‘“Subject to the Jurisdiction Thereof’: Birthright Citizenship and the Fourteenth Amendment, Part II”
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House Judiciary Subcommittee on Constitution and Limited Government U.S. House of Representatives
Follow its sittingsChip Roy
Contrary to the majority's holding, Justice Alito argued, quote, the 14th Amendment confers citizenship on only those children who at birth owe allegiance solely to the country. Justice Alito ended his dissent by asserting that the court's interpretation creates a strong incentive for individuals to enter or remain in the country illegally. He wrote, quote, the 14th Amendment does not include the rule that the court now imposes on the country, and this ruling will seriously affect the country's future. Joining Justice Alito on the majority's decision, Justice Thomas argued that there is clear distinction between recently emancipated slaves and foreign temporary visitors, and explains that foreign temporary visitors, quote, are attached to their home country, lack similar bonds to this country, and would not be called upon in time of war, end quote. Trump v. Barbara is our modern-day Roe versus Wade, a blatant misinterpretation of the Constitution with harmful policy outcomes.
To do nothing legislative would be an abject failure of the United States Congress.
It is up to Congress to define subject to the jurisdiction thereof, to put a stop to birth tourism, and to uphold the integrity of what it means to be an American citizen. The Supreme Court's ruling determining that the United States must be subject to unrelenting theft of our sovereignty and security at the hands of illegal aliens and other lawbreakers from across the globe, who use their United States-born children as anchors to remain in the country, leaving the American people to endure the consequences. Justice Thomas, Justice Alito, and the others that joined them made their decisions clear in Trump v. Barbara. It's time for the House of Representatives to make its voice heard and rectify this blatant policy absurdity. With that, I will now yield to the ranking member, my good friend from Pennsylvania.
Mary Gay Scanlon
Thank you, Mr. Chairman. It seems that my Republican colleagues believe that no matter how false or bizarre a claim, repeating it over and over again will somehow make it true. What else can explain the hearing that they've scheduled for today? As I explained last time the majority swung and missed on this topic, the text and legislative history of the 14th Amendment clearly establish that, aside from rare exceptions, a person's birth in the United States guarantees citizenship in the United States. To suggest otherwise is nothing more than a disingenuous attempt to rewrite our nation's history and the very words of the Constitution.
And you don't have to take my word for it. The Supreme Court resoundingly agreed just two and a half months ago in its decision on this issue in Trump v. Barbara. The 14th Amendment guarantees that all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States. That plain text is about as clear as the law can be. The Supreme Court and our Constitution only recognize two very narrow exceptions: for children of foreign diplomats and children of an occupying army's soldiers, situations where US law cannot be applied.
Simply tweeting that there is an invasion of immigrants is nothing more than a desperate and bigoted attempt to fabricate an end-run around birthright citizenship and doesn't meet either of those exceptions. The American children of undocumented immigrants and the American children of visa holders are persons born here in America. At the moment of their birth, they're subject to the same laws of the United States as me, or you, or the chairman here. With an undeniable constitutional claim to the rights, duties, and protections of that reciprocal relationship, in other words, citizenship. So why are Donald Trump and our Republican colleagues continuing to question the plain, long-settled meaning of the 14th Amendment?
Why are they peddling obviously unconstitutional proposals to end birthright citizenship even after the Supreme Court settled the matter once again? It's because Donald Trump and his Republican flunkies think they can profit at the polls if they strip away from an entire group of our American neighbors their rights, their votes, and their identities, and turn them into a permanent underclass. These Republicans want to pick and choose who is worthy of citizenship based solely upon who someone's parents are and where their parents are from. In our country, where the founders banned noble titles and declared that no man is guilty for his father's sins, there's nothing less American than that. In short, the people who want to end birthright citizenship are proposing to resurrect the infamous Dred Scott decision, which tried to make bloodline the mark of citizenship.
Thankfully, most Americans reject this bigoted view, one that is diametrically opposed to our nation's long-standing history and ideals. Patriotism requires us to resist the backsliding in injustice that the president and his allies are pushing. Our history, our quest for a more perfect union, has always been about opening up opportunity and civic participation, not ripping it away. Expanding our electorate has been an important part of that progress, enfranchisement, not disenfranchisement. We passed constitutional amendments that guarantee citizenship and access to the ballot box, no matter a person's race or sex.
In doing so, we've made our country and its government more representative, more fair, and slowly but surely, more perfect. That's a vision shared by patriotic Americans and rooted in fundamental American ideals. Any attempt to radically reinterpret the citizenship clause only serves the schemes of right-wing extremists and limits who can have a political voice in this country. Donald Trump's unconstitutional executive orders to end birthright citizenship, not to mention copycat legislation by our Republican colleagues, even after the court's Barbara decision, would drag us backwards. Their efforts would upend the promise of America and consecrate a government that's not for the people, but for some people.
It's been nearly 160 years since the 14th Amendment rebuked the Dred Scott decision and reestablished birthright citizenship as the law of our land. In that time, the US has been made better by Americans born here to immigrants regardless of their parents' birthplace or citizenship status. Countless prominent Americans are US-born children of immigrants, including the chairman of the Congressional Progressive Caucus, Congressman Greg Casar, the chairman of the House Freedom Caucus, Congressman Andy Harris, and for the region I represent, one of the greatest Eagles players of all time, Chuck "Concrete Charlie" Bednarik. If you're looking for prominent Americans who've benefited from birthright citizenship, you can look no further than senior officials in the Trump administration, like Marco Rubio or Nikki Haley, who were born to non-citizens and received their US citizenship at birth. Defending birthright citizenship is a moral as well as a constitutional imperative.
The US Conference of Catholic Bishops wrote in its Trump versus Barbara amicus brief that ending birthright citizenship denies the innate dignity and freedom of the person. The moral imperative, historical evidence, legal arguments, and US Constitution are apparently no obstacle to our Republican colleagues, however, as they persist in conjuring up all kinds of nonsense to justify limiting birthright citizenship. We've already heard some of our colleagues' hallucinations about birth tourism and anchor babies, the claim that nefarious expectant mothers enter the country on tourist visas just to give birth. Setting aside the fact that the Republicans' own witnesses cannot show actual proof that birth tourism happens on any meaningful or widespread basis, any congressional response certainly does not involve upending constitutional fundamentals about the meaning of American citizenship. In fact, birthright citizenship is about as American as apple pie.
Americans overwhelmingly back birthright citizenship, and extremists like Stephen Miller know they don't have the votes or the public support to pass a constitutional amendment to repeal it.
So instead they're trying to do an end run by obliterating more than a century and a half of legal analysis and forcing a tortured reading of the English language, which the Supreme Court just rejected again. Finally, let's be abundantly clear: the through line that links this attempt to end birthright citizenship and every cruel immigration policy propped up by this administration serves the same goal: turning our melting-pot democracy into a white nationalist ethnostate. And we will do everything in our power to fight that vision as a Congress, as a government, as a nation. We should not be in the business of turning back the clock and allowing our country to backslide into the most shameful parts of its past. Instead we should be passing laws that shepherd it towards a brighter future where the promise to form a more perfect union rings true for all rather than just a titled few.
Policies that bring us toward this vision of a more just, more fair America guided by all Americans are exactly what I and my Democratic colleagues will use this committee to fight for. And with that I yield back.
Chip Roy
Thank the ranking member. I now recognize the ranking member of the full committee, the gentleman from Maryland, Mr. Raskin.
Jamie Raskin
Thank you. Thank you kindly, Mr. Chairman, and thanks to all of our witnesses for joining us today. Well, the cupboard is now officially empty and the game is up. Having picked an illegal forever war with Iran and driven our national debt over forty trillion dollars, one quarter of which comes from this president alone, the Republicans are now officially barren of any new proposals or ideas to bring down the price of gasoline or diesel or groceries or housing or healthcare, or to control the spiraling corruption and lawlessness of the administration. As a result, our friends on the Judiciary Committee are like hamsters on a wheel, spinning in place with utterly spent and discredited ideas.
The summer is over, but every day we are treated now to twenty-four-seven summer reruns. Yesterday we held a sixth hearing on the GOP's defund-the-police sanctuary jurisdiction bill, a bill that already passed out of committee six months ago but is so toxic, futile, and counterproductive that even Speaker Johnson can't be convinced to bring it to the floor. But through the awesome power, I suppose, of magical thinking, our colleagues simply held another hearing as if they had not already passed the bill that the hearing was about. Today our colleagues wish away the Supreme Court's recent five-to-four decision in Trump versus Barbara, and so here in Never-Never Land we are once again debating the Fourteenth Amendment's guarantee of birthright citizenship, which even the Roberts Court could not disappear with its magic MAGA wand. In our Sisyphean effort to drag our friends back towards reality, let me recite the first sentence of the Fourteenth Amendment.
You know, some parts of the Constitution may be difficult and ambiguous, like due process or establishment of religion. But this sentence is perfectly clear: 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. This sentence overturned the Dred Scott decision and reflected our commitment to a republic in which the rights and privileges of citizenship are shared by everyone born or naturalized here, not just the people who fall within an officially sanctified racial or ethnic group. In 1898, thirty years after passage, the Supreme Court closed the door on the argument being advanced yet again by our colleagues in this outburst of constitutional amnesia and political nativism.
