffer irreparable harm if the
            order is not granted.

    Here's U.S. District Judge Deborah Boardman, nominated by
    President Biden to the court in my home State, in Maryland.

            The Executive Order interprets the Citizenship Clause of the
            14th Amendment in a manner that the Supreme Court has
            resoundingly rejected and no court in the country has ever
            endorsed.

    Finally, check out Judge Sorokin, nominated to the District
    court in Massachusetts by President Obama, who says,

            The 14th Amendment says nothing of the birthright citizen's
            parents, and efforts to import such considerations at the time
            of enactment and when the Supreme Court construed the text were
            rejected.

    No Federal judge, to my knowledge, has upheld this Executive
    Order against legal attack. Tell me why you think there is such
    unanimity across the spectrum among the judges.
        Ms. Frost. Well, first, the language is crystal-clear of
    the 14th Amendment. There are thorny and complicated and broad
    and vague provisions of the Constitution, but the Citizenship
    Clause could not speak more clearly. That's what the court said
    in Wong Kim Ark. Its language is universal.
        Mr. Raskin. I did a little research on this last night, and
    I found that the leaders of the writing of the first section of
    the 14th Amendment were Republicans from Ohio, right?
        John Bingham was described as the primary author of the
    Citizenship Clause by Supreme Court Justice Hugo Black, who
    said he was the 14th Amendment's James Madison, the second
    Founder who most worked to realize the universal promise of
    Madison's Bill of Rights and Jefferson's Declaration of
    Independence.
        Another great Ohio Republican, U.S. Senator Benjamin Wade,
    insisted on making the Citizenship Clause perfectly clear to
    avoid any backsliding in times of high partisan feeling. He
    said,

            I have always believed that every person, of whatever race or
            color, who was born within the United States was a citizen of
            the United States; but by the decisions of the courts there has
            been a doubt thrown over that subject; and if the Government
            should fall into the hands of those who are opposed to the
            views that some of us maintain, those who have been accustomed
            to take a different view of it, they may construe the provision
            in such a way as we do not think it liable to construction at
            the time, unless we fortify and make it very strong and clear.
            If we do not do so, there may be danger that when party spirit
            runs high it may receive a very different construction from
            that which we [the Founders] put upon it.

        I wonder what you think Senator Wade might be saying about
    the debate today about whether it's OK just to throw away the
    first sentence of the 14th Amendment.
        Ms. Frost. Yes, he was remarkably prescient. He foresaw a
    future in which a future political party would want to take
    away citizenship and voting and political power from groups of
    Americans it didn't like and didn't view as fully American.
        Mr. Raskin. All right.
        I'm sorry to rush you along here, but the original purposes
    of the 14th Amendment remain perfectly clear for anyone who's
    an originalist, right? They wanted to stop the government from
    reconstituting a racial or ethnic caste system based on the
    inheritance of a subordinate or a superior legal status from
    one's parents.
        In post-Reconstruction America, nobody would ever become a
    slave or a serf or a legal outcast or a prince or a princess or
    a king or a count at birth, because everybody here would attain
    equal citizenship at birth.
        Am I capturing it correctly?
        Ms. Frost. You are.
        Mr. Raskin. All right.
        I yield back to you, Mr. Chair.
        Mr. Roy. I thank the Ranking Member of the Committee.
        I will now recognize Mr. Grothman for five minutes.
        Mr. Grothman. I'd like to ask one of the three gentlemen on
    the right here--and I've had other Committee hearings, so I'm
    sorry if I'm going over things we've already dealt with.
        It says in the 14th Amendment that citizens are people who
    are--all persons born in the U.S. and not subject to any
    foreign power. They must've had something on their mind when
    they said ``not subject to any foreign power.''
        Does anyone want to comment on that, how that little phrase
    there, how that affects what the original drafters intended?
        Mr. McCotter. I addressed some of that in my opening
    remarks, sir. So, the best understanding is that it referred to
    children who would be deemed citizens of their parents' home
    country as of the moment of birth.
        Mr. Grothman. OK. Right now, in this country, if your wife
    goes to Italy and has a baby, does she become an Italian
    citizen? Would anybody say that?
        Mr. McCotter. I'm not sure of what Italy's laws are. I
    would defer to Mr. O'Brien on that.
        I can say that, at the time of the 14th Amendment, for
    example, English citizens born in the U.S. would still be
    deemed English citizens. That's why they would not be entitled
    to birthright citizenship.
        Mr. Grothman. OK. There are a variety of other countries
    that have some form of birthright citizenship, none of them in
    Europe. Canada, but you mentioned, Mr. O'Brien, that that's a
    limited type of birthright citizenship. Could you elaborate on
    that?
