>> democracy is always an unfinished creation. >> democracy is worth dying for. >> democracy belongs to us all. >> we are here in the sanctuary of democracy. >> great responsibilities fall once again to the great democracies. >> american democracy is bigger than any one person. >> freedom and democracy must be constantly guarded and protected. >> we are still at our core a democracy. >> this is also a massive victory for democracy and for freedom. .. during the hearing representatives and witnesses

discussed the specific text undoubtedly be interpreted. this runs about two hours. [inaudible conversations] [inaudible conversations] >> the subcommittee will come to order. without objection stitchers authorized to declare recess at any time. we welcome everyone to today's hearing. on birthright citizenship. i will not recognize muscle for an opening statement. as supreme court justice louis brandeis once wrote, the o most important office and the one which all and should fill is

that of private citizens. the hearings on the issue foundation to her public. he was an american citizen by birthright. section one of the 14th amendment grant citizenship to all were born or naturalized in the united states and subject to the jurisdiction thereof, end quote. it is the latter close subject to the jurisdiction through we will examine today. our inquiry is simple. what was the original public meaning of the jurisdiction clause. the 14th amendment was drafted rectify the terrible decision in 1857 dred scott versus stanford case of recognizing former slaves as rightful americans. as wes will learn today the answers close the jurisdiction clause was originally understood to grant birthright citizenship only i to children as parents he full exclusive allegiance to the united states. the constitutional text and history shows children of illegal aliens and delete labels or inf the united states temporarily on its citizens by birthright under the 14th amendment. for decades proponents will claim the 14th amendment

bustles. [inaudible] sister to all children born for naturals including illy labels. this is a blatant misunderstanding of a both items resulting birthright citizenship serving as a driving force of illegal immigration to the united states as many a illegal aliens with temporary visa holders know they can reap the benefits of their child's citizenship. president trump's first executive order birthright citizenship restoredit the 14th amendment to this the original meaning. despite which made her on the news some of the most respected legal scholars agree with the constitutional trepidation outlined in president trump's executive order. some of these scholars occlude those here on this panel today. our witnesses will dive into the history of the 14th amendment. i'll give you a brief version. drafters of 14th amendment understood not to grant citizenship to persons quote owing allegiance to any foreign sovereignty end quote. in the first case they decide after ratification. the supreme court held thatt

jurisdiction in the 14th amendment means not merely subject to some respect for degree to the jurisdiction of the united states but completely. but completely subject to their political jurisdiction and owing them direct and immediate allegiance. . of course, illegal aliens illegal temporary united states residents do not owe complete direct and immediate allegiance to the united states. therefore, their children are not citizens by birthright under the 14th amendment. now, i am sure we will hear about from colleagues on the other side of the aisle about supreme court precedent as well. let us make one thing clear. never holding illegal aliens in the united states temporarily entitled to birthright citizenship. resident trump executive order consistent. i would also like to emphasize the purpose of today's hearing. we are here to discuss an important constitutional question. this is after all the constitution subcommittee and i hope that we can keep our focus

on the text and history of the 14th amendment. some of the policy implications will come. it will be a disservice to not at least mention those important issues implicated by the important question. in addition to twisting the constitution it is a bad policy. it devalues the meaning of american citizenship by bestowing it to this citizenship of lawbreakers that enter the united states without the consent of its people were rewarding them for trespassing into our country's oil. an estimated 124,000 to 300,000 so-called anchor babies which are children born to illegal aliens born each year according to the center for immigration studies. up to 250,000 children were born to illegal aliens in 2023 which accounted for 7% of total births in the nation that year. moreover further strains government programs that are already strained. for example, in terms of supplemental nutrition assistance in providing school

meals, $5 billion each year and snap and food stamps for the us-born children of illegal aliens. according to a 2023 report for immigration reform. looking at the amount of illegal aliens projected to consume an illegal welfare program benefit they put an even larger bill. for example july 2024 report. a congressional budget office answers to us concluding that the federal government is projected to spend $177 billion in welfare benefits to illegal aliens in the us-born children over the next 10 years. mindful that is a larger population. but it is clear that the birthright citizen issue implicates those issues. $177 billion includes medicaid, ssi, obamacare premium tax credits, food stamps and more. ending birth tourism practice in which pregnant women traveled the united states to give birth

insecure citizenship for their children is good policy. and allows shady and unscrupulous agencies to prey on expectant mothers. between 20,026,000 foreign tourists in the u.s. giving birth on our soil annually. as far as bacchus 2008 the ceo of the medical center, about 40% of births were to illegal alien mothers stated that mother's about to give birth walk up to the hospital clearly having just one across the river in actual labor. they are practicing birth tourism to nestle deeper into the u.s. society which carry security concerns. in 2018, at the following. women from foreign countries mainly china and russia are paying tens of thousands of dollars to temporarily relocate to the united states in order to give birth in the united states

and thereby guarantee u.s. citizenship for their child. you shed light on the magnitude of this abuse, china holds over 500 companies offering birth tourism services resulting in more than 50,000 chinese nationals delivering babies in the united states every year according to a 2019 estimate. even late senate democrat majority leader harry reid recognized the disastrous policy application of birthright citizenship as he opposed automatic citizenship or children born to foreigners. he said in a following speech on the floor, if making it easy to be an illegal alien is not enough, how about offering a reward for being an illegal immigrant. no same country would do that. he continued. guess again. if you break our laws by entering this company without permission and give birth to a child, we reward the child with u.s. citizenship and guarantee of full access to all public and social services this society provides. and that is a lot of services. that is harry reid, former

democratic leader in the united states senate. senator reid was right in his observation. no same country would do that like automatic citizenship to children born to foreigners especially illegal aliens. congress should heed this warning. the framers of the 14th amendment did not intend for universal citizenship to children born to all classes of foreigners. nor did the judges rule on the question of citizenship the on the children lawful permanent residence including those born to illegal aliens and temporary visitors. there is one more point that i'd like to make in closing. congress is where the debate over birthright citizenship should be happening. my friend from texas with legislation fixing this policy gap and restoring the practice of granting u.s. citizenship as it was intended in the 14th amendment. section eight of article one section five grants us power over questions of citizenship. president trumps executive order rightly returns that power to us in doing so returning us to the

reasonable interpretation of the 14th amendment of what it was ratified in 1868. i now recognize the ranking member for her opening statement >> mr. chairman, since this is our first hearing of the new congress, i would like to say that i am anticipating we will continue to have a vigorous exchange of ideas in this committee room and i imagine we will tackle some interesting and thorny legal disputes throughout this term. however, i have to admit that today's topics probably will not meet that expectation because, for more than a century, there been few legal questions as open and shut as whether there being born in the united states take someone a united states citizen. a little bit of a spoiler alert here. i'm telling you right now, it does. frankly to suggest otherwise is nothing but a leg to an disingenuous attempt to rewrite our nations history and the very words of the constitution.