In 1898, the court held in Wong Kim Ark that the citizenship clause guaranteed the rights of all people born in the United States, including, yes, even the children of the reviled non-citizen Chinese immigrants. Despite the question of birthright citizenship being settled law for more than a century now, this lawless president tried to nullify that right by way of an imperious and totally unconstitutional executive order. In the aftermath, judges appointed by Presidents Ronald Reagan, George W. Bush, Barack Obama, and Joe Biden have repeatedly ruled that the order was unconstitutional and void. One of those judges, District Judge John Coughenour of the Western District of Washington State, a Ronald Reagan-appointed judge, did not mince words. He said, "Citizenship by birth is an unequivocal constitutional right."
"It is 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." Despite the court's 6-3 ruling on Trump's first unlawful executive order, the incorrigible nativist in the White House simply cannot take no for an answer. On August 6th, he issued two new executive orders in another attempt to refuse citizenship to people deemed unworthy.
One order restricts birthright citizenship for specific categories of people, including children born to adults with connections to foreign organizations or embassies, as well as anyone considered an alien enemy. It also restricts birthright citizenship to anyone whose parents are engaged in fraudulent activity to obtain citizenship. Stripping people of citizenship is a hallmark of authoritarianism. The Reich Citizenship Law, one of the Nazis' Nuremberg Laws, stripped German Jews of their citizenship and robbed them of full political and civil rights in 1935. Following Hitler's moves, Mussolini revoked the citizenship of tens of thousands of Italian Jews in order for them to leave the country within six months.
The Chilean dictator Augusto Pinochet famously claimed to have revoked the citizenship of Ambassador Orlando Letelier before ordering his assassination in Washington, D.C. Letelier responded, "I was born a Chilean, I am a Chilean, and I will die a Chilean." "They were born traitors, they live as traitors, and they will be known forever as fascist traitors." To this day, authoritarian countries purport to deprive people of citizenship to punish them for their speech or dissent. Stripping rightful Americans of birthright citizenship is not this administration's first descent into authoritarianism, alas.
The president and his extremists have built a masked paramilitary force in ICE and unleashed it along with CBP agents to harass, attack, arrest, and even kill American citizens simply for exercising their First Amendment rights to record and protest government actions. Without any legal justification, Trump's ICE soldiers shot down and killed in cold blood two American citizens, Rene Goud, a 37-year-old mother of three and poet, and Alex Pretti, a VA ICU nurse, who were peacefully observing and protesting the actions of immigration officers. Many others have died or been wounded in the administration's reign of terror against American communities. A young man protesting in California is now permanently blind in one eye thanks to federal officers hurling a projectile at him. An emergency room nurse in Oregon peacefully protesting government violence was hit in the face with a tear gas canister.
Homeland Security agents have repeatedly entered people's homes forcibly without judicial warrants and without consent to conduct arrests.
The home of a terrified US citizen, Scott Tao, in St. Paul. Agents refused to produce a warrant or look at the identification he scrambled to show them to prove that he was a citizen. They manhandled him, held him in his home at gunpoint, then hauled him from the house into subfreezing cold weather wrapped in a blanket wearing nothing but sandals and underwear. After realizing that they had entered the wrong home and that Mr. Tao was a US citizen with no criminal record, agents brought him back, checked his ID and left without apologizing for their humiliating and unconstitutional conduct. Mr. Chairman, immigrants and their American-born children are not poisoning the blood of our nation.
They are a vital part of our nation's political bloodstream. All of us in America today are the descendants of immigrants, lawful or unlawful or somewhere in between, except for Native Americans whose roots long predate the Republic and the descendants of enslaved Americans who were brought here involuntarily as part of the slave trade. We should not punish American children by stripping them of their citizenship, what Chief Justice Roberts called in his opinion in Barbara, the right to have rights, simply because of who their parents are. That is a desecration of our constitutional heritage. Remember always, said FDR, speaking to the Daughters of the American Revolution, that all of us are descended from immigrants and revolutionaries.
In 1798, at a time of anti-immigrant hysteria surrounding the Alien and Sedition Acts, Jefferson wrote a letter to his despondent friend, John Taylor, in which he counseled patience to survive a moment not unlike the one we see today. A little patience and the reign of witches shall pass over, their spells dissolve and the people recovering their true sight restore their government to its true principles. Thankfully, rereading the 14th Amendment itself, we constitutional textualists will continue to exercise a little patience until we can dissolve this spell and extinguish this nightmarish fantasy offered by the President, just as the Supreme Court emphasized only nine weeks ago. Thank you, Mr. Chairman, I yield back.
Chip Roy
Without objection, all other opening statements will be included in the record. We will now introduce today's witnesses. Ms. Rosemary Jenks. Ms. Jenks is the co-founder and policy director of the Immigration Accountability Project. She previously was the director of government relations for NumbersUSA and director of policy analysis at the Center for Immigration Studies.
I now recognize the gentleman from Kansas, Mr. Schmidt, to introduce his friend and Attorney General, Chris Kobach.
Derek Schmidt
Thank you, Mr. Chairman, appreciate the opportunity to introduce our state's Attorney General, my successor in that office, and we're grateful that he's here today. Some of you know General Kobach, but for purposes of this committee, you know he has a remarkable academic record, a graduate of Harvard, of Yale, of Oxford. He clerked on the 10th Circuit, was a professor of constitutional law for 15 years, was a White House fellow at that time, and was counsel to Attorney General John Ashcroft in the years not long after 9/11 when many of these issues were freshly presented for the first time in some time. As well as a lengthy career in public service, he was our state's Secretary of State and is now our 45th Attorney General. General, welcome here, we're glad you're here, and I believe the committee will find his views helpful and enlightening in its deliberations.
I yield back.
Chip Roy
I thank the gentleman, he is of course welcome to stay if he wishes to stay if anybody wants to yield time, and I appreciate his coming here and joining us. I would note that the Attorney General has brought his young daughter with him. What is her name?
Josie.
Chip Roy
Josie, welcome. Thanks for joining your dad. I've often had my kids sitting back behind me here on the dais, and they're much taller than they were when I started. I will now introduce Mr. Cuccinelli. Mr. Cuccinelli is a senior fellow for Homeland Security and Immigration at the Center for Renewing America.
He previously served as the Deputy Secretary of the Department of Homeland Security and the Director of United States Citizenship and Immigration Services. From 2010 to 2014, he served as the Attorney General of the Commonwealth of Virginia. Professor Jonathan Weinberg. Mr. Weinberg is a distinguished professor of law at Wayne State University Law School.
His work focuses on privacy, internet law, immigration and citizenship law, the First Amendment and administrative law. We thank our witnesses for appearing today and 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 the witnesses have answered in the affirmative, and you may be seated.
Please know your written testimony will be entered into the record in its entirety accordingly we ask you summarize your testimony in five minutes, and I will also note we're going to have votes called in an hour-ish, so if we can be relatively quick and we'll be pretty quick on our questions, hopefully we can wrap before we have to run to quest- run to vote, but we'll see how that plays out. Ms. Jenks, you may begin.
Rosemary Jenks
Chairman Roy, Ranking Member Scanlon, Ranking Member Raskin, and members of the subcommittee, thank you for the opportunity to testify before you regarding the 14th Amendment's citizenship clause and the role Congress must play in defining citizenship following the Supreme Court's erroneous decision in Trump v. Barbara. The Supreme Court's decision in Barbara overturned an executive order. It did not strip Congress of its constitutional plenary power over immigration and naturalization. In fact, I would argue that the ruling actually invites Congress to step into the breach that the court has created. And in fact, in response to some of the statements we've just heard, I want to point out that prior to 1966, the federal government required parental status information on passport applications.
It was a 1966 bureaucratic revision by the State Department, unaccompanied by any new legal or constitutional developments, that dropped the parental status question and began treating birthright as- birthplace as solely dispositive. So our modern application of this policy is the result of bureaucratic drift, not constitutional law. Congress should begin to address this problem first by codifying President Trump's border security policies by passing Chairman Roy's Permanent Trump Secure Border Act, which has already been approved by the Judiciary Committee. If illegal aliens cannot enter the United States, they cannot give birth here. Justice Kavanaugh in the Barbara decision explicitly noted in his separate opinion that Congress could amend the Immigration and Nationality Act to establish exceptions to birthright citizenship for children born to illegal aliens and temporary residents in the country.
Congress should pass Representative Brian Babin's Birthright Citizenship Act to do exactly that. Importantly, the Supreme Court's ruling in Barbara stated explicitly that automatic birthright citizenship is not universal. The majority relied heavily on the extraterritorial fiction to explain that Native Americans, diplomats and invaders were excluded from automatic birthright citizenship because they are not subject to the jurisdiction of the United States. There is a similar fiction in immigration law called the entry fiction. Under longstanding Supreme Court precedent, aliens who cross the border unlawfully or are paroled into the country are treated legally as if they are applying for admission to US territory, even though they are physically present on US soil.
Just as the children of diplomats are excluded from birthright citizenship because their parents are considered to be residing on foreign soil under the fiction of extraterritoriality, so too the children of unadmitted aliens should be excluded because they are considered to be residing outside the United States under the fiction of entry. The exclusion of these children from automatic birthright citizenship flows directly from the very territorial rule articulated by the Barbara majority. Congress should ensure that illegal aliens cannot obtain immigration benefits through their US-born children by enacting Representative Eli Crane's Nuclear Family Priority Act, as well as by making aliens who have resided in the United States illegally ineligible for LPR status and for the non-immigrant parent visa included in Congressman Crane's bill.
The Barbara in Trump v. Barbara is a Honduran national who was paroled into the United States under President Biden's unlawful parole program. She admitted in a supplemental declaration in the case that she wanted her child to receive US citizenship at birth so her family could take advantage of the welfare benefits that would be available. While current law makes illegal aliens ineligible for most non-emergency welfare benefits, illegal alien parents collect the benefits on behalf of their US-born children. Congress should amend current law to prohibit the payment of any welfare benefits directly to any individual who is not a US citizen or lawful permanent resident. Illegal aliens and non-immigrant visa holders should be required to designate a citizen or LPR to receive welfare benefits on behalf of any US-born child, and that individual should be required to use the benefits exclusively to provide for the US citizen child.