        Mr. O'Brien. Yes. In most of those countries, there are
    restrictions that require at least one of your parents to be
    there lawfully. In some cases, its birthright citizenship
    combined with a familial lineage.
        There are all different ways of doing this. What I can say
    unequivocally is that the United States is the only place that
    does it the way it's done here.
        Mr. Grothman. OK. If you would interpret it the way some
    people want it interpreted, you would say the United States
    would be a clear outlier in the globe?
        Mr. O'Brien. Yes.
        Mr. Grothman. Would they have been a clear outlier in 1866?
        Mr. O'Brien. Well, yes, because at that point most other
    countries in the world were monarchies, and the monarch
    considered you to be something akin to property owing to
    permanent allegiance. So, regardless of where you were born,
    you could still be considered a citizen, depending on how you
    had left the country.
        Mr. Grothman. Of course, we have records of the debate at
    the time, in 1866. There's a quote here from a Senator Howard
    from Michigan, making it clear that he felt we were excluding
    people or foreigners or aliens normally.
        Do you want to elaborate on that, what the drafters at the
    time thought?
        Mr. O'Brien. Sure. The drafters at the time were concerned
    about the treatment of emancipated slaves during the
    Reconstruction time. Frankly, at that point in time, there was
    a relatively small number of people in the United States, and,
    as I had stated in my opening remarks, the concept of ``illegal
    alien'' was not the same as it is now--
        Mr. Grothman. Was there any indication at that time that--
    in the hypothetical that the opponents of President Trump cite
    today, was there any indication that the drafters of the
    amendment believed that if somebody just came here as a visitor
    or whatever--we talk about people coming from China and landing
    in San Diego or whatever--that the equivalent would've resulted
    in people being a citizen? Is there any evidence of that in
    1865-1866?
        Mr. O'Brien. No. The court in Wong Kim Ark was very
    explicit when it said that it was referring to people who were
    residing in the United States with the permission of the
    government.
        Mr. Grothman. There's no evidence of any of the debaters at
    that time saying, whoosh, we're opening the door to become
    American citizens to anybody who just gets off a boat and--
        Mr. O'Brien. No. If you stop and think about the way the
    amendment was drafted, if that's what they wanted, they
    could've just left the qualifying statement out and said
    ``anyone born in the United States is a citizen.'' They added
    ``subject to the jurisdiction thereof'' for a reason.
        Mr. Grothman. Exactly. It's in there for a purpose.
        It's an amendment to the Constitution of the United States.
    You wouldn't put that in there if you wanted anybody who just
    shows up to be--as a baby to be a citizen, correct?
        Mr. O'Brien. That's correct.
        Mr. Grothman. OK. Do any of the others of you know any
    examples of other countries--any other countries that have
    something this broad, just so we understand the way an average
    person thinks about these things?
        Ms. Frost. Yes. I'll say that 32 countries have birthright
    citizenship just like the United States, including Canada and
    Mexico.
        Mr. Grothman. OK. Mr. O'Brien, she's saying something that
    is a little misleading there. When she says ``just like the
    United States''--even there are no European countries--are
    they, when they have birthright citizenship, just like the
    United States? From what you told me, that's not true.
        Mr. O'Brien. No. To the best of my knowledge, at present,
    there is some kind of limitation on birthright citizenship in
    all the places that have it.
        Mr. Grothman. Well, thank you all for tolerating me, and
    we'll send it back to the Chair.
        Mr. Roy. I thank the gentleman from Wisconsin.
        I now recognize the gentlelady from California.
        Ms. Kamlager-Dove. Thank you, Mr. Chair and Ranking Member.
        I think there's a quick video that I have.
        [Video shown.]
        Ms. Kamlager-Dove. All right. I just thought since the
    South Africans are in the news I would play that.
        I had a question for you, Mr. O'Brien. Is the Equal
    Protection Clause part of the 14th Amendment, yes or no?
        Mr. O'Brien. Yes, it is.
        Ms. Kamlager-Dove. OK. Thank you.
        Mr. McCotter, is the Due Process Clause part of the 14th
    Amendment, yes or no?
        Mr. McCotter. Yes, although each clause has different
    language--
        Ms. Kamlager-Dove. OK. Thank you. Yes, I do know, but thank
    you for that.
        I ask those questions because I have heard no objection
    from this body, no quarrel, and no disagreement, with the fact
    that the Equal Protection Clause and the Due Process Clause are
    embedded in the U.S. Constitution through the 14th Amendment.