contrary to the decision, the history of the amendment does not support the interpretation that he and his colleagues are pressing and i beg to differ that it has only been a few decades making the interpretation which has been in effect for over one century. now, rewriting history and ignoring the rule of law has become a feature, not a bug under the trump administration, but it is one that congress has a constitutional obligation to prevent rather than enable why are they questioning the plane and long settled meaning of the birthright citizenship clause. simply put it is because president trump and his allies in congress think there is something to gain politically by stripping an entire group of american citizens of their rights, their votes, their very identities and turning them and their descendents into a permanent underclass. wanting to decide who they deem worthy of being a citizen of our

country and who is not based on who their parents are and where their parents are from. in an active really cynical irony, they want to, in essence, resurrect the rationale behind the decision that the 14th amendment was written to reject once and for all. our history, our quest for more perfect union has always been about expanding opportunity and civic participation, not ripping it away. broadening our electric has been an important part of that process. citizenship, disenfranchisement regardless of race, women's suffrage and more. and in doing so, we thought to make our country and its government or representative, more fair and more perfect. that is the goal, the vision that all patriotic americans should share. any attempt to radically reinterpret the citizenship clause serves only to further the goal of right wing extremist to unconstitutionally limit who

can have a political voice in this country. donald trumps unconstitutional executive order to end birthright citizenship along with legislative efforts by republicans in congress to do the same would drag us backwards ensuring a government that is not for the people, but for some people. the absolute emphasis of the promise of america. 150 years since the 14th amendment enshrined birthright citizenship into the constitution. in that time the u.s. has been made better by the contributions of americans born here regardless of where their parents came from or their parent citizenship status overturning birthright citizenship would hurt our nation and deeply apparel our ability to continue striving for a better future. it would impact all americans by creating a logistical nightmare. it would invade our eternity words with states and hospitals being forced to investigate

which may be does or does not qualify for citizenship. we are troublingly ending birthright citizenship with create a legal cap system based on the status of one's parents instead of citizens the u.s. would develop a minute underclass of stateless not legally recognized subjects who could be exploited or deep boarded at the mercy of a political majority. that would be a twisted reflection of the intended purpose of the 14th amendment. the language chosen in the aftermath of the civil war was to prevent this kind of system from ever returning. the republican colleagues want to have a legal argument today, here it is. american children of undocumented immigrants in the american children of those here on visas such as worker study are indeed persons born here in america. at the moment of their birth are subject to the laws of the

united states with an undeniable constitutional claim to the rights, duties and protections of that reciprocal relationship. in other words, citizenship. the 14th amendment guarantees that all persons born in the united states subject to the jurisdiction are citizens of the united states and that is the quote. clearly applying to those individuals. the plain text of that clause is about as straightforward a statement as american law as you can get. but there is additional support throughout the legislative history of this clause. the debate from the passage of this amendment over a century ago. congress clearly defined the intent and purpose of the birthright citizenship laws and rejected the types of arguments being advanced against it today. similarly the supreme court can lettered and rejected arguments against the plane meaning of the amendment in the case of the united states way back in 1898. subsequent cases have rejected the proposition being advanced by her colleagues today.

children of certain immigrants born in the united states should be denied citizenship because it is unconstitutional. clearly, the long history supports a straightforward conclusion. that is why for federal judges have already block the president 's executive order attempting to end birthright citizenship. one of those judges a reagan appointee told trumps doj lawyers the executive order was "blatantly unconstitutional. in fact, he said in the courtroom, and i would hate to have been the lawyer on the receiving end of this, he had difficulty understanding how a member of the bar with state unequivocally that this is a constitutional order. noting that it boggled his mind. with the argument aside, ultimately it resident cannot unilaterally repeal a constitutional amendment. any elementary student of civics

knows that the only way to repeal an amendment is within another amendment. another prohibition, the 18th amendment to the constitution in 1919. it was repealed by the 21st amendment. in 1933. americans overwhelmingly sub- port birthright citizenship. residents and extremists like stephen miller who have championed the idea know that they do not have the votes to pass a constitutional amendment to repeal birthright citizenship , must -- much less get the approval to make it law. they are trying to do an end run on the constitution with a tortured and unconstitutional reading of the english language in more than a century of legal analysis. republican colleagues are here today trying to enable the president as he pushes his wager that his supreme court, the one that he staff will ratify his illegal attempt to amend the constitution without the consent

of the american people. as a congress, as a government, as a nation, we should not be in the business of turning back the clock and allowing or pushing our country to backslide into the most shameful parts of its past. instead we should be passing laws that guided the light of a brighter future, one of which the most fundamental american principles in the promise to form a more perfect union rang true for all rather than just a privileged few. and that, that more just, that warfare america and the policies that actually get us there is what i am my democratic colleagues would act rather use this committee to fight for. i yield back. >> not seeing either the chairman or ranking member, we will move forward in without objection all other opening statements will be included in the record. we will now introduce today's witnesses. mr. charles cooper. mr. cooper is a chairman and founding partner.

a boutique law firm in washington, d.c. he has spent more than 30 years in private practice and has argued nine cases before the united states supreme court. previously serving in the department of justice a law clerk to justice william rehnquist. mr. mccarter is a partner where he litigates federal court and before federal agencies. where he oversaw the department civil program branches. he also really served as a federal prosecutor with u.s. attorney for the eastern district of texas. of virginia. it comes right out. mr. matt o'brien, mr. o'brien is the director of immigration that the immigration reform law institute where he oversees the investigation into fraud, waste and abuse in the application enforcement of the nation's immigration laws. he previously served as an immigration judge in the various position with the department of

homeland security. professor amanda frost. ms. frost is the junior professor of law at the university of virginia undergraduate alma mater. professor frost research focuses on immigration and citizenship law, federal courts of jurisdiction and judicial ethics we think our witnesses for appearing today we will begin by swearing un. please rise and raise your right hand. >> to swear or affirm under penalty of perjury that the testimony you're about to give us true and correct to the best of your knowledge information and belief so help you god. let the record reflect that the witnesses have answered in the affirmative. thank you. please be seated. please know that your written testimony will be entered into the record in its entirety. we have to summarize your testimony of five minutes. mr. cooper, you may begin. >> mr. cooper, thank you, sir.

>> good afternoon to members of the committee. i am especially pleased to be here to explore with you the meaning of six words of the citizenship clause of the 14th amendment and subject to the jurisdiction thereof. the recurring debate over the meaning of these words boils down to a choice between two alternatives. doesn't mean subject merely to the jurisdiction of the united states, that is, subject to the laws of the united states as is virtually everyone on the united states soil including aliens who are here illegally, or are here for the purpose of bearing a child to make it an american citizen or does the jurisdiction of the united states mean something more than that. fully complete jurisdiction requiring an allegiance that comes from a permanent lawful commitment to make the united states once home. one permanently and lawfully

resides. i believe that this interpretation is compelled by the citizenship clause is text structure and history as well as by common sense. i have time for just a couple of brief opening points. first, the text of the clause. subject to the jurisdiction of the united states means nothing more than the duty of obedience, the laws of the united states, why did its framers choose such a strange way to say that? why did they not just say subject to the laws of the united states? doing so would have been quite natural given that the state -- straightforward unambiguous phrases used in article three and article six. the clause also ensures that birthright citizenship makes newborns citizens of both the united states and of the states wherein they reside. that is where they live, they are home. this word standing alone implies a lawful permanent residence and it plainly excludes tourists and

other lawful visitors as well as illegal aliens who are prohibited by law by residing in the state. although they all must obey our laws. the history of the clause. the clause was framed by the 39th congress to conserve delusional eyes the civil rights act of 1866. which had been passed by that same congress just two months earlier. the 1866 act explicitly denied birthright citizenship to persons subject to any foreign power" and to "indians not taxed ". it was clear from the debate and the 39th congress that congress decided to replace this language which was subject to the jurisdiction thereof, not because congress suddenly and without any comment decided to broaden the scope of birthright citizenship from the act rather congress was concerned that the

phrase indians not taxed language generated uncertainty about the citizenship status of the children of indians primarily rich and or indians. the dispute is best captured, i think, by the comet from senator trumbull who wanted to replace the words indian not taxed even though he was the principal author of the 1866 act. he said i'm not willing to make citizenship in this country depend on taxation. i am not willing. a citizen in the poor shall not be a citizen. this comment reflects two important points about the intended meaning of the clause by its authors. first, they intended that the children of tribal indians who resided on reservations and owed their direct allegiance to their

tribes would not be entitled to birthright citizenship but the children of assimilated indians who have left their reservations and have established permanent residence among the body politics of the states were the entitled to birthright citizenship. second, it is not at all possible that the framers of the citizenship laws intended that tribal indians which are able to evade this limitation on birthright citizenship for their children by the simple expedient of leaving the reservation long enough to give birth to a child. the key distinction between tribal indians and assimilated indians was allegiance. tribal indians owe their direct allegiance to the tribe while an indian who established a permanent domicile within the state and assimilating into the body politic committed his primary allegiance to the united

states and entitled his children to citizenship at birth. the supreme court's 1884 decision against wilkins confirmed this understanding, essentially. ruling that the clause required persons to be completely subject to the political jurisdiction, political jurisdiction of going direct and immediate allegiance to the united states. one final point. the supreme court's 1898 decision had nothing to do with the children of illegal aliens or aliens lawfully but temporarily admitted to the country. the court framed the issue before it twice and verbatim terms as involving "a child born in the united states appearance of chinese descent who have a permanent domicile and resident in the united states. thank you, mr. chairman.