Congress should clarify in the law that children born in the United States to aliens employed by foreign embassies are not eligible for birthright citizenship but instead should be given the same visa status as their parents. Congress should also pass Representative Scott Perry's Preventing International Surrogacy Exploitation Act to void commercial surrogacy contracts between US citizens and foreign nationals seeking to buy birthright citizenship. American citizenship is a precious commodity. Our government must zealously protect US citizenship and ensure it is only granted to aliens we have legally invited to permanently join our American community. The Trump v. Barbara decision, while wrong on its face, presents an opportunity for Congress to do just that.
Thank you and I welcome your questions.
Chip Roy
Thank you, Ms. Jenks. I now recognize Attorney General Kobach for your five minutes. You may begin.
Chris Kobach
Thank you, Mr. Chairman. I present this testimony in part as one of the 25 attorneys general who filed an amicus brief in support of the government's position in Barbara and also as a former professor of constitutional law at UMKC where I served for 15 years. The, I'll just jump to the points of contention here. The majority opinion in Barbara effectively read out of the 14th Amendment two crucial phrases in the citizenship clause. All persons born or naturalized in the United States and subject to the jurisdiction thereof is one of the phrase, are citizens of the United States and of the state in which they wherein they reside.
Those phrases have to be given meaning and not be relegated to mere surplusage, and that is a common principle of constitutional interpretation. Any meaningful analysis of this case has to really begin with Justice Thomas's dissenting opinion, which at 91 pages is the second longest dissent ever written in the history of the Supreme Court, particularly long compared to the 26-page majority opinion. Now normally you would say length doesn't matter, and that would typically be true, but in this case it is not because Justice Thomas offered so many indicia of historical intent and original intent in the drafting Congress that went completely unrebutted by the majority. I'll get to that more detail in a minute. Justice Thomas's analysis of the citizenship clause rested on five things that every competent analysis has to rest on.
Number one, the text. Number two, the intentions of the drafters. Number three, in this case, the Civil Rights Act of 1866, which was drafted by the same Congress. Number four, the practices of the US legislative branch and executive branch immediately after ratification. And five, subsequent Supreme Court holdings.
Look at the text first. Justice Thomas explained you have to give meaning to "and subject to the jurisdiction thereof." The clear meaning at the time was domicile. Every drafter referred to domicile, which is of course a phrase, a term meaning permanent residence when defining that term. An additional textual clue is the one I just alluded to: "and of the state wherein they reside."
The domicile rule aligns the state citizenship with national citizenship, and that phrase "wherein they reside" modifies both citizenship clauses. So you can't be a US citizen unless you are also a citizen of a state. This is something Justice Story said in his commentaries way back in 1833. And so the word "reside" is read completely out of the clause as well. The majority opinion doesn't even mention that, doesn't even address that problem with their holding.
The second thing is the second indicia of intent are the statements of the framers. Senator Trumbull expressed it most concisely: "What do we mean by subject to the jurisdiction of the United States? Not owing allegiance to anybody else. That is what it means," end quote. The third indicia of original intent is what did Congress do right after it passed it? What did the executive branch do right after it became part of our Constitution? The best example of that is the Enforcement Act of 1870, which the act expressly excluded the children of temporary foreign visitors who are subject to the power of foreign countries from the benefits of the citizenship clause.
If the majority opinion were correct, then Congress in 1870 was violating the amendment it had just passed, just been ratified and just been passed by them three years earlier. The fourth thing that needs to be understood is the Civil Rights Act of 1866. The reason the 14th Amendment was drafted the way it was was to constitutionalize the Civil Rights Act. And that's why they're parallel in construction and in what they do. It was thought that if Democrats regained control of Congress, they would rescind the Civil Rights Act of 1866.
It was also suspected that a Supreme Court might hold that the Congress did not have the authority to pass the Civil Rights Act of 1866, so that's why they constitutionalized it, and that's why they used parallel language, especially in the citizenship provision. Representative Bingham, who was instrumental in both the Civil Rights Act of '66 and in the citizenship clause, explained that the act granted citizenship only to children "of parents not owing allegiance to any foreign sovereignty," end quote. And then fifth and finally, looking at Supreme Court decisions after the fact, the Thomas opinion looks at Slaughterhouse in 1873, Elk v. Wilkins in 1884, and Plessy v. Ferguson's dissent in 1896. Majority opinion all but ignores those. Instead, the majority opinion rests on this feudal notion that you are attached to the lord of the soil and ignores the normal hallmarks of determining original intent of a constitutional provision.
It is truly bizarre that they do so. I suggest that this decision may not stand the test of time. That's what Justice Thomas sent. It's a 5-4 decision. This one, because it is so weakly reasoned, is particularly vulnerable, and I encourage this Congress to do something akin to what President Trump did on August 6th, but in the form of a statute, and that is to pick a narrow category such as the beneficiaries of birth tourism and say that those individuals may not be benefiting from the citizenship clause.
Thank you.
Ken Cuccinelli
Thank you, General Kobach. Appreciate your testimony. Attorney General Cuccinelli, it's now your time. You have five minutes.
Chairman Roy and Ranking Member Scanlon, members of the subcommittee, thank you for having me today. I'll give you the bad news first and then what I think we ought to do about it. The bad news is, of course, that on June 30th, the Supreme Court struck down Executive Order 14160, and the court held that children born here to parents unlawfully or temporarily present are citizens at birth. You'll see it reported as 6 to 3 in many places, but as General Kobach just referenced on the constitutional holding, it was 5-4. Justice Kavanaugh concurred in the judgment on a statutory basis and did so, but did not join the opinion of the court.
And of course, a five-vote constitutional holding is binding, exactly as a unanimous one is. Until the court revisits it or the Constitution is amended, it is the law. And statutes directly contradicting that ruling that suggest someone who is a citizen at birth on the day it's enacted, that law is not going to survive very well. I suggest you build every bill in this fight with that in mind. There is work to be done, but I'd like to start with why the court was wrong.
The majority tells us the Reconstruction Congress meant to settle citizenship once and for all. This is the most extraordinary error of the case to me. They settled the question they had. The question we are talking about, primarily the status of the children of illegals, was not the question they had in 1866. There were no illegal aliens in 1866.
They didn't exist literally until 1882 was the first time the United States excluded anyone from the United States. Prior to that, if you landed on American shores, you were legally present. Didn't mean you automatically became a citizen, but you were legally present in the United States. And so given that that didn't exist, those drafters couldn't address the question. There was no such question.
There was no excludable class. The Fourteenth Amendment drafters didn't weigh unlawful presence and decide against us. There was no such problem to weigh. The distinction this entire debate turns on could not have been drawn by anyone alive in 1868 because Congress had not yet created the two categories to draw it between. At Ellis Island, of 12 million arrivals, roughly 2% were turned away.
98 of every 100 walked through lawfully. Not very many people here illegally. They were turned back and they were sent home at the point of arrival. So there was no large illegal population even during that very substantial period of immigration in the United States. Today, the unauthorized population is far into the millions, approximately 5% of everyone living in the country, depending on which estimates you believe, with the fastest addition ever under President Joe Biden's open borders policies.
A rule written when presence and permission were legally identical is now applied to millions of people for whom presence and permission are plainly not identical. The court got there not because the framers directed it, but because a categorical rule appeared to have been easier than the question in front of them. So what should Congress do? Well, three things. First, and I've heard discussion of it, shut down the birth tourism industry.
Your authority over visas, admission, fraud, and commercial brokerage is uncontested. A statute reaching the marketing and the financing of travel arranged to obtain a citizenship raises no citizenship clause at all. And while others may discount the frequency of this occurring, that doesn't suggest they disagree with the fact that if it occurred, they would oppose it. That's encouraging. And I would press hardest here precisely because it doesn't depend on getting a justice to change his or her mind and, frankly, I haven't heard even from the other side that they oppose shutting down that industry.
Second, if you want to test the constitutional question, do it deliberately. You heard of Justice Thomas's dissent, very thorough.
Justice Gorsuch also drew a line. He'd sustain restriction as to genuinely temporary visitors, but doubts it as to families who have made their permanent home here, as he referenced it, touching on the domicile issue. Draft to that line and not past it, add expedited review, and you get legitimate constitutional review to flesh out the boundaries. Third, oversight, not appropriation riders. The agency directives issued in August carry a September 5 deadline, watch them closely.
The warning is this: Section 5 of the 14th Amendment won't work. You need to work other ways to solve this problem, including an amendment to the Constitution. Thank you, Mr. Chairman.
Chip Roy
I thank you, Attorney General Cuccinelli. Professor Weinberg, the time is yours.
Speaker 11
Chairman Roy, Ranking Member Scanlon, distinguished members of the subcommittee. Thank you for your invitation to testify here. Birthright citizenship is a matter of surpassing importance. You all know that in the case of Trump v. Barbara, the Supreme Court held the Constitution guarantees US citizenship to every person born in this country, subject only to a few tiny exceptions with minimal relevance to the modern world. I could take my five minutes today to explain why that decision was correct as a matter of constitutional law, which it was.
But I don't think that would address any live issue before the subcommittee. The court has issued its decision. Folks in debating societies can debate whether they agree with the ruling, if that's how they like to spend their time. Law professors do that a lot. But for lawyers and lawmakers, the law has been decided.
