[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.
[all]