>> thank you, mr. cooper. we will now move to mr. mccarter i will note ms. frost, when we have a little bit of time, i will give you ample time as well the please proceed. >> ranking member and distinguished members of the committee, the 14th amendment confers citizenship on any person who was both born or naturalized in the united states and subject to the jurisdiction thereof. each of those clauses is a specialized term of art. it does not mean what it may mean at first glance. for example held as recently as four years ago that those born in u.s. territories are not covered by the citizenship clause despite being literally born in the united states. and, similarly, the jurisdiction clause it evokes the doctrine of allegiance meaning the person must owe direct and exclusive allegiance to the sovereign as a d.c. circuit held as recent as

2015. historical record is lengthy and complex. i would respectfully direct you all to the amicus brief that i submitted on behalf of many members of this committee. i will highlight three issues in particular. first, like mr. cooper i will emphasize the importance of the civil rights act. widespread agreement that the jurisdiction clause of the 14th amendment was meant to constitutionalize that act and they mean the same thing. of course the act excluded those that are subject to any foreign power. that means citizenship for both clauses turns out not being subject to any foreign power. the senator who was later principal author of the 14th amendment said what does this mean, it means that every human being born within the jurisdiction of the united states of parents not owing allegiance to any foreign sovereignty would be a citizen. american birthright citizenship was reserved for those not already deemed collegiate afterbirth. that takes me to my second point

you have may have noticed in the quote that he refers to the parents allegiance. the 14th amendment itself refers to the allegiance of the child. what is a connection there? the connection is that at that time and in many countries even now the children born, the citizens were deemed themselves to be citizens of that country. for example, english law at the time, a child born to english citizens in america would be deemed an english citizen at birth and therefore could not go complete and exclusive allegiance to the united states. that would deprive the child of being allowed birthright citizenship. that is a connection between the parents allegiance in the child's allegiance that you see so often. this lead to the third and final emphasize today. as mr. cooper said, as a matter of logic and history, the phrase subject to the jurisdiction thereof cannot mean subject to the laws thereof.

the exceptions prove a way. there is widespread agreement that children born in the united states to ambassadors or to invading soldiers would not receive birthright citizenship. it is not correct to say that all of those born in the united states are citizens, even under those i challenge president trumps executive order. almost no one holds up you. the explanation given for why ambassadors children and children of foreign soldiers are not entitled to birthright citizenship is often that those individuals are not subject to u.s. law. in other words they have various forms of immunity. that is wrong. not even ambassadors have full immunity. at best it is contingent. no foreign soldiers immune when they are within the united states. this inquiry cannot turn a parent supposed immunity. as mr. cooper also pointed out, there was the fact that there was complete agreement at the time of the 14th amendment that

indian children would not be covered. even though they are undoubtably subject to u.s. law long have been. subject to the jurisdiction thereof mean subject to the laws thereof moves far too little. they cannot explain any of the categories where they expected. it also proves too much. if it is correct that having a parent with contingent with partial immunity as an ambassador would have, it would deprive the child to birthright citizenship. domestic individuals judges, prosecutors, even members of congress that possess immunity or certain acts under debate, falling under that we know it is not right. the children and those officials are u.s. citizens. so what test explains the exceptions? it's allegiance. the first that i mentioned. they are all fully allegiance to the united states. ambassadors, foreign soldiers are not. so, the take away for this

committee, congress can confer citizenship by statute. those born in many of the territories. that power is and always has been exclusively congress is alone to exercise. thank you. >> thank you. mr. o'brien, you may proceed. >> thank you, members of the committee. it is a privilege to appear before you today. i thank you for the invitation. i would point out two things based on my many years of experience working in immigration. a naturalization division of the ins. very familiar with these issues. it is very easy to say the

meaning of this case is obvious. of course, if it were obvious, someone would have had to become a case in the first place. the common narrative goes something like this. meaning everyone born in the u.s. get citizenship and confirming this stating that no plausible distinction to the 14th amendment can be resignation. they are to major problems of that approach. the first is that the court could not address a question.

people likely becoming public charges as wolves that appear to be clinically insane. the concept was one that would not come alive until much later. permitted to remain there indefinitely. incidental expression that is not essential to a decision and does not constitute part of the precedent established by case. in that case, in a footnote, expressing the personal opinion that the 19th, statute held everyone born in the u.s. is a citizen. in short neither one can apply they had anything to do with whether the children of illegal aliens become u.s. citizens at

birth. in fact that question is not yet and addressed by the supreme court. there is little basis on which it may be argued that it would require a conclusion of the children of illegal aliens automatically entitled to citizenship being born within the confines of the united states. a reasonable policy for the transmission citizenship. currently associated and i hope that my testimony here today what assist this committee and the 14th amendment and what it really requires. stopping and thinking about this , it would be irrational to lay out a list of people that are inadmissible to the united states in his presence here is unlawful which can result in their criminal prosecution as well as the removal from the united states but allows the people to transmit citizenship to their children unquestionably and without any problems.

so i thank you for inviting me here today. >> thank you, mr. o'brien. i appreciate your testimony. >> chairman roy, ranking member and distinguished members of the committee, thank you for the opportunity to discuss the significance and meaning of the 14th amendment citizenship clause. provisions of the u.s. constitution are broad and confusing but the clause is not one of them. it is over a century of unanimous judicial precedent and historical practice all confirm that the citizens clause means what it says. the citizenship clause grant citizenship to all in the united states and the only meaningful exception today is for the children of officials. the citizenship clause was intended to remove the stain of dread scott from our constitution.

the supreme court constitution that turn solely on race and ancestry and not birthplace. in 1867, i'm sorry, 1868 the nation rejected him when discussing this the reconstruction explicitly stated that it wanted to provide citizenship to the 4 million formerly enslaved americans and the children of immigrants arriving from around the globe. this acknowledged and well knew that some of those enslaved americans had been brought into the country in violation of the law because laws after 1808 probated the international slave trade. these were the illegal aliens of the day. wrong that mr. o'brien stated that there was not such a thing at the time. reagan's on gresh —-dash reconstructive congress neither was or intended to grant citizenship.

that is why the order has been rejected by every federal court that is addressed in over the last month, five and counting. these judges have been skating. federal judge appointed to the bench by ronald reagan described the executive order as blatantly unconstitutional. federal judge a george w. bush appointee joined the executive order on the ground that " contradicts the text of the 14th amendment and the century old untouched precedent that interprets it. these judges have concluded that the trump administration's arguments in favor of the executive order are historical a textual and illogical. i will not spend any more of my time here. detailed in my text of my written statement. i will move on and talk about the devastating consequences of this order.