So instead of explaining why the Supreme Court's decision was correct as a matter of constitutional law, I want to take my five minutes to tell you why it was correct as a matter of this country's long-established understanding of what American citizenship is about. Ronald Reagan once described this country as a city upon a hill, one where, if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here. In this city, all who are born here are welcome. In America, we don't say that one person is a citizen and another is not based on their parents' race or status or attributes. Citizenship rules that allocate citizenship to one group of people, denying them to another based on who their parents are, that's how they do things in Europe and Asia.
Rules like that foreground race, ethnicity, purity of blood. But it's not how we do it here. Our strength, now and throughout our history, has derived from our embrace of everyone who's migrated to our shores. So we don't have a citizenship regime that's based on who your parents were. We're all in this together.
That birthright citizenship rule has been the source of the most powerful tool for assimilation and loyalty that the world has ever known. Twenty-five members of Congress, last I checked, could say they were born in this country to two immigrant parents. Adult US children of immigrants, beneficiaries of our birthright citizenship rule, they have a stronger belief in the power of hard work, they're more likely to believe that this country is a place where people can get ahead if they're willing to work hard, stronger than the rest of us. So in that sense, they're more American than the rest of us. If you want to know how not to do it, look at European countries like France.
Over there, you know, we see large populations of people who, you know, in part because they didn't get birthright citizenship, never came to identify with the country they were born and are living in. Rest of the country sees them as strangers. That's a recipe for trouble. But we don't do it that way here. If you are born here, you are ours.
You see yourself as an American. Others see you as an American.
We don't have a hereditary class of non-citizens and we shouldn't want one. Framers of the 14th Amendment insisted on this rule because they had lived through Dred Scott. They knew well what happened when somebody decided that the government could deny citizenship to people who were entitled to it because they were born here. Framers enacted the 14th Amendment to remove citizenship from political control. Now there was a Senator Cowan back in 1866.
Now he urged that the 14th Amendment was a mistake. He said it would tie government officials' hands if they later decided that hey, you know, maybe people born in this country whose parents immigrated from China, maybe they shouldn't be citizens. But the American people rejected that. They adopted a constitutional rule that everyone subject to the jurisdiction of the federal government is a citizen. They saw that rule, in the word of Michigan Senator Howard, as both natural law and national law, and they denied politicians the power to muck with it.
So our birthright citizenship rule is a simple rule, it's a fixed rule. Supreme Court has said those temporarily in office, those temporarily in office have no power to limit it so as to deprive another group of their citizenship. That's what the framers told us, that's what the Supreme Court told us in Trump v. Barbara, it's the right way to go.
Chip Roy
Thank you Professor Weinberg, we will now proceed under the five-minute rule with questions. I now recognize the gentleman from North Carolina, Mr. Harris.
Mark Harris
Thank you Mr. Chairman, and thank you to all of you on the panel and our chairman kudos. This is one of the most distinguished panels we've had of witnesses, your experience and your expertise certainly speaks well. A topic that makes this conversation on birthright citizenship so timely is birth tourism. And this of course has been mentioned several times already today and occurs when foreign-born women come to the United States on tourist visas to give birth so that their child becomes a U.S. citizen. Ms. Jinks, you have worked on immigration policy for decades and we've seen President Trump recently take action with two executive orders aimed at ending birthright citizenship and continuing to protect the meaning and value of American citizenship.
Can you tell me what impact will the birthright executive order have on the birth tourism industry?
Rosemary Jenks
Well obviously a lot of it depends on how it's actually enforced, but I know that USCIS is looking at the ways that they can enforce it and the State Department is looking at better vetting of aliens before they can enter the United States. I am skeptical to be perfectly frank that we as a nation have the will to pregnancy check women coming into the United States. I just don't see that happening. You know, I think there will be complications there. But certainly you can go after the businesses in the United States, that is something that should be easy to do, although they apparently tend to plead the fifth when they're called before Congress to talk about their business.
But so there are enforcement ways to get around the issue of are you going to be able to stop pregnant women from coming into the country. You can certainly make it clear that it's a criminal offense to come into the country in order to give birth. But you can also reform the immigration laws and that's kind of what my focus is, reform the immigration laws so that you're not giving any benefits to people who abuse our laws by giving birth here, so they don't get welfare payments paid to them, only the U.S. citizen child gets them.
Um, you know, there are various ways to do this, potentially a residency requirement so that if the parent takes the child home with them and the child has never lived in the United States except the day they were born, maybe they can lose their citizenship.
Mark Harris
Let me let me ask you as a follow up, how sophisticated have birth tourism businesses become in helping foreign nationals obtain visas, enter the country, and give birth here?
Rosemary Jenks
Frankly, I don't think they've had to become very sophisticated because it's been so easy. Um, you know, the the industry has grown obviously it's huge now, it's multi-billion dollars, but I don't think anyone has really been thinking or talking about it until fairly recently, so they didn't really have to try to do much, but I mean they have pretty elaborate setups, uh with, you know, the uh accommodations for the people coming in and they get them the visas and then they have a period after the birth where they get them the documents so they have everything they need before they take the babies home. Um, so there are a lot of ways to interrupt that cycle that we should be pursuing.
Mark Harris
Thank you. Mr. Cuccinelli, I I want to focus for just a moment in my last minute on the practical impact of birthright citizenship on our immigration system and particularly the incentives it may create. Based on your DHS and USCIS experience, what challenges does birthright citizenship create for immigration enforcement?
Ken Cuccinelli
Well, Ms. Jencks mentioned a number of the practical challenges of vetting uh for this problem in light of the Supreme Court's decision that are not going to go away anytime soon and you're not likely to see another administration with the kind of political will to confront an issue like this that we have right now, ever again. Uh, and that practical reality needs to be kept in the forefront of Congress's mind as you legislate in this area because that vetting is very difficult. So I would agree with Ms. Jencks' testimony about targeting the commercial aspect of this where Congress has tremendous legal authority already to deal with those businesses that are as she noted facilitating illegal activity, uh because at least the parents coming into the country are lying on applications to come in otherwise they would be excluded if they told the truth, uh under current rules of entry. So, uh that's a legal hook that is readily available to you all and it should be used.
Thank you. Mr. Chairman, I yield back.
Chip Roy
I thank the gentleman from North Carolina and now recognize uh the gentleman from Maryland the ranking member Mr. Raskin.
Jamie Raskin
Thank you very much, Mr. Chairman. Um, what what would the practical consequences be, Professor Weinberg, uh for individual Americans and the country as a whole, uh if President Trump had succeeded in having the Supreme Court ratify his executive order which has been struck down as unconstitutional?
Speaker 11
Got to learn to manipulate the technology. One of the things that's notable about President Trump's executive order is that the executive order said it was going to apply only prospectively. It was only going to apply to people born in the future. But you know, either the president, you know, either folks in this room who support that view are right about the Constitution or they're wrong. I believe they're wrong, but if they're right, it's not just people born in the future who would be rendered non-citizens, it's also everybody living now, it's also their parent our parents and our grandparents who are potentially not citizens because if President Trump is right, those people never were citizens of the United States.
So we'd all have to look around and find out whether we're citizens or not, trace our lineage back and see if our parents or our grandparents, you know, could pass the test set by President Trump's executive order. So the answer is it would be chaos. It would be chaos just prospectively, but it would be in particular chaos, you know, because of what it would mean for us going back. I mean, the President said he wouldn't apply his rule to people except prospectively. But that just means, you know, he'd be illegally allowing people to vote, um, who under his own theory weren't even citizens of the US.
Jamie Raskin
Um, Ms. Jenks, um, do you favor pregnancy checks for all non-citizen women coming into American airports? It sounded like you favored it, but you weren't sure whether other people had the stomach to do it, and I just wanted to see what your position was.
Rosemary Jenks
Well, my position is that it is a privilege, not a right, to come into the United States, so we obviously have the right to do whatever vetting we want to do.
Speaker 13
But do you support that policy? Is that a policy, just you raised it, it never occurred to me before.
Rosemary Jenks
It, it's actually been proposed quite a number of times, not by me, because I don't think it's feasible. I'm not opposed to it, though, I just don't think it's feasible.
Jamie Raskin
Okay. Um, let's see. Uh, Professor Weinberg, there are other provisions in the Constitution, like the prohibition on bills of attainder, taints of blood, the granting of titles of nobility, that embody the ideal that a person's status cannot be defined by the state through their parentage. And after all, we're a country that was conceived in a revolution against monarchy and the idea of hereditary succession. Um, would you agree that birthright citizenship guaranteed by the 14th Amendment is not just a policy choice, but a reflection of American values that we don't have different classes and castes that are passed down from one generation to the next?
Speaker 12
I think that's absolutely right. Um, one of the, part of the debates during the Civil War over citizenship, the question was, do we want oligarchy or do we want democracy? And the answer we gave was that we wanted democracy. We don't want people's status to be determined by blood, rather, we're all equal, we're all citizens, that's the choice the framers made.
Jamie Raskin
Yeah. Um, the vast majority of the arguments I heard from your distinguished co-panelists were really against the Supreme Court's decision, arguing, uh, why Chief Justice Roberts and the majority got it wrong. Um, can you see any utility in our keeping this political dialogue going? I mean, is there something that we could actually get out of this, or, I mean, is it essentially just a question of, you know, sour grapes at this point that people don't like the way that the court ruled?
Speaker 11
Well, I mean, the court ruled. It's, it's easy for me to say that because, you know, the court was right. And if you're committed to the belief that the court was wrong, you might want to sort of claw at that. I have cats and they go, and they at things they don't like. But no, the Supreme Court has ruled.