        In fact, this country's President that so many revere has
    invoked the Due Process Clause on the regular--as he should,
    because it is his right. He has, in fact, showed the country
    how due process works when applied without prejudice. If only
    it would work for the rest of us like that, but I digress. The
    point is; those tenets are here to stay--with birthright
    citizenship.
        I want to talk about the times that gave rise to the 14th
    Amendment. It was 1868. There was the aftermath of the four-
    year, divisive, destructive Civil War that killed roughly
    three-quarters of a million soldiers, or two percent of the
    population; resistance in the form of Reconstruction; a massive
    tsunami in a soon-to-be U.S. territory that killed 70 people.
    In the aftermath of the 1868 Louisiana Constitution which gave
    Black men the right to vote and a public education, you had the
    Louisiana Massacre, where Black people were murdered trying to
    vote. As people would say from my hood in L.A., the White folks
    went cray-cray.
        In spite of all that, White Congressmen showed up in 1868
    to debate the 14th Amendment, because in the midst of the
    madness and violence of the time it was that important. It
    passed, with birthright citizenship--those three clauses. These
    tenets forever changed this country.
        The 14th Amendment is a pillar of American law in a good
    way, and it has been for 160 years. Everyone recognizes that it
    should not be touched, that it is sacrosanct, even Justice
    Scalia. Scalia, whose ideology I do not support--his reasoning
    is that the full 14th Amendment, which includes the Due Process
    Clause and the Equal Protection Clause as well as birthright
    citizenship, was based on originalism, textualism, and
    traditionalism, and that one should consider the political and
    intellectual climate, beliefs, and prejudices of the time it
    was ratified, and the amendment should be protected.
        Which is why it is worth revisiting 1868. Because the
    origin story of the amendment is as applicable now as it was
    then. You had a Democratic President impeached in 1868 and a
    Republican President impeached in 2019-2021. You had political
    violence in 1968 [sic] with the Louisiana Massacre and an
    insurrection that happened here in 2021, where Capitol Police
    were speared with American flags. You had a tsunami in Hawaii
    in 1868 and a fire again in 2023. You had an economic turndown
    in 1868, and you have $15 eggs under Trump right now in 2025.
    Same environment--toxic, hostile, destructive, and deadly.
        Let's be clear, they had immigrants back then, too--Irish,
    Jews, Germans, Italians, and people who couldn't speak English.
    They saw through the moment and passed the 14th Amendment.
        It's not like this country has not had moments where people
    have felt under attack. We've had Jim Crow, World War II with
    the Germans, McCarthyism, the Japanese in internment camps, the
    Vietnam War. Birthright citizenship has survived all that.
        Now, not because of war but because somebody can't get a
    job at Walmart, because of xenophobia, fragile ego, and
    mediocrity, we are going to look for culprits instead of
    protecting the Constitution. It is the epitome of laziness.
        If they could put the 14th Amendment in the Constitution
    during those hostile times, we can keep it in law during ours.
    The climate is not different. It is the patriotism of the
    Republican Party that is different.
        With that, Mr. Chair, I yield back.
        Mr. Roy. Well, I would just observe for the record that the
    phrase ``White people be cray-cray'' is itself cray-cray.
        I will now recognize the gentleman from California.
        Mr. McClintock. Also racist, of course. I was wondering how
    long it would take the Democrats to play the race card, and I
    want to thank my colleague from California for satisfying that
    curiosity.
        We can thank the Democrats, under Joe Biden, for bringing
    this issue to the forefront. The mass illegal migration over
    the last four years has made answering this question a
    necessity: Have those who have illegally entered our country in
    defiance of our laws and who are subject to deportation under
    those laws--can they be considered as having accepted the
    jurisdiction of the laws that their very presence defies? I
    don't think it does.
        We know that this phrase, ``subject to the jurisdiction
    thereof''--we know that means former slaves are citizens. That
    was the stated purpose of the amendment, that's the plain
    language of the amendment--passed, by the way, over the
    objections of the Democratic Party at the time.
        We know from the congressional debate that its authors
    understood its meaning to exclude foreign nationals who were
    merely passing through the country. Somewhere along the way, it
    simply seems to have become assumed.
        My first question--I guess I'll begin with you, Mr.
    O'Brien. Have any laws been passed that specifically provide
    birthright citizenship for illegal migrants?
        Mr. O'Brien. No. There were none. One of the reasons that
    this interpretation persists is because this wasn't an issue at
    the time that the case was decided, so it was left alone--
        Mr. McClintock. Well, how did it come to be that it was
    simply assumed?
