The birthright citizen case before the US Supreme Court today, could well be one of the most precedential cases the Supremes consider this year, among many that will prove to be significant for years to come. “Precedential”, as in setting precedence for years to come; not “presidential”, as in relating to the president – though it certainly is that also.
While many people may thank that the issue in this case is birthright citizenship, it is actually isn’t. At. least, not yet. Birthright citizenship is the underlying and ultimate issue to be decided, but the issue before the Supreme Court at the moment is a procedural and jurisdictional one, and the determination of this issue will either allow President Trump free reign (for the time being) to barrel down the aggressive course he has set for deportations (and other things), or it will reign him in and block his ability to move at the pace and in the way he has planned.
The case comes up to the high court on procedural grounds. The substance of the case is not yet at issue. That will await the complete litigation process before a decision is made. The only issue before the Court, now, is whether a federal trial court has jurisdiction to issue a nationwide injunction.
The ultimate issue in the case, birthright citizenship, of course, is a poignant constitutional matter that will have far reaching effect. A decision in favor of the Trump interpretation of the law will dramatically change law as it has been interpreted and applied Since 1898. The substantive issue involves the meaning of the language in the 14th Amendment that establishes birthright citizenship. (See The Birthright Citizenship Case Exposes a Constitutional Crisis Unfolding for detail on the right to birthright citizenship embedded into the 14th Amendment.) The Trump Administration has directly challenged the well established precedent over the last 125+ years, but a determination of that seminal issue must wait.
The procedural posture of this case is the entry of a nationwide preliminary injunction by a federal trial court. This isn’t the first case of its kind. Many trial courts, both federal and state, have issued similar far-reaching orders imposing injunctions at the front end of a case, halting the action challenged, while the litigation plods forward to a long-awaited conclusion.
The 300 lb. gorilla in this case is the jurisdiction of the trial court. Trial courts have limited jurisdiction in our American system if jurisprudence, but the court purported to issue an injunction applicable throughout the entire nation. The high stakes that ride on this decision are evident, but we need to review the design and structure of the nation’s court system to understand why this is an issue.
The US District Court for the Southern District of Texas has now weighed in on the Trump Administration’s invocation of the Alien Enemies Act of 1798, declaring that Tren de Aragua, is a “designated Foreign Terrorist Organization[,] . . . perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” With so much speculation and so many assumptions being made, I want to cut through the BS and get to the truth. Before summarizing the opinion, though, a little background is in order.
The Alien Enemies Act of 1798 is a federal law that grants the president “wartime authority” to detain or deport non-U.S. citizens of enemy countries. It was enacted in 1798 as part of a series of laws known as the Alien and Sedition Acts, aimed at addressing national security concerns during a period of tension with France. The Act can be invoked during a declared war, a perpetrated, attempted, or threatened invasion, or a “predatory incursion” against U.S. territory. Those terms are key to understanding the scope of the Act of a President’s authority to invoke it.
In summary, the Act allows the President to target citizens of a hostile nation or government who are not US citizens in a time of war for detention or deportation, and the this law permits these actions to be taken without a court hearing, based solely on citizenship or country of origin of the targeted persons.
Legal scholars question whether a law that targets people based on the citizenship or country of origin would withstand a constitutional challenge. My understanding is (not having reviewed the relevant caselaw) that the Act has not been challenged in court on constitutional grounds, and the present case involving Venezuelan immigrants does not include a constitutional challenge. Therefore, the constitutionality of the Act has not been addressed.
The Act has been invoked only three times in U.S. history: during the War of 1812, World War I, and World War II. This law was the authority cited for the detentions, expulsions, and restrictions targeting German, Austro-Hungarian, Japanese, and Italian immigrants based on ancestry during WWII, and it was the justification alleged for Japanese internment.
The Act is a war power. It is triggered by 1) a congressional declaration of war; 2) a presidential determination of threatened or actual invasion; or 3) a presidential determination of threatened or actual “predatory incursion”. Only Congress can declare war, but the President has the authority to repel sudden attacks (invasions or “predatory incursions”).
Obviously, the ability of a President to invoke the Act without an act Congress requires an invasion or “predatory incursion”. Congressional intent can be gleaned from the way those terms were used in the late 1700’s. According to the Brennan Center for Justice,
“In the Constitution and other late-1700s statutes, the term invasion is used literally, typically to refer to large-scale attacks. The term predatory incursion is also used literally in writings of that period to refer to slightly smaller attacks like the 1781 Raid on Richmond led by American defector Benedict Arnold.”