I think it, the committee would do well, you know, as, you know, one of my co-panelists just said, to accept that the court has ruled and move on, consider what its options are in the light of the court's ruling, not relitigate it.
Jamie Raskin
Well, it does seem like that we go through these periodic outbursts of nativism and anti-immigrant feeling. We seem to forget that almost everybody here is descended from an immigrant, if they're not Native American or if their families weren't brought over involuntarily as slaves. Um, but there does seem to be these periodic, um, pushes to negate birthright citizenship and, uh, anyway, I appreciate what you've had to say about the values of the country.
I yield back.
Chip Roy
I thank the gentleman from Maryland. I'll now recognize the gentleman from California, my friend Mr. McClintock.
Tom McClintock
Thank you, Mr. Chairman. Well, you can put me down as one who believes that the Supreme Court was dead wrong in its decision. But it does have the legitimate authority to be dead wrong under our Constitution. And I think we have to respect that. After all, we're not socialist Democrats on this side of the dais.
We don't question the legitimacy of the Supreme Court or threaten to upend its membership when we don't agree with its decisions. And it's not clear to me what Congress can do in the presence of the Supreme Court's decision. I think Mr. Cuccinelli made that point fairly clearly. And their decision might have been wrongly reasoned, but it was definitively stated. Given that, it seems to me the only clear path is a constitutional amendment, which for some very good reasons is a very heavy lift.
The other clear path is to wait until circumstances have changed and attempt to get the court to reconsider. But as I read Barber, the court held that "subject to the jurisdiction thereof" applies to anyone born in the United States and that anyone born in the United States is a citizen. They explicitly rejected any exception. So anything we pass in contradiction to this ruling is obviously unconstitutional. And again, let me be crystal clear.
I fervently disagree with the decision. I fervently agree with Justice Thomas's brilliant dissent. I agree with all of the arguments we've just heard in opposition to the decision. But that's irrelevant. I'm not sitting on the Supreme Court.
I'm for all of the stringent entrance restrictions and strongest enforcement of immigration law, but I don't see how a law barring pregnant women entering the country could be enforceable as either a practical or a privacy matter. I don't see how any visa restrictions on birth tourism would work in the presence of Barber. A foreign national can be here illegally, they can violate all of their visa restrictions, but under Barber, that doesn't seem to matter. So, Mr. Cuccinelli, what am I missing?
Ken Cuccinelli
You're not missing anything there, Congressman. You know, we've talked a lot about where you can work, which is the birth tourism commercial side. And it is true that a simple question about pregnancy knowingly and falsely answered makes that person a criminal in the United States, a felon actually.
But it doesn't make any difference.
Speaker 15
So the child's born in the United States, the mother leaves with the child the next day, they're out of the jurisdiction, but under Barber, that child is a US citizen.
Ken Cuccinelli
And you noted the "subject to the jurisdiction thereof" language. And I would agree with Attorney General Kobach's initial assessment of that, that the majority opinion effectively turns that language into surplusage. It makes it irrelevant, which is a constitutionally inappropriate way to interpret a constitutional provision. And yet they have, and they are the Supreme Court, not the almost Supreme Court. So we are stuck with this.
Tom McClintock
And as I said, I agree with all of the arguments that have just been made in opposition to that decision, but that doesn't matter. It's their decision to make. So the question that I still haven't heard clearly answered is, short of a constitutional amendment or a Supreme Court reconsideration, what legislative path is actually open to us?
Speaker 14
So there are, we've talked about birth tourism. There are other, I'll characterize them as narrow...
Ken Cuccinelli
But birth tourism doesn't work in the presence of that decision, in my view.
Well, no, you can reduce that industry very severely through legislation and regulation. The fact that you have businesses all over the world, not just in the United States, facilitating that whole process is something that on the US side you can go a long way to shutting down under law, and you can beef up the law in that respect by what you pass here.
That is not a hopeless undertaking. It is not a useless undertaking. And it's also targeting people who are being particularly abusive of the benefit of American citizenship. I mean, they are leveraging it for their own advantage in a way that even the vast majority of illegals who come into our country illegally are not, because they do want to be here for rather more complete reasons than the folks who are fraudulently taking advantage of the birth tourism opportunity to obtain citizenship for their children.
Speaker 17
But under Barbara, it doesn't matter if they're fraudulently entering the country. Yeah, that's the problem. So anyway, I'd be all ears on any suggestions you have, but I am fearful that our paths are fairly limited.
Pramila Jayapal
Thank the gentleman from California, and I recognize the gentlelady from Washington, Ms. Jayapal.
Thank you, Mr. Chairman. And I appreciate that my colleague across the aisle who just spoke is at least, even if he disagrees with the Supreme Court decision, recognizing that this is somewhat of a waste of time to continue to relitigate this. It is essential to our country for all the reasons that Professor Weinberg has talked about. Birthright citizenship was established through the 14th Amendment over 150 years ago. It's been very clear from the very beginning.
And any efforts to not recognize such citizenship is blatantly unconstitutional. When our subcommittee first held a hearing on this last year, we heard over and over again why the history and the language of the amendment guaranteed birthright citizenship. This past June, the Supreme Court agreed with that analysis and struck it down. Trump's executive order attempting to, but here we are again, because Trump's executive order attempting to eliminate birthright citizenship is continuing in different forms. Not because the law changed, not because the court left the door open, but because Donald Trump refuses to accept no for an answer.
Trump's response to the court's clear decision wasn't to comply with it, but rather to sign two more executive orders dressed up in new language, chasing the same unlawful goal. So, Professor Feinberg, one of Trump's new executive orders strips citizenship away from children of parents who are branded, quote, "alien enemies," defined to include members of a foreign terrorist organization or FTO. What are the origins of that term, and how broadly does it apply, and how has this president weaponized the idea of, quote, "alien enemies" to advance his deportation agenda?
Turn on your mic, sir. Thank you.
Speaker 11
Excuse me. Thanks so much. Just a few things about that executive order. It says you're not a citizen if you have a parent who was an alien enemy, defined to include any member of a Secretary of State designated FTO or any of the thousands of people who are subject to economic sanctions because of the Iranian Office of Foreign Assets Control specially designated nationals list. Now, for starters, not everybody on that list is an enemy of the US.
Trump administration has put four judges of the International Criminal Court on the specially designated nationals list, so I guess if they had children in the US, they wouldn't be citizens.
Also worth noticing that the word enemies, that the term enemy includes people on these lists, the EO says. It doesn't, the EO doesn't say it's limited to people on those lists. So presumably it could include anyone the Trump administration thinks is an enemy. And we know this administration has a really broad view of who its enemies are.
Pramila Jayapal
And so why does this exception as practiced by the Trump administration violate the Supreme Court's decision in Barbara?
Speaker 11
In Trump v. Barbara, the court said that you're not born within the jurisdiction of the US if the place you're born has militarily been taken over by a hostile occupying power, so that the US government literally has no power of it. But that doesn't mean, as the EO would have it, that someone who's born in a hospital in Denver or Philadelphia isn't born within the jurisdiction of the United States just because his daddy is, you know, a member of Hamas. That's ludicrous. You know, that's not what the court explained that the term means.
Pramila Jayapal
The executive order also, you mentioned this, strips citizenship from children of green card holders, other lawfully present non-citizens who happen to work for a foreign body or an international, foreign government or international body. How broadly does that category apply, and does that also violate the Supreme Court's decision?
Speaker 11
Yeah, according to the EO, if you're born within the US to non-citizen parents, but one of your parents, say, works as a janitor in a foreign embassy, or one of your parents is an employee of an international organization like, you know, the International Pacific Halibut Commission or the Great Lakes Fishery Commission, oh, I mean, you're not a citizen. And there's the same problem there. I mean, the children of ambassadors are an exception to birthright citizenship because the children of ambassadors have diplomatic immunity. The children of embassy janitors do not have diplomatic immunity, so they don't fall within the exception that Trump v. Barbara offers.
Speaker 21
And so is Trump's new executive order just as unconstitutional as his initial executive order?
Speaker 20
It is even more plainly unconstitutional because it comes after Trump v. Barbara already told us what the law was.
Speaker 18
Remarkable that we're here with just so few legislative days left in the session and here we are doing this again. Thank you.
Harriet Hageman
I thank the gentlelady from Washington. I now recognize the gentlelady from Wyoming, Ms. Hageman.
Thank you. And I'd like to begin by stating that I also strongly disagree with the United States Supreme Court's majority interpretation of the 14th Amendment's citizenship clause. There is simply no way that the framers of the 14th Amendment intended birthright citizenship to operate as it does today, and we know the amendment was intended to establish citizenship for those who already had a meaningful connection and allegiance to the United States, namely enslaved people. The court's egregious and incorrect interpretation has had significant consequences for our immigration system and in turn for those who follow our laws and go through the legal process to earn the privilege of American citizenship. In fact, I very much appreciate the fact that Professor Weinberg just admitted that the Supreme Court's decision would cover the children of members of the terrorist organization Hamas, and that alone should be sufficient for the folks on the other side of the aisle to want to work with us to fix this horrific mistake from the United States Supreme Court.
While there are many arguments that can be made... with respect, with respect, I think you may have... actually you did say that, Professor Weinberg. Professor Weinberg, I didn't ask you any question.
You made that comment a moment ago that a child of Hamas would be covered by the Supreme Court decision. You stated that.
Yes, exactly. That's right.