3.5 million american families that welcome a new child into their family. that alone is disturbing enough. in doing so it excludes hundreds of thousands of newborn children from citizenship. including the children of immigrants became legally to the united states. all of these newborn children will be declared undocumented immigrants from the moment they are born. some will be born stateless and all would be at risk of being deported away from their parents , denied all the rights and privileges of citizenship at the most vulnerable moment of their new lives. worse, if this were to go into effect it would not be limited to the people carved out by the executive order. that is children of undocumented immigrants in the children of temporary immigrants. it would affect all americans. every single person giving birth to a child going forward. all would now have to produce

paperwork proving their status, their citizenship, their green card status at the time of the child's birth he had i will tell you, for many people, that is not easy. i thought this was a committee that favored limited government expanding the federal bureaucracy and the paperwork burdens on these families, hospitals, state agencies and overburdened immigration officials. the most sensitive moments on these people's lives. it is not a terrible public policy. it also conflicts the fundamental values. the choice you have made well over a century ago. born in america is to be born in equal citizen. america is excellent at integrating the children of with immigrants into our society. it is one of our great strengths

all americans should be proud that the nation rejected dread scott and reclaimed citizenship based on citizen a birth not lineage and ancestry. welcoming the children of immigrants we must never go back >> thank you, mr. frost. now under the five minute rule with questions. the chair recognizes the gentle lady from wyoming for five minutes. >> thank you, mr. chairman. allowing for predatory service and practices in which foreign-born women come to the united states to give birth to u.s. citizens. once the children through 21 can sponsor their parents to become legal u.s. residents so the family can immigrate to america. the majority including china. because of advances in technology and the incorrect understanding of the 14th amendment, countries are now using international surrogacy programs to rent homes in

america. mr. o'brien, there is a back-and-forth in u.s. policy regarding scrutiny and restrictions for birth tourism including two different policies issued in 2015 and 2020. where does our federal policy currently stand on this issue and is strong enough to prevent this practice of essentially renting wombs for surrogacy have anchor babies. >> the fact is immigration laws in the last administration. having no effect whatsoever. 300,000 estimate and citizens. the implications of this are absolutely frightening. the cold war the russians agents

of influence and spies into the united states with documents that made it appear that they were lawfully here. if those people had children, they became u.s. citizens and regularly, those children were trained despite the fact that they allegedly had claimed united states citizenship. they were trained to be against the interests of the united states. this is something that is dangerous. we need a firm policy against it and it is something that places the united states at a great deficit in terms of national security. >> i want to focus specifically on this issue. they have reported on a new earth tourism tactic which uses international commercial surrogacy to exploit americans misinterpretation of the 14th amendment and our last surrogacy laws. intended parents who are foreign nationals use a surrogate and were transported to the united states in the surrogate may be an american woman allowing

foreign nationals to eventually rent a womb or by a baby. mr. o'brien under the interpretation of the 14th amendment, this child would gain u.s. citizenship. >> yes, they would get the immigration and nationality act under the weight of misinterpretations about various effects or provisions of the ad. that places the united states in a position where people with no connection to the united states who simply want to be here because i don't like the political or economic conditions in their home country and then use the citizenship of an adopted child or surrogate child to try to access the united states and then eventually give lawful permanent residents and become citizens themselves. >> this form actually exacerbates the crisis that we have with citizenship requiring directed lucidity which should require direct exclusivity to the united states. do you agree? >> yes, it does.

>> what is very interesting is china band surrogacy, if the industry is disproportionately fueled by chinese nationals who make up 41.7% of the surrogacy industry, should this raise national security concerns that china is aggressively participating in a practice and it is banned in its home country >> yes. china has an established pattern called the people's work bureau of approaching people that have a connection to china regardless of their citizenship and pressuring them based on connections to chinese family members who are still within the prc to provide intelligence information. whether that be national security information or economic information. >> what is interesting is that these children receiving american citizenship, they received that even if the parents intend to raise them abroad. what are the benefits of having a child with american

citizenship? >> having a child with u.s. citizenship as they can later sponsor you for permanent residence. it also makes a child eligible for all sorts of things that come along with u.s. citizenship which is entering and leaving the united states. making it very enormous. it is shocking to me that there is so much debate about this. i think if we are arguing about this we have an awesome concept about what it is and what it means. i ask unanimous consent to put into the record an article from july 15, 2024. entitled the new face of birth tourism and birthright citizenship. with that, i yield. >> without objection. >> permitted to participate in today's hearing for the purpose of questioning the witnesses if

a member yield him time for that purpose. i will now recognize the gentle lady from washington. >> thank you, mr. chairman. donald trump executive order to eliminate birthright citizenship is blatantly unconstitutional. those are not my words. those are the words of judge john, reagan appointed federal judge from my home state of washington. the rule of law is according to trump something to navigate around or something to be ignored whether that be for political or personal gain in the courtroom. the rule of law is a bright beacon which that judge intends to follow. for over 100 years it has been enshrined in the fundamental right under the 14th amendment. the language is very clear. in fact so clear that at least for federal judges concluded the

executive order is unconstitutional. like many of the attacks on immigrants by the trump administration, dissenters on old troops that question the allegiance of immigrants. troops that were applied to enslaved black people brought to this country in shackles as well as japanese-americans imprisoned in world war ii. these attacks in a completely baseless argument somehow immigrants wanted the united states to apparent undocumented don't have sole quote allegiance to the united states. the argument is very similar to the very arguments made in 1897 fisa literal or general homes conrad in the supreme court case united states where he argued that the children of chinese immigrants were not subject to the jurisdiction of the united states because they owed their allegiance to the emperors of

china. they considered these arguments and they categorically rejected them. correct? can you explain why if that's the case? >> yes. that is correct. coming from a slaveowning family an officer in the confederate army. in addition to the argument that you just did stating they did not have allegiance to the united states. it was rejected by the supreme court. in addition it is worth noting the entire 14th amendment was unconstitutional. there was an argument he made the i am not aware of them ever making that argument. any other supreme court in the history of the united states and of course the supreme court rejected that as well. that argument has been made. it will sail again today as it already has in front of federal

court. >> subject to the jurisdiction. a narrow qualification that only accepted three specific classes of persons from citizenship. can you tell us what those three classics were and why they do not imply the immigrants. >> it is very clear. the supreme court cleared. subject to the jurisdiction thereof apply to two groups. one with the children of diplomats for the obvious reason to be a citizen and the situation in the united states is the representing a foreign power protect a foreign territory. native americans with the only substantive discussion three discussion congress had. they suggested clauses to the 14th 14th amendment and the pointed out in many discussions that the indians native american tribes were sovereign powers whom we

had a treaty relations were not subject to u.s. law. they had their own tribal courts and blogs. laws. at that time they wanted to be excluded and the congress did want them to be incorrect. i should note there's now a federal law that gives native americans automatic birthright citizenship. the final group t i'm unhapy we've never encountered which is in the alien in occupied territory. >> great. i'm going to stop you because of another question. one of the the order was brought by an individual in my state, alisa lopez born and raised in el salvador but fled after experience of violent and abusive situation. she applied for asylum, received a work permit while applications pending. lived in washington state since 2016. she has a five-year-old with a partner. she's pregnant with a second child who is due in july. i want to bring this back to the real impact of what will actually happen. birthright citizenship has generated this deep sense of membership in our society.

a collective commitment to a shared value, opportunity, contribution. what's the impact on real life americans across this country? >> to eliminate birthright citizenship would be to create a permanentth underclass, a caste system. >> thank you so much. ion yield back, mr. chairman. >> i now recognize the committee chairman mr. jordan. >> i think the chairman and thank you voting district. i would younk buy time to the gentleman from w arizona. >> i think the judgment for yielding. i'm going to ask each when you a question related to this scenario because this is a real scenario. in yuma, arizona, we. have one hospital for about 150,000 people. a small maternity unit about eight to ten beds, many times the beds every one of them is occupied by a mom to be who a legally crossed our border,

usually through the reservation right where they come and they go and they have a baby and that they both depart to go back south across the border. i guess my question for each one of you is this. under the original meaning because i'm trying to establish you've all made it clear, i want to make it clear. under the original meaning of the 14th amendment ms. frost, is that child a citizen of the united states of america? >> yes, of course, because of reconstruction congress. >> thank you. appreciate that. and now mr. cooper. >> no, not under the citizenship clause of the 14th amendment. >> i i agree, that's great. >> mr. o'brien? >> no, because she is not lawfully present in the united states, the mother. >> so let's consider, we have a

very, very disparate interpretation of the law. we got ms. frost, position, i don't want to mistake it but that that, the original allegiance or the jurisdiction thereof displaced theac allegiae require the come right? there's no more allegiance requirement. is that a fair description of what you're saying at least on that portion? >> i'm not sure whatt you're referring to buy the original allegiance requirement. there was never>> an original -- >> so that's one getting at. you believe there was never a jurisdiction, never required a allegiance to the sovereign. i want to clarify that. when you get to that, mr. mccarter, why is it that the court said that the plaintiff or the appellate in that case was actually a citizen of the united

states? >> the supreme court's rationale is a a little hard to follow toe honest but it does say that the parents there are lawfully present with the consent of the sovereign which is the united states. the equivalent of our modern day lawful permanent resident. >> that's the way i read it. talking about there's lawful presence. there's an intention which is a legal term meaning you are intending to live the come stay there and be part of that community. that's really what they it. i'm baffled by the notion then that if you cross through the reservation and you go into the regional hospital in yuma mac and you have a baby and your intention is immediately leave and go back home you are not legally present in the united states, nor jew have an intention be here.

