In an Executive Order dated January 20, 2025, President Donald Trump stated:
But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.” Consistent with this understanding, the Congress has further specified through legislation that “a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text.
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
In maintaining that tens of thousands of people born in the United States are not “subject to the jurisdiction thereof,” he is claiming that they are not subject to U.S. law. That amounts, in effect, to giving them diplomatic immunity in all but name. The reason is that if they are not subject to U.S. law, they cannot be arrested for breaking the law.
Consider some implications. One of the people he claims is not a citizen could murder someone and could not be arrested. The worst that could happen is that he could be sent to another country.
Or, less seriously, one of the people whom Trump claims is not a citizen could steal $1 million and send it to another country. The U.S. legal system would have no legal way to get the money back.
Consider the bitter irony. From the time Donald Trump declared his pursuit of the presidency, in 2015, he made illegal immigration a major issue. He has always maintained that a large percentage of immigrants were criminals. That was never true. But if Trump persists and, against all odds, gets courts to accept that these people are not subject to U.S. jurisdiction, he could easily create a criminal class. The criminals would be U.S. citizens by my standards and according to my and, more important, the Supreme Court’s current reading, of the U.S. Constitution. But not by Donald Trump’s standards.
Thanks to Phil Magness for helpful discussion.
Postscript: I just learned while writing this that Trump has pardoned Ross Ulbricht of Silk Road fame. Trump had promised to do that on his first day in office. So in a literal sense he broke his promise. But he did it on his second day in office. Ross Ulbricht was in prison from age 31 to age 40. One extra day of imprisonment is rounding error. Good for Trump!
January 22, 2025
https://www.hoover.org/research/trump-just-granted-diplomatic-immunity-thousands-people
January 23, 2025
hoover.org