Recent groups have encouraged a non-literal interpretation of the terms to address illegal immigration and trafficking “based on a migrant ‘invasion’ or ‘predatory incursion’ perpetrated by a cartel alleged to be acting as a de facto foreign government.” That creative reading of the law, however, “is at odds with centuries of legislative, presidential, and judicial practice, all of which confirm that the Alien Enemies Act is a wartime authority. (See The Alien Enemies Act, Explained)
The Act has only ever been used in the context of war declared by Congress. President Truman’s invocation of the Act to detain prisoners as late as 1951 was allowed with deference on the presidential determination of when a war terminates (WWII), but the Act has never been used in the history of the nation outside of a declared war.
The Brennan Center for Justice, a progressive non-profit think tank, notes that Fifth Amendment protections apply against discrimination on the basis of race, ethnicity, nationality, etc. For these reasons, they say, courts and presidents have apologized for the Japanese interment during WWII, and scholars have generally held that the Japanese interment was mistaken, if not blatantly unconstitutional. Other legal issues undermine the validity of the law as well. (See The Alien Enemies Act, Explained)
With that background and explanation of the Alien Enemies Act of 1798. Let’s turn to the opinion that was handed down On May 1, 2025. The opinion is authored by a conservative judge (who happens to be an Evangelical Christian) appointed by President Trump. It recounts the history of the Act with detail and technical fluidity that I will try to explain by focusing on the key language. For the legal nerds among us, you can read the 36-page opinion yourself. (See J.A.V. et al., v. Donald Trump, Civil Action No. 1:25-CV-072 (So. Dist. TX)(5-1-2-25))
I don’t often play the lawyer in my blog. The blog is about faith and a journey toward truth. Despite my own inclinations to avoid politics, I find myself sucked into what is going on because of the unprecedented nature of the changes that have occurred so quickly since Donald Trump took office. As a result, I am reading more articles on the daily political drama that is currently unfolding than I normally would.
In some ways, Donald Trump is simply expanding executive authority as previous presidents have done (especially recent ones), though he is expanding it further and faster than it was done before. The expansion of executive authority is nothing new, but he is pushing the envelope more quicky and more expansively than ever before.
In other ways, Trump is going where no previous presidents have dared to go. He is blurring the lines of his executive authority and constitutional constraints in ways and with a boldness we have not previosuly witnessed.
The Executive Branch of government has no constitutional authority to make law. A president only has power to carry out the law established by Congress (with certain defined exceptions). Executive actions that go beyond or are contrary to the laws established by Congress and the few constitutional grants of power can be questioned in the courts.
Donald Trump’s order to end birthright citizenship is an example of his executive actions over the last two months. The Supreme Court recently agreed to take up the cases filed in several states in which injunctions were issued against that birthright order. I get weary of the moral and political fray, so I am going to take a step back today and do a little analysis of the mechanics of what is going on.
Birthright citizenship is in the US Constitution. It wasn’t always there. It was introduced in the 14th Amendment that was ratified after the Civil War, and it provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof” are citizens.
I should point out that the 14th Amendment was a dramatic change to the laws of our country. It changed the very foundation of our law – the Constitution. It was done through the mechanisms embedded in the Constitution, though. It wasn’t a maverick move by one man in power; it was done by the constitutional amendment process that requires passage by two-thirds of both houses or a constitutional convention called by two-thirds of the states, and it must be ratified (approved) by three-fourths of the state legislatures.
This is an onerous process, but it is meant to be difficult. The fear of the founders of our country was that one small segment of power or one man could change everything – as in the European monarchies from which the settlers of our country came. They built into the fabric of our governing structure a separation of powers, a federal government and many state governments, and processes that create a system of checks and balances – like the process to amend our Constitution. These things were done to mitigate against the fear of sudden change that might destabilize the democratic republic.
The 14th Amendment was passed in 1868. It took about three years after the end of the Civil War to get it passed, and that was moving through the process quickly. The bedrock of the 14th Amendment is at issue in the cases that are currently being taken up, now, by the US Supreme Court. The opening lines are as follows:
“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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
14th Amendment, Section 1
Citizenship to all people born in the United Stated is the foundation of the 14th Amendment. From this foundation, the Amendment grants due process and equal protection, which are arguably the most significant protections that Americans enjoy.