why then doesn that baby and toddler birthright citizenship, mr. cooper? >> that baby is not entitled birthright citizenship. wong kim ark does not in any way support the claim that it's entitled to that. the birthright citizenship. as image and previously the issue insh the case was clearly limited to aliens would establish a permanent and lawful domicile in this country. so whetherer you think that's sufficient or not, it clearly doesn't suite within that people who come into this country illegally. i would also point out wong kim ark itself said there are some certain irresistible conclusions to be drawn from the citizenship

clause, including that the 14th amendment affirms the ancient and4t fundamental role f it citizenship by birth within the territory in the allegiance and under the protection of the country. the reason they concluded there -- >> i had to go there because of what to go quick because it segues from that nicely, and that is one of the things, and actually ms. frost kind of, she indicated this, in the indian tribe case when we look at that, is because there's respect for tribal indian having an allegiance to that tribe. that's very t different than someone who crosses over, has a baby and returns to their native country. isn't that true? >> yes, that's true. and in wong kim ark with the court did was they inferred that long-term residents was an

intention by someone who was working toward citizenship and wanted to be a long-term member of the community of the united states. so the court took pains to point out that were two qualifications. one that the individual attempting to transmit citizenship had to be lawfully present in the united states with permission of the government, and number two, that that person was within the allegiance of the united states, meaning that that individual had more than a simple obligation to obey the laws while present. >> thank the gentleman from arizona and witness. when i recognize mr. comer. >> i want to go back to where you were right there. i think mr. mccotter said this as well. your interpretation is to be lawfully present in the united states with consent of the sovereign. mr. mccotter said that's the equivalent of a lawful permanent resident, ishe that correct, mr.

mccotter? >> that's correct come a. >> and you agree, mr. o'brien? >> yes, i do. >> why is a visa holder not lawfully present in the united states with consent of the sovereign? >> first of all visa holder is a person who has a permanent -- a permit to come to the united states to request submission. a person who has been admitted to the united states by the appropriate authorities following inspection by an immigration officer is lawfully present. >> so someone with a work visa, i could go on for years and years, you are saying is not lawfully present?ea >> no, that's not what you set all. i said a person who is been admitted in a visa classification by h-1b, f1, sort and so forth, is lawfully present while the in compliance with the termsll of the immigration law. >> so i agree, but you were trying to restrict this to green

cards, and the problem that i'm addressing here is this executive order is not restricted to green cards. it prohibits birthright citizenship if neither parent is either a lawful permanent resident or united states citizen. do you agree with that, mr. o'brien? >> yes, i do. the court -- >> thank you. in wong kim ark, exactly, in wong kim ark the use definition you just said which would include visa holders and yet the executive order expressly excludes visa holders pixel it's meant to the second point. allegiance, this is what the subject of the jurisdiction thereof that you all three of your talked about relates to allegiance. .... a clear and definitive definition of allegiance, but let's just talk

about what you all were saying. allegiance means assimilated. is that correct, mr. cooper? is that >> i think that only a person or at least an indian under the view of the framers of the citizenship clause who had been assimilated and left the reservation and therefore had essentially abandoned that person's allegiance to the tribe and shifted allegiance to the united states as others-- >> so if you move off a tribal reservation and you move across the street at the time, we are talking about originalism here, and you move across the street, then all of a sudden your allegiance has changed from the indian tribe, the native american tribe to the united states. that's what you're saying, do you disagree with that? >> i do disagree with that, i

think the notion-- >> is there a time requirement you must have-- you must live off of the reservation for one year, two years, five years? >> no, no, there's not. >> this is the problem, you start talking about allegiance and you're excluding green card holders. now, green card holders, of course, are also citizens of other countries, and yet, somehow in this definition of allegiance, that a green card holder has more allegiance to the united states than that person would to, by necessity, by definition then that person would to a foreign country. that seems like a pretty bold statement to be asking the supreme court to say and what scares me about it, as an american jew, when jews are

often accused of dual loyalty with israel is you're now getting into a situation where the government has to determine which country any individual has more allegiance to, the country that they have immigrated to and even if they're a lawful permanent resident or the country of their citizenship and it baffles me that the republican party, the party of small government, the party of federalism and state's rights would sit here and say, yes, it is the government's job to create a definition of allegiance which somehow is required in order for birthright citizenship. look, mr. biggs, you may not like it, birthright tour

imsomeone coming to the united states having a baby and then leaving, you don't agree with that, that's fine. pass a constitutional amendment because this is clear and this definition that you're providing is unbelievably vague and very, very careless and i look forward to the courts rejecting it. thank you, i'll yield back. >> thank you, the gentleman from new york. as individuals who recite the pledge of allegiance down on the floor of the house of representatives every time we open the house, i think those of us understand what allegiance is, and particularly the gentleman from texas, and wore the uniform and one of the very few responsibilities our government has is making those determinations who should be citizens and who should be in our country. i would recognize the gentleman from texas. >> thank you, mr. chair. i understand more than anyone that we are a nation of immigrants, but there's a difference, a stark difference between giving citizenship to

the children of slaves, the children of those subject to the middle passage, the children of sharecroppers and those once considered property and giving citizenship to the people children of people who cross the illegally, and giving-- my grand father was born in now rose plantation in louisiana. he had to join the color guard to gain his freedom. by morphing the citizenship clause into something that it isn't meant to be, it's demeaning to descendents of slaves of this countries. my father was a retired colonel, my brother went to west point, we're talking a direct descendent of a slave

who earned the right to be here in this country and passed down to this country. people bled for it, died for it and it means something. the purpose of the 14th amendment that president trump's birthright executive order is that the citizenship clause of the 14th amendment was never meant to apply to children of illegal or legal aliens. allowing birthright citizenship to stay the citizenship of black americans like me or every single american citizen who had to earn it the right way. let's say this in black and white. either you're a u.s. citizen or you are not. spent decades cheapening what it means to be an american citizen and chipping away at the basic value of american citizenship. they pretend to be altruistic and we know the truth. and on "the view" said we have to let illegal immigrants in this country because who else

will clean our toilets. hear it all the time. who will pick our crops, even though we know that american citizens, majority of citizens picking our crops, we know what you're insinuating. and you brought up birth citizenship and talk about that as a national security, as someone who was served the country. which is near and dear to my heart. >> if we give citizenship out of anyone who is born on our soil, this takes it out of our control, as people know, the people of the united states, and could be in a position allowing people who are citizens of adversary nations to be coming here, having children who gain u.s. citizenship and then are trained to be adversaries of the united states and puts them in a position they can get job with security clearances, they can join the military, they can work in the defense industry

which they would not orr wise be able to do. >> over the course of the last few years have there been instances people to that enter our country, that are our adversaries and come to the country and have children? >> yes, a massive number of people who have come mere and not just over the last four years, it was happening before. i worked in the national security apparatus of the department of homeland security and i worked on many cases where that had happened. >> is there any other country in the world that you know operates like this? from the standpoint of saudi arabia or any other countries, any country in modern history that behaved like this and the outcome, is this a sustainable model given the number of people admitted to the country offense the course, especially the last four years. >> no, it's not a sustainable model. the only other place, the latin american countries and most did

away with it after they were attempt to go attract migrants in order to build their industries and build the number of people living in those countries. this is something that's nearly nonexistent. and the left wants to open the border to be nice, and we have a bunch of neighbors in the country that are americans. your neighbors are the homeless veterans you see on the way to work. the homeless teens, your neighbors are the families who just got evicted from their apartments. what do all of those neighbors have in common? they're all americans. and let's use our american tax paying dollars to put americans first. news flash, this is why president trump is our president because it's past due that we put the american citizen first and once we solve our issues here, i'm a christian, by god, let's help everybody else, but at this point, we have enough problems

to fix in our own country and this must stop. thank you for your time. >> thank you the gentleman from texas. i will now recognize the gentle lady from vermont. >> thank you, mr. chair. today we've heard a lot of different legal theories about interpreting the constitution and at times it feels a little like a law school lecture so i'd like to kind of cut through the legalese and clearly focus on something that i find deeply troubling. what republicans are offering is a plan to redefine who gets to be american and it's a big step towards a country where american is itself an i applies to a future few, relegate today an underclass status. they're trying to stake out who is a real american and it will leave a whole lot of people out and this, i think, is a frightening road to go down.

