‘Subject to the Jurisdiction Thereof’: Birthright Citizenship and the Fourteenth Amendment

Immigration Enforcement and Sanctuary PoliciesHouse Judiciary Subcommittee on Constitution and Limited Government · 2025-02-25 · 119th Congress
The House Judiciary Subcommittee on the Constitution and Limited Government held this hearing to examine the original meaning of the 14th Amendment's citizenship clause and its bearing on President Trump's executive order seeking to end automatic birthright citizenship for children of undocumented and temporary immigrants. Begins at 0:36:55
Transcript
Highlights

Title

Constitutional meaning of "subject to the jurisdiction" and birthright citizenship

Purpose

The House Judiciary Subcommittee on the Constitution and Limited Government held this hearing to examine the original meaning of the 14th Amendment's citizenship clause and its bearing on President Trump's executive order seeking to end automatic birthright citizenship for children of undocumented and temporary immigrants. Four legal witnesses presented competing interpretations of the "subject to the jurisdiction thereof" language and the 1898 *Wong Kim Ark* precedent, while members debated the order's legality, history, and policy consequences. Begins at0:36:55

Who spoke

Chairman Chip Roy (R-TX)0:36:55: Argued the 14th Amendment's jurisdiction clause requires full, exclusive allegiance and excludes children of illegal and temporary aliens0:37:55; cited CBO and FAIR estimates of welfare costs tied to birthright citizenship, including a projected $177 billion over 10 years0:41:27, and referenced Rep. Brian Babin's Birthright Citizenship Act0:44:28.

Ranking Member Delia Ramirez *(referred to as Ms. Scanlan/Ranking Member in transcript)*0:44:58: Argued the citizenship clause's meaning has been settled for over a century and that reinterpreting it would create a permanent underclass0:46:59; noted four federal judges, including a Reagan appointee, have already blocked the executive order as unconstitutional0:51:31.

Charles Cooper, Cooper and Kirk PLLC0:56:03: Testified that "jurisdiction" requires full political allegiance from permanent lawful residence, not mere obedience to laws0:57:04; traced the clause to the Civil Rights Act of 1866 and Senator Trumbull's debate over "Indians not taxed"0:59:05; said *Wong Kim Ark* was limited to children of parents with permanent domicile1:01:36.

R. Trent McCotter, Boyden Gray PLLC1:02:06: Argued "subject to the jurisdiction" invokes a historic allegiance doctrine, citing Senator John Bingham's 1866 statement that citizenship excludes those "owing allegiance to any foreign sovereignty"1:03:37; said the theory that jurisdiction means merely subject to law cannot explain exceptions for ambassadors, invading soldiers, or American Indians1:05:39.

Matt O'Brien, Immigration Reform Law Institute1:07:40: Said *Wong Kim Ark* could not have addressed illegal aliens because the concept barely existed in 18981:08:40; called Justice Brennan's *Plyler v. Doe* footnote on universal birthright citizenship non-binding dicta1:09:40.

Amanda Frost, University of Virginia School of Law1:11:41: Testified the citizenship clause's text, history, and unanimous precedent confirm birthright citizenship for nearly all born in the U.S.1:11:41; said the Reconstruction Congress knew of illegally imported enslaved people and still intended to grant citizenship broadly1:12:42; warned the executive order would require all parents to prove citizenship status at a child's birth1:15:15.

Rep. Harriet Hageman (R-WY)1:16:34: Raised concerns about birth tourism and international surrogacy schemes, particularly involving Chinese nationals, as national security risks1:16:451:20:17.

Rep. Pramila Jayapal (D-WA)1:22:18: Cited Judge Coughenour's "blatantly unconstitutional" ruling1:22:18; had Frost confirm parallels between current arguments and those rejected in *Wong Kim Ark*1:23:19; described a Washington state asylum applicant, Alicia Lopez, affected by the order1:26:21.

Chairman Jim Jordan (R-OH)1:27:21: Yielded time to Rep. Biggs without extended remarks of his own.

Rep. Andy Biggs (R-AZ)1:27:52: Posed a Yuma, Arizona hypothetical of a border-crosser giving birth and returning home, asking each witness whether the child would be a citizen1:28:22; witnesses split, with Frost saying yes and Cooper, McCotter, and O'Brien saying no1:28:52.

Rep. Dan Goldman (D-NY)1:33:57: Pressed O'Brien and McCotter on inconsistencies, noting the executive order excludes even lawful visa holders despite their being "lawfully present"1:35:28; warned the "allegiance" test could invite scrutiny of dual-loyalty claims, invoking his own experience as a Jewish American1:38:00.

Rep. Wesley Hunt (R-TX)1:39:59: Contrasted birthright citizenship for descendants of enslaved people with citizenship claims by children of those who "crossed the border illegally," citing his own family's military and slavery history1:40:31; questioned O'Brien on national-security risks of birth tourism1:42:33.

Rep. Becca Balint (D-VT)1:45:04: Asked Frost to confirm the framers intended birthright citizenship for children of slaves and immigrants alike1:46:36; noted 33 countries have birthright citizenship1:48:37; asked about consequences if the Supreme Court reversed course, including unwinding citizenship for descendants of past immigration violations1:49:07.

Rep. Addison McDowell (R-NC)1:51:08: Asked O'Brien about top source countries for birth tourism (China, India)1:51:08 and about risks to expectant mothers from long-haul travel1:51:38; asked McCotter about congressional options, noting his amicus brief and the Birthright Citizenship Act of 20251:53:39.