        Mr. O'Brien. Nobody knows that. When I was at FAIR, we did
    an extensive research project where we spent hours trying to
    find this, and we couldn't find any commentary on the Wong Kim
    Ark decision discussing the import, we couldn't find any
    government directives indicating that this was the rule. It
    just appears to have started happening in the mid-1920s.
        Mr. McClintock. Mr. McCotter, can you offer any light on
    this subject?
        Mr. McCotter. I think that's probably right. I think that's
    probably practicality. People weren't really paying attention
    perhaps, and that's how we ended up with this kind of--
        Mr. McClintock. No act of Congress, no Supreme Court
    decision, obviously no Executive Order until a few weeks ago
    touching on this subject?
        Mr. Cooper. Mr. McClintock, if I may--
        Mr. McClintock. Mr. Cooper?
        Mr. Cooper. --just jump in here, I think the unfortunate
    reality is that the Wong Kim Ark case was misinterpreted, in
    much the way I think that my friend Professor Frost here
    misinterprets it, to have been a holding some of the very broad
    language that is clearly dicta, instead of the narrow and
    specifically identified holding, which was quite limited to
    people who are in this country and who bear children in this
    country who have a permanent lawful residence in this country,
    at least to act to establish allegiance to the country.
        Mr. McClintock. Right. It just kind of simmered in the
    background until we had this mass, historic, illegal migration,
    and now we have to confront it.
        The Chair says the issue belongs to Congress, and I'd say,
    well, sort of. Obviously, Congress can't deny automatic
    birthright citizenship by statute if that's what the 14th
    Amendment guarantees. Of course, neither could an Executive
    Order. Congress would have to propose a Constitutional
    amendment to the States, if that's what the 14th Amendment
    actually means.
        If the 14th Amendment does not provide automatic birthright
    citizenship and no statutes have been passed and no other
    Supreme Court orders issued, it seems to me that no law would
    be needed to deny it; it was never extended in the first place.
        Is that--Mr. O'Brien, is that essentially correct?
        Mr. O'Brien. Yes, that is correct.
        The question that Wong Kim Ark has been interpreted as
    addressing was never the question that was before the court.
    The case came before the court to determine whether Wong Kim
    Ark was an individual who fell into one of either the
    privileged or prohibited classes under the Chinese Exclusion
    Act, which itself was a modification of a treaty of trade and
    friendship between China and the United States--
        Mr. McClintock. Well, they--were here permanently, within
    the laws, within the jurisdiction of the United States, by act
    of a ratified treaty.
        Mr. O'Brien. Yes. That's exactly it.
        Mr. McClintock. So, if that's the case, then wouldn't the
    President's Executive Order simply be restating existing law?
        Mr. O'Brien. I believe that's exactly what it does.
        Mr. McClintock. Mr. McCotter?
        Mr. McCotter. That's what my amicus brief on behalf of
    Members of this Committee says, sir.
        Mr. McClintock. Mr. Cooper?
        Mr. Cooper. I agree with that, Congressman McClintock.
        Mr. McClintock. I will just assume Professor Frost
    disagrees.
        That's it for me, Mr. Chair. I yield back.
        Mr. Roy. I thank the gentleman from California.
        I will now recognize the Ranking Member and gentlelady from
    Pennsylvania, Ms. Scanlon.
        Ms. Scanlon. Thank you.
        The effort to end birthright citizenship is hardly
    something new. It's been the long-term goal of antisemitic and
    White nationalist groups for decades. The claim is largely
    based on the bigoted Great Replacement conspiracy theory, the
    same conspiracy theory that has inspired a lot of deadly
    terrorist attacks in recent years. We're hearing really
    uncomfortable echoes of some of that here in Congress in this
    day and age.
        As we're listening to some of these statements, I was
    reminded of one of our predecessors' statements here, the great
    Barbara Jordan, who at a critical moment in our country's
    history talked about ``we, the people.'' When that document was
    completed in September 1787, neither she nor I, nor Professor
    Frost were included in that document, but, as she said,
    ``through the process of amendment, interpretation, and court
    decision, we were finally included.''
        As Members of Congress now, we should not sit here and be
    idle spectators, much less participants, in the diminution, the
    subversion, or the destruction of the Constitution. I would
    submit that the effort we're seeing here today to try to
    reinterpret and twist the clear language and legislative
    history of the birthright citizenship clause would be such a
    diminution, subversion, or destruction of the Constitution.
        Now, Professor Frost, you've studied this for quite a long
    time. You, unlike several of the people here, are not a
    contributor to ``Project 2025.''