the arguments we've heard have been with us since our founding, as you pointed out, professor frost. the dread scott decision changed the common-law understanding of birthright citizen for all. it enabled slave owners to use the law to take away citizenship, to take away identity, to take away the freedom of black people, the 14th amendment ap the civil rights act of 1866 were a direct response to dread scott. the law grants citizenship to people born in this country, plain and simple, yet, here we are over 150 years later, talking about how maybe the straight forward language of the law could possibly or should actually be used to deny citizenship for often people of color. ms. frost, did the framers of the 14th amendment intend to extend birthright citizenship to the children of slaves and other non-citizens?

>> yes, the reconstruction congress could not have been clearer, they used clear language and discussions that followed made it clear. of course they want today overrule dread scott, which would give citizenship to slaves, ab the illegal aliens of the day. the reconstruction congress said we want them to have citizenship. the second group children of immigrants, in particular the children of chinese immigrants, that was the intent of the reconstruction congress and achieved that through clear language. >> thank you, through clear language. >> and citizenship was based on where you were born, correct, and not actually the identity of your parents. >> of course. we are a country that doesn't visit the sins of the father on the child. we believe in the idea that all people born are equally american because they're born in the united states. our constitution rejected titles inability explicitly.

we rejected a hereditary monarchy. america is about birthplace, not about ancestry or lineage. >> is it to say that the 14th amendment enshrined for people and their ancestors. >> and real rule would require a test for lineage for every new child born. 33 countries have birthright citizenship in response to the question, including canada and mexico, we're not outlier. >> i'm glad you brought that up. i had it in my notes to bring that up as well. what with the supreme court decides that the 14th amendment actually does not give citizenship to children born in this country to non-citizens. what if the supreme court made that ruling? where does that leave the descendents of those who have been granted birthright citizenship? >> it would unwind the citizenship of the entire country. we are a nation of immigrants.

very significant majority, other than native americans, trace back to immigrants, parents, grandparents, and in the military. all of us when we have a baby first thing we'd have to do is show proof of citizenship. imagine a generation, you'd have to show the lineage. and that's what dread scott so the wanted. >> say a person's grandparent came to this country from central europe in 19th century and investigation reveals that those grandparents used false pretences or false names at ellis island. does at that mean based on what my colleagues would be saying today the present day descendents of the grandparents are not citizens? >> the logic of the position is every single person who considers themselves an

american, perhaps in congress or voting, any flaw, going back to the contract labor act of 1885, if you came to the u.s. under that contract, all of those citizens could be stripped of the citizenship under the executive order. >> thank you, if i could, in conclusion because i see i'm out of time doing away with birthright citizen is intentional to give this president, i believe, power who is an american and who is not. >> i'm recognize from north carolina. >> thank you mr. chairman and to this hearing and all serving on this panel it had. the issue of birth tourism is a big concern for me and stands out as a glaring example of a loophole being taken advantage of. mr. o'brien in your testimony you shared a little bit ago

with mr. hunt with the national security risks associated with widespread birth tourism. what are among the top countries taking part in this practice, where do they come from? >> well, the largest is china. the second largest is india. and then it drops off from there, but there are still large numbers of people from a large number of countries that we should have concerns about. >> very good. when the national security risks that you have addressed puts many coming here in harm's way. can you talk about how birth tourism can harm the expectant mothers involved in this? >> certainly. it's not advisable. at least according to all of the medical personnel that i've talked to, for women mo are in an advanced stage of pregnancy to do a 14, 24 hour flight from china. we've seen repeatedly along the southern border, people in extremely harsh environments,

attempting to cross the rio grande while expecting a child imminently, so this is a danger to both the mother and the child. >> thank you. i'm also curious while we're here, mr. o'brien, about the comparison between how the united states treats this concept of birthright citizenship when compared to the rest of the developed world. is it common for other countries to automatically grant citizenship to those born on their soil? >> no, it's not common. it's something that's most typically associated with the united states, latin america, canada and a few other countries that have extremely truncated variations of it. >> how would you say that america compares to most eu countries with regards to this issue? >> it's profoundly more broad. most countries that have birthright citizenship have restrictions compared to the united states. >> very good. mr. mcconnor i'd like to hear from you, how congress can play

its part in this conversation i mean, it's one thing for executive orders and other thing for court steps and interpretations. what steps can congress take to support president trump's executive order. >> i offered an amicus brief and we submitted in almost all the district court proceedings and several circuit court proceedings, the court is aware of the members' views on the historical understanding of the jurisdiction clause. that's one that congress could do. congress could hold a hearing which we're having now and i'm glad to participate. >> i'm proud to be a co-sponsor of representative brian babin's birthright citizenship act of 2025, clarifies which individuals automatically receive american citizenship at birth. i've told folks if ever there's a time for us to chair clarify and codify, that's now. would you deem it congress

clarify this question surrounding the citizenship clause or should it be left to other institutions? >> the supreme court has long held that the decision of citizenship is left to congress, except, of course, as dictated by the 14th amendment. the courts can interpret the 14th amendment as they're doing now, otherwise it's exclusively a congressional prerogative. >> so we do have an opportunity now and with act to take some action on this. with that, mr. chairman, i yield back my time. >> i thank the gentleman from north carolina. i'll now recognize the gentleman from maryland and the ranking member of the committee. >> mr. chairman, thank you very much. and thanks to all the witnesses for being here and special greetings to my former colleague, professor frost. i want to start with you because there's been a major flurry of litigation about the onslaught of unlawful awn unconstitutional executive orders that come down from the administration. and this executive order has appeared in four different

courts and it's r i understand it, all four of them have worked to stop it either through a temporary restraining order or a preliminary injunction and they were appointed by my count, by presidents reagan, george w. bush, barack obama and joe biden. two republicans, two democrats. take a look what they said. the judge who is nominated by president reagan. citizenship by birth is an unequivocal constitutional right. it's 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, says the judge. the fact that the government cloaked what is, in fact, the constitutional amendment under the guise of a constitutional order, is not constitutional. the government can mott play

games with. and the judge laplante nominated by president bush. the plaintiff is to suffer on this. and in my home state in maryland, executive order intemperatures the citizenship clause of the 14th amendment in a manner that the supreme court has resoundingly rejected and no court in the country has ever endorsed. and finally, check out the judge nominated to the district court in massachusetts by president obama who says the 14th amendment says nothing of the birthright citizen's parents. in efforts to import such considerations at the time of enactment and when the supreme court construed the text was rejected. no federal judge, to my knowledge, has upheld this executive order against legal attacks. tell me why you think there's such unanimity across the spectrum among the judges? >> well, first of all, the

language is crystal clear of the 14th amendment. there are thorny and complicated and broad and vague provisions of the constitution, the citizenship clause is not more clearly. the language is universal. >> i did some research last night and i found that the leaders of the writing of the first section of the 14th amendment were republicans from ohio, right? john bingham was described as the primary author of the citizenship clause by supreme court justice hugo black who said he was the 14th amendment's james madison. the second founder who most worked to realize the universal promise of madison's bill of rights and jefferson's declaration of independence. and another ohioan insisted on making the citizenship clause perfectly clear to avoid any back sliding in times of high partisan feeling. he said i've always believed that every person of whatever race or color who was born in