The application and scope of the 14th Amendment was challenged 30 years later in a case that made its way up to the US Supreme Court from the 9th Circuit in California. (See United States v. Wong Kim Ark, 169 U.S. 649 (1898)) At issue was a 21-year-old Chinese man who was born to Chinese citizens who lived in San Francisco when he was born in 1873.
The Chinese Exclusion Acts passed in 1882, prohibiting Chinese laborers from entering the US, making Chinese immigrants ineligible for citizenship. It also required Chinese people who left the country to obtain citizenship before re-entering the country.
Wong Kim Ark parents returned to China with him in 1890 when he was 17. He retuned briefly in 1894, and returned to the US again – the country of his birth – in 1895. Upon returning a second time, he was detained under The Chinese Exclusion Acts. The prosecutors in this case argued as follows:
“Wong Kim Ark has been at all times, by reason of his race, language, color and dress, a Chinese person, and now is, and for some time past has been, a laborer by occupation.
“Wong Kim Ark is not entitled to land in the United States, or to be or remain therein, because he does not belong to any of the privileged classes enumerated in any of the acts of Congress, known as the Chinese Exclusion Acts, which would exempt him from the class or classes which are especially excluded from the United States by the provisions of the said acts.”
(As an aside, this language would never fly today. It is racially charged language and discriminates against people solely based on race, ethnicity, and national origin. The law itself targeted one nationality, ethnicity, and race of people. Immigration laws would continue to target people by nationality, ethnicity, and race until the early 1960’s. The wheels of justice, indeed, turn slowly, but we are better than that now, right?)
The issue in the Wong Kim Ark case focused on the 14th Amendment. The prosecutors focused on the qualifying statement in italics: “persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.” They argued that Wong Kim Ark was never “under the laws of the United States”, because his parents were “Chinese persons and subjects of the Emperor of China”, and Wong Kim Ark was “also a Chinese person and a subject of the Emperor of China.”
In effect, they argued that Wong Kim Ark was not subject to the jurisdiction of the United States because his parents were subjects (citizens) of China. One might ask why they detained him if he wasn’t subject to the jurisdiction of the US, but I digress.
After tracing the history of English common law, Napoleonic law, and even Roman law on citizenship, the Court focused on what Congress intended by the 14th Amendment in light of the Civil Rights Act that they passed in 1866, just two years earlier. The Civil Rights Act made persons citizens who are “born in the United States, and not subject to any foreign power.” (Subject to foreign power meant a a diplomat or person in similarly representing a foreign power.)
The 14th Amendment was intended to embed civil rights protections, including citizenship, in the US Constitution so it could not be undone easily by a future Congress or any state legislature. “Its main purpose doubtless was … to establish the citizenship of free negroes” that was denied in the Dred Scott case. (US v. Wong Kim Ark at 676) Thus, the “all persons” language signaled that citizenship is based on “place and jurisdiction and not by color or race.” (Ibid.)
The Dred Scott case, decided in 1857 by the US Supreme Court, was the law of the land until the Civil Rights Act of 1866 and the 13th and 14th Amendments. The Civil War, the Civil Rights Act, and the subsequent constitutional amendment intervened to change that law. Significantly, the Civil War affirmed the sovereignty and unity of the United States, and the legislation and the constitutional amendments changed the law through lawful processes.
In reviewing the history of legislation on citizenship, the Wong Kim Ark court concluded, “[T]he fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well considered opinions of the executive departments of the Government since the adoption of the Fourteenth Amendment of the Constitution.” (Id. at 688) With that, the further Court concluded:
“To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.”
Birthright citizenship has long been the law of this land (since 1868). It doesn’t matter whether the parents are citizens; a child born physically in the United States is a citizen according to the 14th Amendment as affirmed by the US Supreme Court. With that little history, I want to get to my point.
The article, Trump’s Birthright Citizenship Order Reaches the Supreme Court, written by Abbie VanSickle in the NY Times, notes that the same qualifying language, “subject to the jurisdiction of the United States” at issue in the Wong Kim Ark case is also the focus of the birthright citizenship case currently before US Supreme Court. Longstanding precedent is not immune from challenge. Roe v. Wade became the law of the land in 1973, and it was directly overturned in 2022 by Dobbs v. Jackson Women’s Health Organization.
I imagine that the Wong Kim Ark case could be distinguishable on the fact that Wong Kim Ark’s parents were not in San Francisco illegally when he was born, while Donald Trump seems to be focused on the children of illegal aliens. By my reading of the reasoning in the Wong Kim Ark case and the authority it cites, that difference should not be a distinction that makes a difference, but we will have see how these cases play out. In the meantime, I want to comment on the current state of affairs from a different angle.