        We've heard a lot about the specific language ``subject to
    the jurisdiction of.'' Why did they choose that phrase?
        Ms. Frost. The Reconstruction Congress told us clearly what
    they wanted to do there. They wanted to exclude the children of
    diplomats and Ambassadors.
        Ms. Scanlon. Uh-huh.
        Ms. Frost. They also discussed at length the need to
    exclude children born into Native American Tribes, which were
    separate foreign sovereigns with whom we had treaty relations,
    with their own courts and laws.
        Ms. Scanlon. OK.
        It did strike me, the inconsistency in claiming that an
    undocumented immigrant is not subject to the jurisdiction of
    the United States, when they are, in fact, subject to our
    criminal code, paying taxes, et cetera.
        Can you talk about that and talk about how that relates to
    the issue of the exception for diplomats and their children?
        Ms. Frost. Yes, sure. Of course, all children of
    immigrants, including--and all immigrants, including
    undocumented immigrants, are subject to the laws of the United
    States. President Trump knows that better than most, in that he
    is seeking to deport and enforce the immigration laws and other
    laws fully against this group.
        I'll also add something I mentioned before, which is, the
    Reconstruction Congress was well aware there were people in the
    United States in violation of the law. Those were the enslaved
    African-Americans brought to the United States in violation of
    Federal law. Of course, the Citizenship Clause was intended to
    provide them with citizenship despite the fact they were there
    in violation of U.S. law.
        Ms. Scanlon. I noticed you reacting to some of the
    testimony about the U.S. being some outlier with respect to
    birthright citizenship or having--it looked like you might have
    a different interpretation. Can you expand on that?
        Ms. Frost. Yes. With all due respect to Mr. O'Brien, who is
    a deep expert in U.S. immigration law, I don't think he is
    familiar with the laws of the 32 other countries that have
    birthright citizenship--automatic birthright citizenship, just
    like the United States.
        In Canada, if you're born in Canada, regardless of who your
    parents are, you're a citizen. That's why Senator Ted Cruz had
    to renounce his Canadian citizenship in 2014, because he was
    born in Canada to a U.S.-citizen mother.
        Ms. Scanlon. Thank you.
        I also was struck by the idea that we would be putting a
    rather strange burden on our maternity wards and our States if
    every time someone is born they have to determine the
    citizenship or the immigration status of their parents.
        How would that play out? Does the delivery nurse have to
    ask which border the person came across, whether or not they
    checked in, whether they filed an asylum claim, or whether
    maybe they just overstayed their visas to study here if they
    were, for example, from South Africa?
        Do you have any thoughts on that?
        Ms. Frost. It would impose enormous bureaucratic burden on
    hospitals, on State agencies, on our already-overburdened
    immigration officials, and on the parents of newborn children.
        As an immigration lawyer, I will say, many people lack
    documentation of their citizenship or of their immigration
    status if they're lawful permanent residents. They may not be
    able to show that. We are asking these people at the time of
    their child's birth to prove this or risk having their child be
    deemed an undocumented immigrant from the moment it's born.
        Ms. Scanlon. OK. I do think it's interesting that this is
    hardly the open-and-shut case that our colleagues would
    suggest. Senator Cruz was recently quoted as saying, ``That's
    actually a disputed legal question. There are serious scholarly
    arguments on both sides,'' et cetera.
        With that, I see my time has expired, so I would just have
    a unanimous-consent request to enter into the record a
    statement of the Leadership Conference on Civil and Human
    Rights.
        Mr. Roy. Without objection.
        Ms. Scanlon. Thank you. I yield back.
        Mr. Roy. I thank the gentlelady from Pennsylvania.
        I will also, without objection, ask to insert in the record
    a collection of quotes from the gentlelady from Texas, Ms.
    Jordan. The airport bears her name I fly in and out of Austin,
    Texas, every week.
        It's a collection of quotes from her service as Chair of a
    Commission regarding immigration in the 1990s, in which she
    makes very clear her position that the enforcement of border
    security is important, the importance of having immigration
    policy that works is important, that we should not have
    amnesty, that we should--immigration should not be a path to
    public benefits--she was very clear in her language about
    that--and numerous other quotes from the gentlelady from Texas,
    Ms. Jordan.
        Without objection, I'll insert that in the record.
        Mr. Roy. I will now recognize the gentleman from Missouri,
    Mr. Onder.
        Mr. Onder. Thank you, Mr. Chair.
        Thank you to the witnesses for being here today.