Harriet Hageman
Yes, you did. So there are many arguments that can be made against the court's misinterpretation of birthright citizenship, but today I want to focus on one specific issue that is enabled by the current interpretation as well as our nation's lax surrogacy laws, and that is international surrogacy. International surrogacy allows foreign nationals to essentially rent the wombs of American women to obtain US citizenship for their children, and perhaps eventually for themselves. This unfairly affects American women, children born through these arrangements, and our national security, as some reports indicate that over 40 percent of those who use international surrogacy are Chinese nationals. This is an issue that has been occurring across the US for years, with studies showing that the practice has increased each year since 2014.
While it has been concentrated primarily in states such as California, Illinois, and New York, I have even heard reports of it occurring in my home state of Wyoming. A Wall Street Journal investigation revealed that one wealthy Chinese man has fathered over 100 American-born children through surrogacy. Another Chinese man reportedly used American models as egg donors to have 10 daughters with the intention of one day marrying them off to powerful men. In another case, an American surrogate was reportedly left caring for babies for months after their intended Chinese father was unable to obtain a US visa, and the father eventually sent agents to the surrogate's home to collect the children as if they were commodities. Mr. Cuccinelli, what benefit, if any, does the United States derive from international surrogacy?
Ken Cuccinelli
None, and it exposes our both our country security-wise and the individuals involved in to extreme exploitation.
Harriet Hageman
To what extent do other countries permit international surrogacy and under what conditions?
Ken Cuccinelli
I'm not aware that there has been much regulation of this industry anywhere in the world at this point, but it is the United States where people all around the world would like to go and be and live. That's part of why our citizenship is so valuable. It's a cycle. We've made it so as a country over 250 years, and so we're the target of those landing places.
Harriet Hageman
Well, the Trump administration has taken steps to address the use of birthright citizenship in connection with international surrogacy, and again, everyone on the other side of the aisle should support those efforts, including you, Professor Weinberg. You apparently don't seem to think that that's very serious. I do. I think that it is exploitation of the women and I think it's incredibly dangerous. I have encouraged the administration to go further by addressing the incentives that allow this practice to continue, including considering whether visas should be restricted for foreign nationals who come to the US specifically to obtain a child through surrogacy and whether American surrogacy agencies should face accountability for facilitating these arrangements.
Attorney General Kobach, could Congress restrict or deny visas to foreign nationals who come to the US for the specific purpose of participating in an international surrogacy arrangement?
Yeah, absolutely, that's within Congress's authority. In fact, it's already arguably within the authority of the executive branch to do that under existing laws too, but which are more generally worded, but certainly a specifically worded law would be well within the constitutional authority of the government.
Chris Kobach
In cases where the intended parents are unable to enter the US, we have heard reports of third parties being sent to collect children on their behalf, again in Wyoming. How could Congress ensure that individuals cannot circumvent visa restrictions by using third parties or other intermediaries to take custody of children born through these arrangements?
It could be done. It would be much harder to enforce, obviously, because you're then looking at multiple people involved in it. But if it were established, yeah, a law could certainly prohibit it. And enforcement authorities could potentially find some of the cases, but it would be it would be difficult.
Harriet Hageman
I'm out of time, but I do have several items for unanimous consent to insert into the record. The International Gestational Surrogacy in the United States, 2014 to 2020, from the National Institute of Health, dated April 1st, 2025. The Chinese billionaires having dozens of US-born babies via surrogate, The Wall Street Journal, December 13th, 2025. A Florida surrogate, a father in China, and the babies caught between, Wall Street Journal, July 31st, 2026. And a letter from myself to the President of the United States, dated August 20th, 2026, trying to address this international surrogacy situation that we're dealing with.
Without objection.
Thank you.
Speaker 27
Thank the gentlelady from Wyoming, and I now recognize the gentlelady from Vermont.
Becca Balint
Thank you, Mr. Chair, and I thank the witnesses for their time. So I was fortunate enough to spend August back in Vermont with my constituents, and I heard a lot about the war in Iran. I heard a lot about the outrageous trade war with Canada. I heard about Vermonters losing their healthcare. I heard from people who can't find housing, do not know how they're going to make ends meet right now in this terrible economy.
So you can imagine my disappointment and frustration when I see that our very first hearing back is on a topic that has no connection to the lives of Vermonters right now. And this is the second time this Congress, that this subcommittee has spent time on birthright citizenship. A year and a half ago, we sat right here, and my Republican colleagues argued that the Supreme Court should overturn a core principle of our nation, that people born in this country are citizens. They urged the court to overturn a century of law based on a wild theory. That didn't happen, and yet here we are again.
So for the record, Mr. Weinberg, Professor, thank you for being here. Did the Supreme Court uphold birthright citizenship in Trump v. Barbora?
Thank you.
Becca Balint
Republicans pushed their wild theory, the Supreme Court has spoken, the court confirmed what any law student can tell you. The 14th Amendment guarantees citizenship to the people born in this country. Asked and answered, black letter law remains black letter law. So why are we here? Why are we having this hearing?
We are here because conservative legal activists are playing the long game. That's what this is about. This is about history. Now, I'm a former history teacher, and it's about a historical pattern that they're trying to establish. It's a deliberate, bad faith strategy and effort to strip people of their citizenship and expel Americans from this country.
Extremist conservatives have worked for decades to mainstream this idea. The Supreme Court said no, and yet they are still grasping. It was a lawyer named John Eastman, yes, that same John Eastman who was disbarred for his part in the January 6th insurrection, who first proposed this legal theory back in 2004. So I ask you, Professor Weinberg, what was your reaction when you first heard that the Constitution actually does not guarantee citizenship to people born on US soil?
Speaker 11
I'll say that it's not the first time. Because if you look at US history from 1789 through the enactment of the 14th Amendment, through till the 1880s, with the single exception of the citizenship of black people, there was never any doubt about the basic birthright citizenship rule upheld in Wong Kim Ark and Trump v. Barbora. It was entirely accepted.
What changed in the 1880s was that there was a new political movement, you know, with its legal hangers-on, that tried to find a way to deny citizenship to the Chinese. And you see one of the briefs in Wong Kim Ark on behalf of the government says, gee, you know, if a Chinese person can become a citizen, then surely in that case American citizenship is not worth having. So repeatedly in this country, we've seen the argument that the birthright should we've seen arguments to try and displace the birthright citizenship rule when groups have found it expedient to try and deny citizenship to some disfavored group. You know, that's what we saw at the civil in the 1880s, I think that's what we're seeing again.
Becca Balint
I mean, that's that's exactly what we're trying to get at today. This is really about who gets to define who a citizen is over and over again. And we've talked about it in this committee on this side of the aisle, it is about narrowing the view of who is a legitimate citizen of this nation. As you said, it is tied to nativism, it's tied to extremism. And I want to go back to where I started.
This is not what we are hearing from from voters back home. Open your ears, what they're saying is we can't afford to live right now, we don't have healthcare, we don't have housing, we want to get ourselves out of this war in Iran. This is now settled, the Supreme Court has settled this. Can we please get back to doing the work of the people in this committee? And before I yield back, Mr. Chair, I have unanimous consent.
I ask unanimous consent to enter into the record an article written for the Atlantic on August 3rd, 2026, entitled "How the Right Could Actually End Birthright Citizenship."
Chip Roy
Without objection. Now the chair's going to recognize myself for five minutes. Quick question here to just level set. As a matter of policy, as a matter of what is good for the United States, should corporations be able to profit by bringing people to the United States to have babies and then they return to their home countries? Ms. Jenks, yes or no?
Mr. Kobach, yes or no?
Mr. Cuccinelli, yes or no?
Mr. Weinberg, yes or no?
Speaker 11
If you want to prohibit that, be my guest, just don't mess with the citizenship laws.
Chip Roy
Okay, well we'll come to that. But I just want to know whether we agree with that premise. Number two, take aside the profit motive. Should an individual from around the world be able to come here pregnant, come across the Rio Grande in Texas or fly to Miami or New York or LA or anywhere else and have a child, have that child become a citizen and then leave immediately? Ms. Jenks, yes or no?
Mr. Kobach, yes or no?
Mr. Cuccinelli, yes or no?
Mr. Weinberg, yes or no?
Speaker 12
Attempts to prohibit that would cause more problems than the than the benefits that would accrue.
Chip Roy
No, no, so yes or no? So you're a yes then. You think someone should be able to do that.
I think a law against that would be bad.
Chip Roy
Okay, so the answer is yes. You think people should be able to come here pregnant, have a child, become a citizen and then be able to leave and go home to their home country. And I think this is a really important philosophical point that we need to recognize and the differentiation here in the witnesses. Then there's the question of policy, we are a policymaking body, the United States Congress. There's the question of law, which we've been discussing here pre-Supreme Court ruling and post-Supreme Court ruling.
Mr. Kobach, you testified earlier and and when you when you first started your opening statement, and I believe you have stated, and I agree, that Justice Kavanaugh, obviously, you know, in terms of how we look at the majority and the numbers, I'll talk about that in a minute going forward, Justice Kavanaugh raised the point about congressional action versus say executive order, that Congress could act, that Congress could set certain definitions, certain set limits. Am I interpreting that correct and can you expound on that briefly?
Chris Kobach
Yes. And that's why I think, in opposition to Professor Weinberg's point, it would not be unconstitutional out of the gate for Congress to act in this area. The Supreme Court did not issue, the Supreme Court simply ruled that this particular wide, broad executive order that the president first issued was unconstitutional. The Supreme Court did not hold that all narrower, all imaginable statutes on the question are also unconstitutional out of the gate, which is why a narrow statute focused on birth tourism would absolutely be something that the court might reach a different result on. If it were a statute, I think you gain Justice Kavanaugh.