the united states was a citizen of the united states. but by the decisions of the courts, there's been a doubt thrown over the subject and if the government should fall into the hands to those opposed from the views some have maintained those accustomed to take a different view of it may con s-construe the decision, not at this time unless we fortify and make it very strong and very clear. if we do not do so, there may be danger that when party spirit runs high it may receive a very different construction from that which we, the founders, put upon it. now, so i wonder what you think senator wade might be saying about the debate today, about whether it's okay just to throw away the first sentence of the 14th amendment. >> yeah, he was remarkably precious. he foresaw a future in which a future political party would want to take away citizenship and voting and political power from groups of americans. it didn't like and it didn't usefully american. >> right, i'm sorry to rush you

along here, but the original purposes of the 14th amendment remain perfectly clear for someone who is an originalist, they wanted to keep the government from a caste system or legal status from one's parents in post reconstruction america, nobody would ever become a slave, an serf, a legal outcome, or a king or prince at birth because everybody would attain equal citizenship at birth. am i saying this correctly. >> you are. >> the ranking member of the committee, i'll recognize for five minutes. i'd like to ask one of the three gentlemen on the right here, i had other committee hearings, i'm sorry if i'm going over things you already dealt with. but it says in the 14th amendment that citizens are

people who are all persons born in the u.s. and not subjects to any foreign power. i mean, they must have had something on their mind when they said not subject to any foreign power. does anyone want to comment on that, how that little phrase there, how that affects what the original drafters intended? >> i addressed them in my opening remarks, sir. so i think the best understanding is that it referred to children who would be deemed citizens of their parents' home country as of the moment of birth. >> and right now in this country if your wife goes to italy and has a baby, does she become an italian citizen, would anybody say that? >> i'm not sure what italy's laws are. mr. o'brien on that. at the time the 14th amendment. english citizens born in the u.s. would still be english citizens and not be entitled to birthright citizenship.

>> there are a variety of countries that have some for the of birthright citizenship, none of them in europe, canada, but you mentioned mr., o'brien that that's a limited type of birthright citizenship. would could you elaborate on that? >> yes, in most of those countries there are restrictions that require at least one of your parents to be there lawfully. in some cases it's birthright citizenship combined with a familiaral lineage. there's all different ways of doing this. the united states is 0 the only place that does it the way it's done here. >> okay, so if you would interpret the way that some people want to interpret it, you would say the united states would be a clear outlier in the globe. >> yes. >> would they have been a clear outlier in 1866? >> well, yes, because at that point most other countries in

the world were monarchies and the monarch considered you something akin to property, owing permanent allegiance. regardless where you were born, you could still be considered a citizen depending how you have left the country. >> of course, we have records of the debate at the at the time in 1866. there's a quote here from a senator howard from michigan making it clear, i think, that he felt we were excluding people or foreigners or aliens normally. do you want to elaborate on that, what the drafters at the time thought? >> sure. i think the drafters at the time were concerned about the treatment of emancipated slaves during the reconstruction time. frankly, at that point in time there was relatively small number of people in the united states and as i had stated in my opening remarks, the concept of illegal alien was not the same as it is now.

>> was there any indication at that time that in the hypothetical that president cites today, is there any indication that the drafters of the amendment believed if someone came here as a visitor, whatever, we talk about people coming from china, landing in san diego or whatever, that the equivalent would have resulted in people being a citizen? is there any evidence of that in 1865, 1866? >> no, according court was explicit referring to people who were residing in the united states with the permission of the government. >> there's no evidence of any of the debaters at that time, saying, which we're opening the door to almost american citizens to anybody who gets off, you know, just gets off a boat and-- >> no, and if you stop about the way the amendment was drafted if that's what they wanted they could have left the qualifying statement out and said anyone born in the united states is a citizen. about you they added subject to

the jurisdiction their own for a reason. >> exactly. it's in there for a purpose. you know it's an amendment to the constitution of the united states. you wouldn't put that in there if you wanted anybody who just shows up to be-- has a baby to be a citizen, correct? >> that's correct. >> okay. do any of the others of you know any examples of other countries, any other countries that have something this broad just so we understand the way an average person thinks about these things? >> yes, i'll say that 32 countries have birthright citizenship just like the united states, including canada and mexico. >> okay, mr. o'brien, i think she said something misleading, when she said just like the united states, even though there are no european countries, are they when they have birthright citizen just like the united states? i think you told me it's not true. >> no, to the best of my knowledge at present there is

some kind of limitation on birthright citizenship and all that have it. >> thank you for tolerating me and send it back to the chair. >> thank you the gentleman from wisconsin. recognize the gentle lady from california. >> thank you. i think there's a quick video that i have. >> you don't need to be a genius to realize that trump is not talking about babies from norwegian v-- and since south africans are in the news, i would play that. a very for you mr. o'brien, is the equal amendment clause part of the 14th amendment, yes or no. >> yes, it is. thank you, and mr. mccotter, is the due process clause part of the 14th amendment, yes or no? >> yes, although each-- >> thank you. >> yes, i do know, thank you

for that. i ask those questions because i've heard no objection from this body, no quarrel, no disagreement with the fact that the equal protection clause and the due process clause are embedded in the u.s. constitution through the 14th amendment. in fact, this country's president that so many revere has invoked the due process clause on the regular as he should because it is his right and he is, in fact, showed the country how to process work when applied without prejudice, if only it would work for the rest of us look that, but i digress. the point is those tenants are here to stay with birthright citizenship. so i want to talk about the times that gave rise to the 14th amendment. it was 1868, it was the aftermath of the four-year divisive, destructive civil war that killed roughly three quarters of a million soldiers, 2% of the population.

a massive tsunami in soon to be a u.s. territory that killed 70 people. an aftermath of louisiana constitution which gave black men the right to vote ap a public education. you had louisiana, the louisiana massacre, where black people were murdered trying to vote. as people would say from my hood in l.a., the white folk went cray-cray and instead of all of that, white congressmen showed up in 1868 to debate the 14th amendment because in the midst of the madness and violence of the time it was that important and it passed with birthright citizenship. those three clauses. and these tenets forever changed this country. the 14th amendment is a pillar of american law in a good way and it has been for 160 years. everyone recognizes that it should not be touched, that it is sacrosanct and even justice

scalia. and his ideology i do not support. his read, 14th amendment, the due process clause and equal protection clause, as well as birthright citizenship is based on originalism and one should consider the political and intellectual climate beliefs and prejudices of the time it was ratified and the amendment should be protected. which is why it is worth revisiting 1868 because the origin story of the amendment is as applicable now as it was then. you had a democratic president impeached in 18 68 and a republican president impeached in 19 and 21. you had political violence in 1968 with the louisiana massacre and an insurrection that happened here in 2021, where capitol police were speared with american flags. you had a tsunami in hawaii in 1868 and a fire in 2023. an economic turn down, and the

eggs under trump. destructive, deadly, and let's be clear, that had immigrants back then, too. irish,jews, germans, italians, people who couldn't speak english, but they saw through the moment and passed the 14th amendment. and it's not like this country has not had moments where people have felt under attack. we've had jim crow, world war ii with the germans, mccarthy-ism, japanese in internment camps and war and birthright citizenship has survived that. now because not of war, but because people can't get a job in walmart. they are going to look for culprits, instead of the constitution. it's epitome of lazy, if they could put the 14th amendment in the constitution for hostile

times, we can keep it in law during ours. the climate is not different, it is the patriotism of the republican party that is different. and with that, mr. chair, i yield back. >> well, i would just observe for the record that the phrase white people be cray-cray is itself cray-cray and i will now recognize the gentleman from california. >> and also racist, i was wondering how long it would take the democrats to play the race card and i want to thank my from california. >> and the mass illegal migration over the last four years has made answering this question a necessity. have those illegally entering the country in defiance of our laws and are subject to deportation under those laws, can they be considered as having accepted the jurisdiction of the laws that