My family, in both parental lines of ancestry, have been in the United States for generations. Some of them for centuries. Yet, the current immigration tensions hit home with me. My family descends entirely immigrants to this land (unless I have some Native American blood in my ancestral lines of which I am not aware of any). In other words, I am a typical American.
Americans live in a nation long described as a “Melting Pot”. Various streams of immigration have continuously filtered into this land we now call the United States of America since the land was discovered by European explorers not that long ago in the historical scheme of the world. The Vikings, Portuguese, Spanish, French and English were the first streams of immigrants. At various times Irish, Chinese, Italian, German, Puerto Rican, Vietnamese, Mexican and many other people groups have added to that stream.
I am neither a blind patriot nor a self-loathing radical when it comes to this nation’s history. Neither is this a time for naked idealism. Our past indiscretions in the way we treated Native Americans shouldn’t be brushed under the rug, but the great Democratic experiment that has been called a shining city on a hill to the world should not be discounted either.
The truth is nuanced. The truth is messy. Idealism isn’t necessarily a lie, but it requires an emphasize on the truth that serves the ideal, and it ignores the truth that doesn’t. We should not be blind to any portion of the truth. As a wise man once said, “Those who forget the past are doomed to repeat it.” (Or something like that)
The aspects of the American experiment that shine a light in the world include the bedrock value of individual freedoms and a welcoming attitude toward the streams of foreigners who have come here to make a better life. This has been a land of opportunity, if not always perfectly available to all, that is still exemplary in the world despite its warts…. until recently.
So here’s a thought, but first, consider these statistics:
In 2016, in 26 states, the number of non-Hispanic whites who died was greater than the number of non-Hispanic whites who were born in those states, according to an analysis by the U.S. Census Bureau that was released last week. The 26 states were a diverse group in terms of geography and demographics, from Maine to Alabama to California. Nationwide in 2016, there were 0.98 births for every death among non-Hispanic whites, a rate lower than that of blacks (1.71), Asians (3.87) and Latinos (4.88).
I have seen numbers like these before on a national scale. We are tottering on the edge of population regression. People get married less, marry later, have fewer children, and these factors contribute to our population decline – at least among white Americans. Most European countries are well beyond us in this population regression cycle.
Blacks, Asians, Latinos and others have more children than whites do. If the trend continues, whites will become the minority as compared to non-whites. My children went to a school district in which whites are already the minority.
My research shows that the first indiscriminate, mass shooting at a school took place in 1966. Three more incidents took place in the 1970’s. The number of incidents exploded in the 1980’s, and 1990’s, and the shooters since the 1990’s have predominantly been children and young adults in their early 20’s. Something has happened in the last 50 years that was different than the previous 200 years of US history.
Another school shooting has occurred, this time in Maryland at the Great Mills High School. (See the CNN report: Armed student dead after he shoots 2 others at Maryland high school, sheriff says). Some people will herald this incident as a vindication of gun rights because the shooter was taken down by an armed resource officer in the school. I will leave that debate to others. I want to focus on why school shootings are happening in the first place.
Yes, we can say school shootings are happening because of guns, but guns are not the whole story. Guns are not the root cause. Guns have been ubiquitously part of the fabric of American life going back to the Revolutionary War and before. Guns were accessible in our country throughout the 1800’s and 1900’s, but there was never an indiscriminate, mass school shooting until 1966 when an engineering student holed up in a tower in Austin, TX and began shooting at passersby on the campus below.
Within months a copycat shooting took place in Mesa, AZ by another individual who spoke about inspiration from the Austin shooter and a serial killer. (See A Brief History of Indiscriminate School Shootings in the US) Copycat inspiration is a likely source of motivation for indiscriminate, mass school shootings, but copycat inspiration doesn’t explain why. Why would anyone be inspired to emulate such an example as a school shooting?
Regardless of whatever we decide as a society to do about guns, we need to ask why!
Any gun regulation that we pass will only be a cover up of the real issue. If we only take away the guns, we will fail to address the root cause of the problem, leaving us exposed to other forms of indiscriminate, brutal acts using other means. We have already witnessed incidents with knives (for a list of over 50 mass knife attacks since 2001 see Wikipedia), bombs (reference bombings in Austin and San Antonio, TX (Another suspicious package found at FedEx after explosion, police chief says, CNN March 2018)), vehicles and other things.
Perspective 
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