I think also the Supreme Court didn't even address the examples that Justice Thomas gave of, there wasn't birth tourism back in the 1800s, but he gave an example of a Mary Deveraux, an Irish immigrant who came to the United States and gave birth the next day. And the administration of President Harrison, in the immediate wake of the 14th Amendment, said, no, birthright citizenship does not attach there. So if you present that historical evidence to the narrow question, I think you very likely may get a different Supreme Court outcome on a narrow statute.
Yes, I do.
Chip Roy
And Mr. Weinberg, I'm going to put you down as a no on agreement with that. But I'll give you a second.
Chip Roy
Right. Okay. So, I think the point here is Congress can act, okay? And that Congress can act, and of course we can act. We can act in the face of a Supreme Court ruling, and then the court can uphold it or strike it down.
That happens all the time, by the way. And when the court makes some sort of a ruling, we then react as a Congress, as a body, as the people in Article I. So my question here, with my minute remaining, is did we not pass laws in the wake of Roe versus Wade that put constraints around abortion, whether it was federal funding and whether it was limiting time and scope of abortion? Ms. Jenks, yes or no?
Mr. Kobach, yes or no?
Mr. Cuccinelli, yes or no?
Absolutely.
Speaker 32
Mr. Weinberg, yes or no? Right or wrong, policy good or bad, did we not constrain?
Speaker 33
If you want to pass unconstitutional laws, I think you're wasting my money as a taxpayer, so I would implore you to try and stick to laws that are constitutional.
Chip Roy
Did Congress not act, Mr. Weinberg, to pass constraints after Roe versus Wade? They did. And that's just factually true. That's not a debatable topic. They did.
And here's the point. The point is that, hold on, it's my time, Mr. Weinberg. It's my time, Mr. Weinberg. Mr. Weinberg, that's, it's my time. It is a beyond disputable fact that Congress did, because the body, the people spoke, and they said it was abhorrent.
And here the people are saying very clearly, the people I represent in the state of Texas are very clearly saying they don't think there ought to be baby factories to try to claim American citizenship, and that the court can't create that out of thin air, which it did. So Congress can act, Congress can take a step, and a future court can be put to the test on that legislation. I now would recognize Ms. Lee.
Summer Lee
Thank you, Mr. Chair. Every day in this committee, to which I'm new in, we find ourselves in the strangest timeline. And honestly, I don't know why we're here today, because the Constitution is remarkably clear on birthright citizenship. I guess we can probably also say that about the Congress, and I would also say just the topics that come up every day are discouraging and disappointing. It's been clear since it was ratified in 1868.
Republicans are just making up ambiguity to justify their bigotry.
This country has a history of demonizing people it doesn't like. We had to enshrine citizenship to people born in the United States because the Dred Scott decision would have continued to allow the US to deny citizenship to black people like me. Trump and Republicans are now trying to deny that birthright citizenship to immigrants. And while the children of immigrants of course haven't been subjected to chattel enslavement, these are kids who have only ever known this country, have only ever lived here. America is all they know.
Are these people, some of whom are children of course, supposed to just be sent back to places that they've never been and they have no connections to just because Republicans believe that they're not the right type of person to be an American citizen? The 14th Amendment was passed post-chattel enslavement and in the wake of the Dred Scott decision, right? The birthright citizenship clause in the amendment was meant to get rid of what was essentially a caste system imposed on the descendants of chattel enslavement. It's not just a title of citizen as we view it now, but it also means being fully recognized as a person in this country and all the rights and responsibilities that entails. Professor Weinberg, was birthright citizenship already assumed to be the law of the land for white people since the founding of this country?
It was.
Why is that?
Speaker 11
Birthright citizenship was the law of the land for English people before we got here. We came to the US and it was universally assumed and held and written that that law of the land for white people was the law of the land, white people in England was the law of the land for white people in the US. It was even the law of the land for black people in some northern states, in North Carolina for a while, until as slavery got more and more entrenched, the courts in the southern states said, no, wait, wait, wait, we can't do that. We can't really have free black people be citizens. And we went down the road that led to Dred Scott.
Summer Lee
I must say that brings me right next to my next question. Without the birthright citizenship clause under Dred Scott, the Dred Scott ruling, could our country have a permanent legal subclass?
Absolutely.
Speaker 26
So why were the drafters so broad with the wording? Was there a concern that they, when they drafted this amendment, that politicians could try to roll back the citizenship of black people or others in this country?
Speaker 11
I think absolutely. I mean, the famous quote from Senator Howard that Mr. Cuccinelli already mentioned is that the framers of the 14th Amendment meant to resolve this issue. They meant to take citizenship rules away from politicians and have them enshrined in the Constitution that no, except for the exceptions in the English common law, one of which is not relevant here, we're all citizens and politicians can't mess with that.
Speaker 23
So would the framers be shocked by this hearing and the executive orders from Trump?
Speaker 22
The framers would be shocked by a lot of things if they were alive today, but yes, I think this would be one of them.
Summer Lee
The framers of the clause were right to be worried, as you say, about the rolling back. In the case of Wong Kim Ark, which reaffirmed the 14th Amendment just 30 years later, the Solicitor General argued in his brief that the passage of all three reconstruction amendments was a quote, blot on our constitutional history, unquote. This former Confederate officer felt that these amendments, which also emancipated the enslaved and granted black men voting rights, were forced upon the ten southern states. Wong Kim Ark wasn't just about a challenge to the citizenship of children of Chinese immigrants, but also a challenge to the legacy of the reconstruction era when we finally ended the cruelty and the inhumanity of chattel enslavement. Every time birthright citizenship is challenged, the goal seems to be to get this country back to when it was only white people who were guaranteed the right to call themselves a US citizen.
Birthright citizenship shouldn't be subject to the whims of politicians. When Trump tried to end birthright citizenship with his executive order, he was deciding who is worthy of that right and who is not, when he himself is the child of an immigrant. Unfortunately, that fight isn't over. Just after the Supreme Court ruling, Trump issued two new executive orders to chip away at birthright citizenship. Republicans are also trying to go after it by offering constitutional amendments and bills which would restrict it.
My Republican colleagues, nearly all of whom are descendants of immigrants themselves, are not more deserving of citizenship than people who got here a bit later than them or who are a bit browner than them. Birthright citizenship doesn't depend on your skin color or your religion or your wealth or who your parents are. The 14th Amendment is clear: if you are born here, you are one of us. Thank you, and I yield back.
Chip Roy
Thanks, the gentlelady. I'll now recognize the chairman of the full committee, Mr. Jordan.
Jim Jordan
Thank you, Mr. Chairman. I actually want to shift a little bit. Professor earlier said that, you know, good people come to the country because, you know, who wouldn't want to come to America? Best country ever, and they come, and it's good people want to come here, work hard, chase down their dreams, achieve their dreams and goals by through through working hard. I I agree with that.
But there's also some bad people coming to the country. Um, and I think, uh, when you have the situation we had under the previous administration where there was no border and 10 million people came in the country in four years, we know a bunch of them were bad people coming for the wrong reasons. We know that because there's a bunch of them who wound up on the terrorist watch list. And I would argue one of the things that attracts bad people to come to the country is when you have that open border, but even worse is when you have sanctuary jurisdiction. That becomes a magnet for people to say, oh, I can just walk into the best country ever with whatever motives and intentions I have, and there are 18 cities, 11 states, three big counties like Fairfax County next door, and the District of Columbia where I got sanctuary.
Would you agree that that is a reasons that some bad people, I'll go to the to the law enforcement folks here, Mr. uh, the attorney generals, Mr. Cuccinelli, Mr. Kobach, would you agree that's a that's probably an attraction for some bad people to come to this country?
Ken Cuccinelli
Absolutely, and we absolutely know that they respond to the incentives in place.
Yeah, Mr. Kobach, would you agree with that?
Chris Kobach
Yeah, absolutely. We we see that many of them are well-informed, many of the people who entered the United States under the prior administration were well-informed as to which jurisdictions were sanctuary jurisdictions, where they would least likely be arrested, and and if they were caught speeding, it wouldn't matter because even that officer would have no authority.
Speaker 36
And it's my it's my belief, my contention, and just tell me if you agree with me, that this is a systematic plan of the left. Open up the border, let in 10 million people. That was that was intentional, that was deliberate. We know that, it happened, we all saw it with our own eyes. Create sanctuary jurisdictions which makes it difficult to remove those individuals even when they commit another crime.
And then they also said, and you know what, we won't pay the guys who do the removing. We won't fund ICE. In fact, they shut down the government twice in one Congress for that reason. So I believe it's a systematic plan that the left has. Would you agree with that?
Ken Cuccinelli
So last month, the Trump administration was reported to have detained the largest number in the administration, and it still hasn't crossed 50,000. I don't think the Biden administration ever had a month that got anywhere near 50,000 only crossing the border illegally, and they were welcome to stay because of the catch and release. So this is a one-way ratchet.
Chris Kobach
I don't know how systematic it is, but I agree that many people think that lax or no enforcement should be the rule for for political reasons. And I think I let me just say one thing. I think it was in 2006, the late Representative Barney Frank said this in a speech to a labor organization, that that's why we need an amnesty, that's why we need to have less enforcement of our laws, is to change the political composition of the country.
Jim Jordan
Yeah, let me ask you this. Is is sanctuary jurisdiction maybe one of the dumbest things you've ever... I mean, think about it. Sanctuary jurisdiction is the politicians tell local law enforcement, don't work with federal law enforcement when it comes to enforcing federal law. I actually think that's one of the dumbest dumbest ideas ever. But that's exactly what's going in almost a third of the country because these cities are big blue cities, big blue states.