        My colleague from Pennsylvania mentioned the term ``White
    nationalism,'' and I would remind everyone of the context of
    the 14th Amendment, that the original White nationalists,
    Southern Democrats, fought a civil war to deny Blacks their
    Constitutional rights, to deny their very humanity, and then,
    in the wake of that civil war, sought to deny them of the
    rights of citizenship as well. In that context the 14th
    Amendment was enacted to make sure that White nationalists,
    Southern Democrats, not deny Black slaves--former slaves of
    their rights, and therefore made it clear they were citizens.
        Mr. McCotter, one of the authors of the 14th Amendment,
    Senator John Bingham, said that,

            The Citizenship Clause conferred citizenship to every human
            being born within the jurisdiction of the United States of
            parents not owing allegiance to any foreign sovereignty.

    Another author of the 14th Amendment, Senator Lyman Trumbull,
    stated that ``subject to the jurisdiction of the United
    States'' in the Citizenship Clause meant not owing allegiance
    to anybody else.
        Do aliens, and particularly illegal aliens, owe allegiance
    exclusively to the United States, or do they still bear
    allegiance to their home country?
        Mr. McCotter. They would still bear at least partial
    allegiance to their home country.
        Mr. Onder. Therefore, in part, foreign Ambassadors,
    diplomats do not have--children of foreign Ambassadors and
    diplomats do not have birthright citizenship?
        Mr. McCotter. That's correct. This came up earlier in some
    prior questioning, about how LPRs, lawful permanent residents,
    could somehow be included within the birthright citizenship
    clause. I think the response to that is that Wong Kim Ark
    itself recognized that those individuals do have sufficient
    allegiance, but that's because they're here permanently with
    the consent of the United States.
        Mr. Onder. OK. An example of the absurdity of all-out
    birthright citizenship: El Chapo's wife, Emma Coronel, traveled
    to California to give birth and then immediately returned to
    Mexico. Under Biden's policy, the children of a drug lord were
    then American citizens, who had every right to American bank
    accounts. Indeed, they obtained American bank accounts.
        Did El Chapo's children--did they owe full allegiance to
    the United States?
        Mr. McCotter. They would not, no. Their children would've
    been at least partially allegiant to their parents' home
    country.
        Mr. Onder. So, it is that--and in your testimony it's very
    clear--that this idea of full allegiance is pivotal here?
        Mr. McCotter. It was the widely understood understanding of
    the jurisdiction clause at the time it was ratified, yes.
        Mr. Onder. OK.
        Mr. McCotter. If I may just briefly--
        Mr. Onder. Yes.
        Mr. McCotter. --respond to the claim that some of the
    arguments in this area are inherently racist in some way, I'd
    point out, in Wong Kim Ark, Justice John Harlan, the sole
    dissenter from Plessy v. Ferguson, the patron of interpreting
    the Constitution as colorblind, he dissented in Wong Kim Ark
    and said that Wong had never become a U.S. citizen.
        Mr. Onder. Yes. Likewise, if I recall, it was, what, Plyler
    v. Doe, in which Justice Brennan, in dictum, in a footnote,
    opined that anyone born physically in the United States be a
    birthright citizen.
        Does dictum have the same force of law as a holding in a
    case?
        Mr. McCotter. It doesn't. Also, in that footnote, Justice
    Brennan said that jurisdiction, the phrase ``jurisdiction,'' is
    bounded only, if at all, by principles of sovereignty and
    allegiance--the exact same things we've already talked about.
        Mr. Onder. Which is what you're arguing today? OK. Thank
    you.
        Mr. Roy. The gentleman yields?
        Mr. Onder. I yield.
        Mr. Roy. All right. I appreciate that.
        I will now recognize myself for five minutes.
        I would just ask: Professor Frost, we talked a little bit
    earlier about the extent to which we've got--the record is
    replete with examples of tourism, birth tourism, in which there
    are mal-actors who are profiting by moving people into--or
    transporting people into the United States to then deliver
    babies.
        So, we have a Georgetown Law report talking about women
    from foreign countries--China and Russia--paying tens of
    thousands of dollars to temporarily relocate to the United
    States, give birth, and then often return. We have that
    happening at the Southern border with some regularity, in
    McAllen; we have it in Laredo; we have it in El Paso and
    throughout Texas, I certainly can attest personally.
        You believe that all those children, regardless of why they
    end up on American soil, that those children are, in fact, U.S.
    citizens under the law?
        Ms. Frost. I'm so glad you asked that, because there's
    actually a Federal regulation, 22 CFR 41.31, which bars people
    from coming to the United States to give birth and gives
    consular officials the authority to bar anyone--
        Mr. Roy. The individual--
        Ms. Frost. --visibly pregnant from--
        Mr. Roy. That's not the question. The question is; these
    babies are born on American soil. These babies are born on
    American soil. They are brought here. They are brought here for
    profit. Are they citizens, yes or no?
