A birthright citizenship fix is more important than the SAVE Act

The Supreme Court just heard arguments in a case (Trump v. Barbara) to determine whether we are a sovereign nation or whether any invaders can trespass in our nation and unilaterally assert jurisdiction to grab citizenship for their children.

Shockingly, there is no legal scholar alive who believes we have five votes against the maniacal theory that the 14th Amendment codifies anchor-baby citizenship of illegal aliens.

To eliminate the ability of the people to even debate the future membership of their society will spell the end of our country as a sovereign entity.

Rather than submitting to the Supreme Court, Trump must stake his presidency on the notion that Congress, not SCOTUS, has the final say on citizenship, and every fiber of his messaging and political capital should be expended toward shaming Republicans into passing a clarification of the law.

President Trump has already shown that he is willing to focus his attention singularly on one issue with his push for the SAVE Act. However, to the extent that we can’t walk and chew gum at the same time, fixing the debasement of citizenship itself is exponentially more important than preventing noncitizens from voting.

Although voting by noncitizens does unfortunately occur, it is relatively small compared to those who are given citizenship and vote legally when they should be disqualified.

According to the Center for Immigration Studies, there were 225,000 to 250,000 births to illegal immigrants just in 2023. That is close to 7% of all births in the country and could account for several million new citizens over a decade. In addition, the CIS estimates that roughly 500,000 kids were born to temporary visa-holders over the past decade. Thus, fake citizens voting “legally” is a much graver concern than noncitizen voting.

This loophole is a sovereignty and security problem. The Chinese espionage machine exploits this loophole to bring in pregnant women, drop a baby, and grab citizenship on behalf of an enemy nation. Would we allow invading armies to bring their wives along for the ride and obtain citizenship too?

Whenever I challenge some friends to make broader immigration reform more important than the SAVE Act, which the right has chosen as its final hill to die on, the retort I get is that SAVE has simplicity of messaging. However, nothing beats the message that illegal invaders should not be able to come here against the national will and steal citizenship from the nation.

An immigration reform bill to stop granting citizenship to those here illegally and those born to temporary visa-holders should be coupled with a bill to ensure that illegal aliens are not counted in the Census. Some estimates project that counting noncitizens in the Census has shifted 17 House seats.

This is a much more consequential form of voter fraud. And unlike voter registration, it’s fully under federal control. I’m all for the SAVE Act, but let’s be honest: Blue states will not enforce it in the long run, especially under a Democrat president.

So what should the president do? He must preemptively build the case that even to the extent one agrees with the Wong Kim Ark decision on birthright citizenship, it can only apply to those domiciled here on a permanent basis, not illegal aliens or temporary visitors. And to the extent that there is a dispute, it is up to Congress, not SCOTUS, to decide.

It’s important to remember that the 14th Amendment itself, under Section 5, grants Congress the power to enforce the provisions of the amendment. To interpret it in a superfluous fashion that would void an entire enumerated power is absurd in light of the power of Congress to interpret the amendment itself.

Certainly, in any case of ambiguity, we must err on the side of caution not to strip the consent to citizenship away from the society and its representatives.

Congress clearly has the authority to interpret the scope of jurisdiction any given class of immigrants have and can pass laws clarifying in which instances their children are entitled to citizenship. After all, Article 1, Section 8 of the Constitution grants Congress plenary power over naturalizations.

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Kendall Warner/The Virginian-Pilot/Tribune News Service/Getty Images

Unless there would be no way to read the plain language of the 14th Amendment other than a mandate based upon territorial jurisdiction instead of political jurisdiction (before 1898, nobody read it this way), it is simply imprudent to interpret it in the most stringent way. Doing so would have the effect of almost completely voiding an enumerated power of the people’s representatives.

If Congress is powerless to prevent people from coming here and stealing citizenship, that would mean Congress does not control the power over naturalization.

The operative paragraph of the Ark opinion establishing birthright citizenship for children born to immigrant parents qualifies that they “are entitled to the protection of, and owe allegiance to, the United States,” but only “so long as they are permitted by the United States to reside here.” If they are not permitted to reside here, which is the subject addressed in Trump’s birthright order, then all bets are off.

We will always have social disagreements on immigration as a matter of policy, but to eliminate the ability of the people to even debate the future membership of their society will spell the end of our country as a sovereign entity. To create an affirmative right to immigrate and remain in the country against the national will represents that most profound usurpation of a nation’s sovereignty.

During the debate over the 14th Amendment in 1866, Rep. James F. Wilson (R-Iowa) emphasized that the amendment was “establishing no new right, declaring no new principle.” He reiterated, “It is not the object of this bill to establish new rights, but to protect and enforce those which belong to every citizen.” How tragic for us to now create the ultimate novel right for foreigners that strips the sovereignty from every citizen.