It's almost a third of the country lives in a jurisdiction where that... and here the implications, here the not implications, the results, the consequences. You have people like Stephanie Minter next door in Fairfax County where Descano lets out a guy who'd been arrested 40 times, illegal migrant, lets him out. There's even an email from law enforcement saying, this guy's going to do bad things, and sure enough he did. He killed Stephanie Minter. That's the consequences.
So this is the dumbest thing I've ever heard, and yet these guys all defend it. They all defend it. They say, no, no, we got to do this.
Speaker 38
Makes no sense to me. Attorney General Kobach, would you agree that's the dumbest idea ever?
Chris Kobach
It is a horrible idea, and the—having these jurisdictions, and you mentioned one case, but the total number of cases is well over 100 now of people who have been murdered and were in the possession—or rather were in the custody temporarily of law enforcement in sanctuary jurisdictions and then were let go. And so the list just keeps on growing and growing. The sanctuary jurisdictions also are an affront to the supremacy clause of the Constitution. Federal law must be supreme.
Jim Jordan
Yeah. Finally, I would say this, and you know—we all know—here's how we know this is dumb. Because county—we had one yesterday testify—county sheriffs are actually suing their own state. And I asked the sheriff yesterday from Maryland, "Why are you suing your own state?" He said, "Because I am elected to protect the citizens in my county."
And it's not just happened in Maryland. We've got sheriffs up in New York are doing the same thing. My guess is in most of these sanctuary jurisdictions, you've got law enforcement people who want to do the same thing. Some are already doing it. That's how stupid this policy is.
And yet this is a fundamental principle of today's left, which unfortunately now controls the Democrat Party. With that, I yield back.
I thank the chairman, and I'll recognize the ranking member for her questions.
Mary Gay Scanlon
Thank you, Mr. Chairman. You know, there's just—how many times can we say the same thing? The Supreme Court ruled. Professor Weinberg, the witness to your left, Mr. Cuccinelli, wrote in his testimony, quote, "Barbara is binding, it will remain binding." He went on to say, "Congress can legislate against conduct it may lawfully reach," and again, "What it cannot do is legislate the holding away."
Do you agree with Mr. Cuccinelli's statement?
I do.
Speaker 37
Love that. Yes or no, is Trump versus Barbara the ultimate law of the land?
It is.
Mary Gay Scanlon
And yes or no, in Trump versus Barbara, did the Supreme Court uphold birthright citizenship?
It did.
Mary Gay Scanlon
And yes or no, has the Supreme Court ever struck down birthright citizenship?
It has not.
Mary Gay Scanlon
You know, Mr. Chairman, I have a neighbor from Texas and he said that it's a famous saying there that when the horse is dead, it's time to dismount. I would urge our colleagues on this committee to dismount because this is just increasingly nuts. Mr. Raskin, is there anything you wanted to say?
Jamie Raskin
Thank you, Ms. Scanlon. I was looking forward to the comments of our distinguished chairman, Mr. Jordan, because the author of the first sentence of section one of the 14th Amendment is his predecessor in the Ohio congressional delegation, John Bingham. And I thought he would say some words about the brilliance of Mr. Bingham for adding birthright citizenship permanently to our Constitution. But instead, we were treated to another discursion on the evils of the sanctuary jurisdictions. I think that would make our six and a half hearing on that, but I'm still puzzled as to why after passing the legislation supposedly addressing the evils of the sanctuary jurisdiction, it hasn't come to the floor yet.
So I'm still waiting for an answer on that. But in passing, Chairman Jordan also said, "Who doesn't want to come to America?" Well, I'll tell you who doesn't want to come to America right now.
Canadians don't want to come to America. They're boycotting America because of Donald Trump's moronic, imbecilic trade war and his consistent attacks on the people of Canada, his threat to turn Canada into a 51st state. And if you bother to talk to anybody who lives in the northern tier of the country, the boundary waters of Minnesota or the Upper Peninsula of Michigan or the Adirondacks in New York, the small businesses are being killed by Donald Trump's ignorant trade war and illegal tariffs against the people of Canada. So yeah, it's we're not so popular anymore. I get lobbied all the time by people from the hotel industry, the hospitality industry, the tourism industry saying Donald Trump and MAGA are killing us in the eyes of the world.
People don't want to come visit us anymore. I'm certain that the gentlelady from Vermont would concur with this. But I want to come back, Ms. Scanlon, to a question for you, which is it seems to me there's a lot of misogyny in these policies being advanced by the Republicans. For some women, they want to deny them the right to an abortion in Texas. And for other women, they want to deny them the right to have babies in Texas.
How about we allow women to make decisions about their own bodies?
Mary Gay Scanlon
Sounds like a novel idea to me. I mean, I do want to come back to the problem of bigotry in this birthright citizenship discussion. I mean, just in December of this past year, the president was in Pennsylvania and he was talking about the African and the Middle Eastern and the Southern Hemisphere countries that he's banned travel from, 19 different countries because he's called them hellhole and other descriptive adjectives. But he invited people from Norway, Sweden, and Denmark to send immigrants. I mean, this underlying threat of bigotry that is just infusing the immigration enforcement we're seeing, the racial profiling we're seeing from ICE operatives across the country, these efforts to end birthright citizenship, I think it's all immoral and un-American and needs to be called out for what it is.
With that, I think we've spent more than enough time on this subject for more than enough hearings, so I will yield back.
Chip Roy
I think the ranking member now recognize the gentleman from Wisconsin, Mr. Grothman.
Glenn Grothman
First of all, I'd like to thank Mr. Kobach from being here for years. I've read Ann Coulter columns in which she refers to you glowing and never had a chance to meet you. So that's going to be a cool thing. The next thing I want to point out, want to clear up something a little earlier. John Adams, after our our Constitution was ratified, he referred to our country as a republic if you can keep it.
In the Pledge of Allegiance, they also refer to her as a republic. And I think just about every homeschooler in the 6th Congressional District in Wisconsin would refer to our form of government as a republic. I had to check what occupation the gentleman at the end here had that he got his age with he thought we had a democracy. And of course he's a law professor. They can't prevent you from practicing a religion.
They can't shut down a newspaper. They can't take your property without just compensation. A variety of things which makes us a republic, not a democracy, because in a democracy or a representative democracy, if you had a majority of people, a majority of congressmen say we want to shut down this religion or we want to do this or that, they would get away with it because it's democracy. I always think the I always think it's interesting that countries like East Germany or the Congo or North Korea all have democracy in their name. And I think that's because they would probably say, well, we had a phony election here and a majority of people, you know, voted for us, so we're we're a democracy and we're wonderful.
But we have a republic here, which is going to restrict the out-of-control people. Now, Mr. Kobach, in light of that decision, does Congress have a role in defining who is a US citizen?
Chris Kobach
Absolutely. Congress retains its power under Article 1 to provide for the rules of naturalization in the United States, and Congress absolutely retains its authority over immigration. And, you know, it's important to recognize something I said earlier, and I want to reiterate it now. All the Supreme Court did was say that this broad executive order, which was pretty sweeping, this one is unconstitutional. But there are lots of things that Congress can do that are not as broad, that can continue to press some of the same constitutional questions that may be seen as constitutional under the existing Supreme Court.
And I would also add that everybody agrees at this table, and presumably in this room, that the citizenship clause of the 14th Amendment was meant to overturn, reverse Dred Scott and to ensure the citizenship of the newly freed slaves. But there was, and there was abundant discussion about that in Congress when the drafting occurred. But there was no discussion of an effort to put shackles on Congress in its ability to regulate immigration and to regulate naturalization. And so the notion that this massive block was placed in front of Congress forever, or until it was amended again, is nonsensical because there's no congressional indication that that was the intent. And all of the congressional intent, including from the great Representative Bingham, suggested that they were saying individuals have to have, the parents have to have no allegiance to any foreign power in order for the children to be US citizens.
That was what Congress was saying over and over again.
Speaker 24
Are you aware of any other countries that have laws as liberal as the majority of the court on that day seemed to feel?
Glenn Grothman
Canada is similar, but beyond that, this puts us as an outlier in the world. The vast majority of the world looks at the citizenship of the parentage and then has various rules for determining whether you are a citizen. And by the way, people who come into the United States illegally or temporarily and then have a child, that child has citizenship in the country where the parents came from. So this notion that people are displaced and left without citizenship or a country is nonsense.
Chris Kobach
Okay, so for example, if somebody comes here from France and has a child, France would not say that child is not French.
Correct. Indeed, they would insist that the child is French.
Right, and just about every other country of the world would think that way. Okay, what would be just what the first laws you'd introduce if you were in Congress to try to bring things back to the international norm?
Glenn Grothman
Well, I did mention this earlier. I think a statute along the lines of President Trump's executive order dealing with birth tourism would be one that would almost certainly get the vote of Justice Kavanaugh. And I think it would also gain the vote of either the Chief Justice or possibly Justice Coney Barrett. A narrower one looking at this because, again, the historical record of Congress and the executive branch for 40 years after the 14th Amendment was passed was that they clearly thought that people who came to the United States and then had a child immediately, that child did not gain the benefit of birthright citizenship.
Chip Roy
Thank you. And I'll also follow up. I haven't read it myself, but I'm told that American troops during World War II were always given an explanation of how we are a republic and what that means. So we've slid since.
I thank the gentleman from Wisconsin. I want to thank the witnesses, each and every one of you, for being here today. Without objection, all members will have five legislative days to submit additional written questions for the witnesses or additional materials for the record. And without objection, this hearing is adjourned.