        Ms. Frost. Yes, they are citizens. If you have a problem
    enforce the regulations.
        Mr. Roy. OK. So, the question is, they are, in fact,
    citizens under your interpretation of the law?
        Mr. McCotter, you noted just a minute ago that, in fact,
    Justice Harlan was the lone dissent in Plessy--correct?
        Mr. McCotter. That's correct, yes.
        Mr. Roy. Was also a dissenter in Wong.
        Mr. McCotter. Right. He joined Chief Justice--
        Mr. Roy. So a threshold question, a threshold question,
    here is: With respect to Wong, which is often cited as the
    basis, now 130 years hence, for these individuals being viewed
    as citizens by, now, in this instance, the most pernicious
    models, where people are profiting for bringing people into the
    United States to have babies, exploit our laws, go back to
    their countries, or exploit our laws for citizenship, that they
    are deemed citizens based on an interpretation of an opinion
    130 years ago, yes or no, Mr. McCotter, do you believe that
    Wong stands for that premise?
        Mr. McCotter. I do not. I cite support for that in the
    brief.
        Mr. Roy. You believe that it is limited to, at most, an
    LPR-type status under today's law?
        Mr. McCotter. Right.
        Here's a quote:

            Wong, by its facts and some of its language, is limited to
            children born of parents who at the time of birth were in the
            United States lawfully and indeed were permanent residents.

    That's from a professor at NYU.
        Mr. Roy. Mr. Cooper, do you share that view?
        Mr. Cooper. I do share that view.
        I would point out again that Wong itself conditioned its
    irresistible conclusion from the 14th Amendment. It affirms the
    ancient and fundamental rule of citizenship by birth within the
    territory in the allegiance and under the protection of the
    country, which was premised, in that case, on the parents of
    Wong being lawful permanent residents, allegiant to this
    country.
        Mr. Roy. So, to be clear, Mr. Cooper, you do not believe
    that Wong's opinion extends, certainly, at a minimum, beyond,
    again, what we would characterize under today's law as an LPR-
    status individual?
        Mr. Cooper. No. It clearly didn't have anything to do, as
    Mr. O'Brien has said, with illegal aliens or aliens here who
    may be here lawfully but only temporarily.
        Mr. Roy. Are you aware of any opinion by the U.S. Supreme
    Court that has extended beyond that interpretation since Wong?
        Mr. Cooper. No.
        Mr. Roy. Mr. McCotter, do you agree with that?
        Mr. McCotter. I agree, yes.
        Mr. Roy. Mr. O'Brien, do you agree with that?
        Mr. O'Brien. I do.
        Mr. Roy. So, now, having established that this is, in fact,
    the State of the law with respect to Wong and everything since
    Wong, now my question is, is Wong itself correct?
        We have an opinion by Justice Harlan--Justice Harlan, who
    was the dissent in Plessy. Was Plessy later overturned?
        Mr. Cooper?
        Mr. Cooper. Yes. Yes.
        Mr. Roy. Mr. McCotter?
        Mr. McCotter. Yes.
        Mr. Roy. Overturned. Mr. O'Brien?
        Mr. O'Brien. Yes.
        Mr. Roy. Professor Frost, Plessy was overturned?
        Ms. Frost. Yes.
        Mr. Roy. Now we've got Wong. Is Wong itself correct on the
    law with respect to even LPRs, under the interpretation of the
    14th Amendment?
        I would ask, Mr. Cooper, your opinion on that.
        Mr. Cooper. Well, I will tell you, Mr. Chair, that I think
    there is significant support for the conclusion, the holding,
    in Wong in the debates under the Citizenship Clause. One
    doesn't have to conclude that it is correct to uphold this
    Executive Order, because the Executive Order is entirely
    consistent with Wong.
        Mr. Roy. Mr. McCotter, do you have anything to add to that?
    Mr. O'Brien? Then I will be done with my time.
        Mr. McCotter. No, sir.
        Mr. Roy. Mr. O'Brien, anything to add?
        Mr. O'Brien. I do not believe it was correct. I would go so
    far as to say that the holding itself should be considered
    limited to the terms that were before the court, which had to
    do with a treaty with China which is no longer in existence.
        Mr. Roy. I appreciate the gentlemen.
        We now have another Member of the Committee, and I will
    recognize my colleague and my friend from Texas, Mr. Gill.
        Mr. Gill. Thank you, Mr. Chair.