Rep. Jamie Raskin (D-MD), Ranking Member1:54:40: Read quotes from four federal judges (appointed by Reagan, Bush, Obama, Biden) all finding the executive order unconstitutional1:55:11; cited Senator Benjamin Wade's 1866 warning about future political parties reinterpreting the clause1:58:13.

Rep. Tom Tiffany (R-WI)1:59:53: Asked witnesses about the phrase "not subject to any foreign power," using a hypothetical of an American having a baby in Italy2:00:13; questioned whether the U.S. is an outlier globally on birthright citizenship2:01:45.

Rep. Sydney Kamlager-Dove (D-CA)2:05:18: Played a video clip and questioned O'Brien and McCotter on the Equal Protection and Due Process Clauses2:05:49; gave an extended historical comparison of 1868 and 2025 America2:06:50.

Rep. Kevin Kiley (R-CA)2:10:52: Asked whether any laws or court decisions have ever specifically extended birthright citizenship to illegal migrants' children2:11:22; suggested the Wong Kim Ark holding was misinterpreted and simply "simmered" unchallenged until recent mass migration2:13:23.

Rep. Madeleine Dean (D-PA), Ranking Member2:16:25: Linked the push to end birthright citizenship to "anti-Semitic and white nationalist groups" and the "great replacement" theory2:16:25; had Frost detail the bureaucratic burdens the order would impose on hospitals and parents2:20:27.

Rep. Bill Huizenga? (R-MO) *(named "Mr. H" in transcript, Missouri)*2:22:28: Argued the 14th Amendment was written to stop "white nationalist Southern Democrats" from denying citizenship to freed slaves2:22:28; discussed El Chapo's wife giving birth in California as an example of alleged abuse2:24:29.

Chairman Roy (closing round)2:27:00: Pressed Frost, Cooper, McCotter, and O'Brien on whether *Wong Kim Ark* itself was correctly decided and whether it extends beyond lawful permanent resident status2:28:202:30:50.

Rep. Craig Goldman? (R-TX) *(named "Mr. Gil" in transcript)*2:32:22: Argued birthright citizenship creates a "loophole" enabling roughly 300,000 automatic citizenships a year and chain migration of family members2:33:22; questioned O'Brien on the framers' intent regarding allegiance2:34:53.

Key moments

Chairman Roy cited a Center for Immigration Studies estimate that 124,000–300,000 "anchor babies" are born annually and a CBO figure of $177 billion in welfare spending over 10 years tied to illegal aliens and their U.S.-born children0:40:260:41:27.

Cooper, McCotter, and O'Brien testified that *Wong Kim Ark* (1898) was expressly limited to children of parents with "permanent domicile and residence" in the U.S., not illegal or temporary residents1:01:361:02:061:10:10.

Frost countered that enslaved people illegally imported after 1808 were "the illegal aliens of the day" and that the Reconstruction Congress still intended them and their children to receive citizenship, undercutting the illegal-alien exclusion theory1:12:421:13:13.

In the Yuma hypothetical, witnesses split sharply: Frost said a child born to a border-crosser who returns home is a citizen "of course"1:28:52, while Cooper, McCotter, and O'Brien all said no1:28:52.

Rep. Goldman confronted O'Brien and McCotter that their own "lawful presence with consent of the sovereign" standard would include visa holders, yet Trump's executive order excludes them — a discrepancy neither witness fully resolved1:35:281:35:58.

Rep. Jayapal and Frost linked current arguments to Solicitor General Holmes Conrad's 1897 *Wong Kim Ark* brief, noting Conrad was a former Confederate officer who also argued the entire 14th Amendment was unconstitutional — an argument the Supreme Court rejected1:24:201:24:51.

Rep. Raskin read rulings from four federal judges appointed by Reagan, Bush, Obama, and Biden, all finding the executive order unconstitutional, including Judge Coughenour's statement that it presented "a question as clear as this"1:55:411:56:11.

O'Brien and McCotter testified they found no evidence that automatic birthright citizenship for children of illegal or unlawfully present aliens was ever codified by statute or court holding, calling current practice an assumption dating to the mid-1920s2:11:522:12:22.

Frost disputed the claim that the U.S. is uniquely broad on birthright citizenship, noting 32–33 other countries, including Canada and Mexico, grant it similarly, citing Ted Cruz's 2014 renunciation of Canadian citizenship as an example2:19:262:19:56.

Chairman Roy closed by getting all four witnesses to agree that *Wong Kim Ark* has never been extended by any subsequent Supreme Court decision beyond lawful-permanent-resident-type status, though O'Brien alone stated he believed the original *Wong Kim Ark* holding itself was wrongly decided2:30:202:31:21.

Metadata

CommitteeHouse Judiciary Subcommittee on Constitution and Limited Government
Chamber / CongressHouse · 119th Congress
Date2025-02-25
TypeHearing
Witnesses
Ms. Amanda Frost — Professor of Law, University of Virginia School of Law
Mr. R. Trent McCotter — Partner, Boyden Gray PLLC
Mr. Charles Cooper — Chairman and Founding Partner, Cooper and Kirk PLLC
Mr. Matt O'Brien — Director of Investigations, Immigration Reform Law Institute
Videoyoutube
Transcript241 caption blocks · 19,549 words · 2:40:51 runtime
EventCongress.gov 117923