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Authored by Jacob Grandstaff via RealClearPolitics,

Leaving birthright citizenship to the Roberts court is walking into a minefield – legislation is the smarter route to end this unnecessary relic of the 19th century. Here’s why.

If conservatives are counting on the Supreme Court to rule birthright citizenship for illegal aliens unconstitutional, think again – it isn’t the slam dunk many believe it to be. But that doesn’t mean there isn’t a better path to abolishing this disastrous policy for good.

Some background: President Trump’s Jan. 20 executive order rolling back birthright citizenship for illegal aliens stipulates that natural-born U.S. citizens must have at least one parent who is a citizen or permanent resident.

On Feb. 19, the 9th Circuit Court of Appeals upheld a nationwide injunction on the order until it hears the case in June. Trump’s lawyers will ultimately have to convince the Supreme Court of his interpretation of the 14th Amendment’s Section 1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.”

Despite much legal analysis to the contrary, originalist conservatives should be wary of turning to the framers of the 14th Amendment or later Supreme Court rulings on this controversial issue.

Instead, Congress needs to immediately back up President Trump’s executive order before it makes its way to the Supreme Court. The justices will be more amenable to legislation, considering Section 5 of the 14th Amendment givesCongress the “power to enforce, by appropriate legislation, the provisions of this article.”

The court has never established precedent on birthright citizenship for the children of illegal aliens, but it acts like Wong Kim Ark (1898) – which established it for legal immigrants’ children – did.

In Plyler v. Doe (1982), liberal Justice William Brennan muddied the waters, writing in a non-binding footnote that there is “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’” between lawful and unlawful immigrants. Notably, none of the four justices who dissented in Plyler v. Doe objected to Brennan’s footnote on birthright citizenship – including conservatives William Rehnquist and Sandra Day O’Connor.

We should expect the current Supreme Court to examine the framers’ intent, something the late University of Texas law professor Lino Anthony Graglia correctly argued is the best way to interpret a constitutional law. But that’s where things get tricky.

In 1866, the House of Representatives didn’t debate the birthright citizenship issue because the version that body passed didn’t include that clause in Section 1.

Once the amendment moved to the Senate, however, debate transcripts show senators interpreted the birthright citizenship clause – introduced by Sen. Benjamin Wade (R-OH) – to extend to everyone born in the U.S., except the children of foreign diplomats and – at the time – Indian tribe members.

Sen. William Fessenden (R-ME) specifically asked if the clause would include those “born here of parents from abroad temporarily in this country.”

“I know that is so in one instance,” replied Sen. Wade, “in the case of children of foreign ministers . . . their children would not be citizens of the United States, although born in Washington.”

Some point to the statement of Sen. Jacob Howard (R-MI) as evidence that the 14th Amendment’s original intent did not extend birthright citizenship to the children of non-citizens. “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors of foreign ministers accredited to the government of the United States,” he said.

But Sen. Howard was simply reiterating Sen. Wade on diplomats’ children. We know this because senators subsequently rose in opposition and support of the clause precisely because it would give birthright citizenship to the children of foreigners and aliens, and no one – including Sen. Howard – objected to their interpretation.

Sen. Edgar Cowan (R-PA) opposed the clause because it would give birthright citizenship to the children of Gypsies who “settle as trespassers.”

Sen. John Conness (R-CA) said, “I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States . . .”

Sen. Conness then threw up a roadblock to the argument that the 14th Amendment doesn’t apply to temporary legal residents’ children. To reassure Sen. Cowan, the amendment would not cause the Chinese to immigrate Californians “out of house and home,” he explained, “The habits of those people, and their religion, appear to demand that they all return to their own country at some time or other, either alive or dead.”

This is the heart of the problem for conservatives counting on our originalist Supreme Court today to rule birthright citizenship unconstitutional. If the Roberts court – which laudably bases decisions on the words and original intent of the men who authored our constitutional amendments – stops here, we might end up enshrining birthright citizenship forever instead of abolishing it.

Prof. Graglia argued the senators could not have meant to grant birthright citizenship to the children of illegal aliens because “there were no illegal aliens in 1868.” Although mid-19th century American immigration law was a veritable Wild West compared with today, it isn’t smart to gamble that at least five justices will distinguish between 19th century Gypsy “trespassers” and today’s illegal aliens.

But that’s only half of President Trump’s executive order. There remains far less hope that the court will interpret the 14th Amendment to exclude the children of temporary legal immigrants based on the statements of Sens. Wade and Conness.

A 2010 Congressional Research Service report concluded: “In a still evolving area of law,” the court has held that Congress can use Section 5 to go “beyond judicial decisions defining such rights in order to enforce” the 14th Amendment. It added that even if the court were to disagree, Congress already has the power to define “subject to the jurisdiction thereof” under its immigration and naturalization authority in clauses 4 and 18 of Article I, Section 8.

Congress has already established precedent in redefining “subject to the jurisdiction thereof” with the Indian Nationality Act of 1924. It follows that Congress could have as easily excluded illegal aliens from birthright citizenship in the Citizenship Act of 1934, the Nationality Act of 1940, or the Immigration and Nationality Act of 1952.

The Supreme Court itself suggested as much in Kim Wong Ark when it explained why the U.S., even in 1898, remained an anomaly in offering birthright citizenship. In the feudal era, Europe, too, offered citizenship based strictly on birthplace. That changed when legislatures modernized their citizenship laws. Nothing’s stopping Congress from doing the same – so they should.

Fortunately, there’s already a solution at hand. Republican Sens. Katie Britt (AL), Lindsay Graham (SC), and Ted Cruz (TX) have co-sponsored the Birthright Citizenship Act of 2025, which mirrors Trump’s executive order. President Trump should rally Republicans to pass it and gain a surefire victory instead of betting on the high court and risking cementing this relic of the 1860s forever.

Americans are tired of our broken immigration system rewarding mass immigration and illegal aliens and are demanding a historic and lasting solution. Voters gave Trump a mandate to end birthright citizenship. He did his part admirably. If successful, this will be one of his greatest legacies. Now it’s up to Congress to do its part in ensuring that mandate makes it over the finish line.

Jacob Grandstaff is an investigative researcher for Restoration News and the author of a recent groundbreaking report on America’s great tradition of mass deportations.