        A hundred and sixty years ago, Democrats were asking us, if
    it weren't for slavery, who would pick our cotton? Today
    they're asking a similar question, which is, if it weren't for
    mass migration, who would pick our avocados? It's a similar
    pattern that they've established. You can say that the United
    States is not, in fact, better off by importing a massive class
    of what is virtually serf labor, which undermines our cultural
    fabric and our government as well.
        I'd also like to point out that the admission that we need
    more and more unvetted illegal aliens pouring into our country
    is also an admission that the goal--or one of the goals of our
    colleagues on the other side of the aisle is explicitly to
    reduce American wages. Because that's exactly what they're
    doing and what they're saying they're doing whenever they talk
    about bringing in cheap labor.
        We're talking here about birthright citizenship, which has
    provided an enormous loophole in our immigration system and has
    facilitated the mass importation of illegal aliens. Through
    this current loophole, upwards of 300,000 people a year are
    granted automatic citizenship in the United States despite
    having been born to parents who have no ties to our country and
    who are here illegally.
        Also, due to failures in our legal immigration system,
    these individuals then use their citizenship to sponsor their
    illegal-alien parents and other family members for a green
    card, which creates a never-ending cycle of people coming into
    the country who have no business being here at all.
        We've now gotten to the point where the percentage of
    America's foreign-born population is quickly approaching 15
    percent, which is the highest it's been since at least 1910.
        Mr. O'Brien, I'd like to start with you, with a couple
    questions, if you don't mind.
        Under the 14th Amendment, Native Americans, due to Tribal
    allegiances, were not granted citizenship. Is that correct?
        Mr. O'Brien. That's correct.
        Mr. Gill. Got it. The children of foreign diplomats were
    also expressly excluded from birthright citizenship?
        Mr. O'Brien. That's correct.
        Mr. Gill. Got it. From the available evidence, is it safe
    to say that the authors of the 14th Amendment understood a
    difference between total allegiance to the United States
    compared to simply being subject to the legal jurisdiction by
    nature of presence in our country?
        Mr. O'Brien. Yes. I think they made that very clear in the
    debates.
        Mr. Gill. Got it. In your opinion, based off this
    difference, would the authors of the 14th Amendment conclude
    that an individual whose parents did not owe total allegiance
    to the United States be granted birthright citizenship?
        Mr. O'Brien. No. I think the import of the holding in Wong
    Kim Ark was that only individuals who were lawfully present in
    the United States could transmit citizenship to their children
    born--or, I should say, only the children born of people who
    were lawfully present in the United States could acquire
    citizenship at birth.
        Mr. Gill. Uh-huh. Despite all this, some of my colleagues
    here still contend that, essentially, any person born here,
    regardless of their legal status or the legal status of their
    parents, have a Constitutional right to become a United States
    citizen.
        Have you seen any evidence to suggest that the authors of
    the 14th Amendment would support that view?
        Mr. O'Brien. No. I don't think the authors of the opinion
    in Wong Kim Ark would've supported it either.
        Mr. Gill. Got it. Thank you very much.
        Mr. Chair, I yield my time back to you.
        Mr. Roy. Well, I thank my colleague from Texas.
        I would now recognize the gentlelady from Pennsylvania for
    a unanimous-consent request.
        Ms. Scanlon. Yes. I seek unanimous consent to introduce
    Barbara Jordan's obituary in The New York Times from January
    18, 1996, in which it notes that she spoke out against a
    proposal to deny automatic citizenship to the children of
    illegal immigrants, saying, I quote, ``to deny birthright
    citizenship would derail this engine of American liberty.''
        Mr. Roy. Without objection.
        I would ask consent to insert into the record the amicus
    brief that was submitted by a number of House colleagues that
    was drafted by Mr. McCotter.
        I would also like to introduce into the record a note that
    was written by Amy Swearer from The Heritage Foundation, who
    has written extensively on this issue; and also an op-ed that
    was written by Mr. Cooper, along with Pete Patterson, on this
    subject as well.
        Without objection, I'll insert that in the record.
        Mr. Roy. That concludes today's hearing. We thank the
    witnesses for appearing before the Subcommittee today.
        Without objection, all Members will have five legislative
    days to submit additional written questions for the witnesses
    or additional materials for the record.
        Mr. Roy. Without objection, the hearing is adjourned.
        [Whereupon, at 4:24 p.m., the Subcommittee was adjourned.]

        All materials submitted for the record by Members of the
    Subcommittee on the Constitution and Limited Government can
    be found at: https://docs.house.gov/Committee/Calendar/ByEvent
    .aspx?EventID=117923.

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