Montana, Others Ask SCOTUS to Rule on Birthright Citizenship

Montana and 23 other states filed an amicus brief last week petitioning the Supreme Court to define that the 14th Amendment’s Citizenship Clause does not confer automatic citizenship on every person born in America.

These attorneys general submitted a brief in support of the Trump administration, requesting the Supreme Court clarify his executive order seeking to end birthright citizenship.

The Trump administration is currently facing several legal cases concerning the executive order, including Trump v. Washington and Trump v. Barbara.

In both these cases, lower courts blocked the executive order from taking effect.

The plaintiffs in the legal cases challenging Trump’s executive order argue that anyone born on American soil is automatically a U.S. citizen, according to the brief.

The attorneys general said this argument is wrong based on text, history and precedent.

In the 14th Amendment, the Citizenship Clause says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The attorneys general argued that the phrase “born or naturalized in the United States, and subject to the jurisdiction thereof” does not just mean being physically present in the country. But instead, historical usage of the amendment shows it was only for American citizens and lawful residents.

In the Civil Rights Act of 1866, which said all people born in America where citizens, excluded children of people who were “subject to any foreign power,” according to the brief.

They also argued that the legislators who drafted this law and the 14th Amendment only said it applied to people domiciled in America, not to those with only temporary presence.

The brief cited federal rulings from the late 1800s that denied citizenship to children born in America to parents who were not domiciled in the country.

The attorneys general said previous Supreme Court decisions in cases such as Slaughter-House Cases, Minor v. Happersett, Elk v. Wilkins and Wong Kim Ark, cast doubt on children born to foreign nationals automatically becoming American citizens.

According to the brief, the plaintiffs in these cases have said for over 100 years the American government has given citizenship to anyone born in the country regardless of their parents’ immigration status. However, the attorneys general stated that these recent actions don’t overrule the original interpretation of the Citizenship Clause.

Tennessee and Iowa are leading the brief from the 24 states.

Tennessee Attorney General Jonathan Skrmetti said, “The idea that citizenship is guaranteed to everyone born in the United States doesn’t square with the plain language of the 14th Amendment or the way many government officials and legal analysts understood the law when it was adopted after the Civil War.”

“If you look at the law at the time, citizenship attached to kids whose parents were lawfully in the country. Each child born in this country is precious no matter their parents’ immigration status, but not every child is entitled to American citizenship,” he added.

Besides Montana, Tennessee and Iowa, attorneys general from Alabama, Alaska, Arkansas, Georgia, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming signed onto the brief.