their very presence defies. i don't think it does s i mean, we know that that phrase subject to the jurisdiction thereof. we know that that means that former slaves are citizens, that was the stated purpose of the amendment, that's the plain language of the amendment, passed, by the way over the objections of the democratic party at the time. we know from the congressional debate that its authors understood its meaning to exclude foreign nationals who were merely passing through the country, but somewhere along the way it simply seems to have become assumed. so, my first question, beginning with you, mr. o'brien, have any laws been passed that specifically provide for birthright citizenship for illegal migrants? >> no, there have been none and one of the reasons that this interpretation persists is because of this wasn't an issue at the time that the case was decided, so it was left alone. >> how did it come to be that

it was simply assumed? >> nobody knows that. when i was there we did an extensive research project where we spent hours trying to find this. and couldn't find any discussing the import. we couldn't find any government directives to appear this was the rule. this started happening in the mid 1920's. >> mr. mccotter could you offer any light on this subject? >> i think that's property right. that's probably practicality. people weren't really paying attention perhaps and how we ended up with this-- >> no act of congress, no supreme court decision, obviously no executive order until a few weeks ago touching on this subject. >> mr. mcclin-- >> if i may jump in here. the unfortunate reality is along the case was

misinterpreted much the way that my friend professor frost misintemperatures it, too, some of the very broad language that is clearly-- instead of narrow and specifically identified holding, which is quite limited to people who are in this country and their-- who their children in this country, who have a permanent lawful residence in this country, at least-- >> and just kind of simmered in the background until we had this mass historic illegal migration and now we have to confront it. you know, the chairman says the issues belongs to congress and i'd say, well, sort of. obviously can't-- congress can't deny automatic birthright ff citizenship by statute if that's what the 14th

amendment guarantees. of course, neither could an executive order and congress would have to propose a constitutional amendment to the states if that's what the 14th amendment-- if that does not provide automatic birthright citizenship and no statutes have been passed and no other supreme court orders issued, it seems to me that no law would be needed to deny it. it was never extended in the first place. is that, mr. o'brien, is that essentially correct? >> yes, that is correct. it's been interpreted as addressing never the question that's before the court. this game before the court in order to determine whether park was an individual who fell into the privileged or prohibited classes under chinese exclusion

act, a treaty between china and the united states. >> they were here within the laws, within the jurisdiction of the united states by act of a ratified treaty. >> yes, that's exactly it. >> so, if that's the case, and wouldn't the president's executive order simply be restating existing law? >> i believe that's exactly what it does. >> mr. mccotter. >> that's what my amicus brief on behalf of the members of this committee says, sir. >> mr. cooper. >> i agree with that, congressman. >> i would assume that professor frost disagrees. that's it for me, mr. chairman, i yield back. >> thank the gentleman from california. i would recognize ranking member, the gentle lady from pennsylvania. >> thank you. you know, the effort to end birthright citizenship is hardly something new, the long time goal of anti-semitic and groups for decades, the bigoted

conspiracy theory that has inspired a lot of deadly terrorist attacks in several years, and hearing uncomfortable echoes of some of that here in congress in this day and age. you know, as we're listening to some of these statements, i was reminded of one of our predecessor's statements here, the great barbara jordan, who at a critical moments in our country's history talked about we the people. and when that document was completed in september of 1787, she, neither she nor i, nor professor frost were included in that document, but as she said through the process of amendment, interpretation and court decision we were finally included and as members of congress now, we should not sit here and be idle spectators, much less participants in the

construction of the constitution -- the efforts that we're seeing here today to try to reinterpret and twist the clear language and legislative history of the birthright citizenship clause would be such a din diminution, subversion of the constitution. professor frost, you've studied this for quite a long time and you, unlike some of the contributors here of project 2025. we've heard language subject to the jurisdiction of. why did they choose that phrase? >> the reconstruction congress told us clearly what they wanted to do there. they wanted to exclude the children of diplomates and ambassadors and they also discuss at length the children born into native american tribes, sovereignty, their own courts and laws. >> it did strike me the inconsistency in claiming that undocumented immigrant is not

subject to the jurisdiction of the united states when they are, in fact, subject to our criminal code, paying taxes and et cetera. can you talk about that and talk about how that relates to the issue of the exception for diplomates and their children? >> yeah, sure. of course, all children of immigrants, including, and all immigrants, including undocumented immigrants are subject to the laws of the united states. president trump knows that better than most in that he is seeking to deport and enforce the immigration laws fully against this group and also add something i mentioned before, the reconstruction congress is well aware there are people in the united states in violation of the law, those are the enslaved african-americans brought to the united states in violation of federal law and of course, the citizenship clause is intend today provide them with citizenship despite the fact they were there in violation of u.s. law. >> i noticed you're reacting to some of the testimony about the u.s. being some kind of outlier with respect to birthright

citizenship or having-- it looked like you might have a different interpretation. can you expand on that. >> with all due respect to mr. o'brien, a deep expert in u.s. immigration law, i don't think he's familiar with the laws of the 32 other countries that have birthright citizenship, automatic birthright citizenship, if you're born in canada, you're canadian citizenship, that's why senator ted cruz had to denounce, he was born to a u.s. mother. >> and a strange burden on our maternity wards and our states, every time someone is born, they had to determine the citizenship or the immigration status of their parents. and how would that play out? i mean, does the delivery nurse have to ask which borders a person came across, whether or not they checked in, whether they filed an asylum claim or

whether maybe they just overstayed their visas to study here if they were, for example, from south africa? do you have any thoughts on that? >> it would impose enormous bureaucratic burden on hospitals, on state agencies, on our already overburdened immigration officials and on parents of newborn children. >> and many people lack documentation of their citizenship or immigration status if they're lawful permanent residents and they may not be able to show that. we're asking people the time of their childbirth, to determine this or when they're born-- >> i think it's interesting that this this is hardly the open and shut case that our colleagues suggest. and senator cruz, legally scholars on both sides, et cetera. with that i see my time is

expired. i would have unanimous consent request, to enter the leadership conference on human rights. >> without objection. >> i yield back. >> thank the gentle lady from pennsylvania. i'd like to insert in some from the gentle lady from texas, a collection of quotes i fly in and out of that airport, and as chair of the commission regarding immigration in the 1990's which smee makes very clear her position that the enforcement of borders security is important and the importance of having immigration policy that works is important, and we should not have amnesty, that we should -- immigration should not be a path to public benefits and clear in her language about that and numerous other quotes from the gentle lady from texas ms. jordan and without objection insert that into the record.

and recognize the gentleman from missouri. >> thank you, mr. chairman, and thank you to the witnesses for being here today. my colleague from pennsylvania mentionled the term white nationalism and would i remind everyone of the context of the 14th amendment that the original white nationalists, southern democrats, fought a civil war to deny blacks their constitutional rights, to deny the very humanity and in the wake of that civil war, sought to deny them of the rights of citizenship as well and in that context, the 14th amendment was enacted to make sure that white nationalists southern democrats not deny black slaves, former slaves of their rights and therefore made it clear they're citizens. >> and mr. bingham, citizens

born in the jurisdiction of united states, of parents not owing allegiance to foreign sovereignty. another author of the 14th amendment, senator trumbull stated that subject to the jurisdiction of the united states and the citizenship clause meant not owing allegiance to anybody else. do aliens, and particularly illegal aliens, owe allegiance to, exclusively to the united states or do they still bear allegiance to their home countries. they would still bear at least partial allegiance to their home country. >> and therefore, you know, in part, you know, foreign ambassadors, diplomates, do not have children of foreign ambassadors and diplomates do not have birthright citizenship. >> and lawful permanent residents could somehow be included within the birthright

citizenship clause and i think the response to that is that one can recognize those individuals do sufficient allegiance because they're here with the consent of the united states. >> you know, an example of, you know, considered the absurdity of all-out birthright citizenship. >> el chapo' wife traveled to california to give birth and immediately returned to mexico under biden's policy that the children of a drug lord have rights to american bank accounts and indeed obtained american bank accounts. did el chapo's children, did they own full allegiance to the united states? >> they would not, no. their children would have been at least partially allegiant to their parents' home country. >> so i think it's said in your

testimony it's very clear that this idea is full allegiance is pivotal here. >> it was the widely understood understanding of the jurisdiction clause at the time it was ratified, yes. if i may just briefly respond to the claim to some of the arguments in this area are inherently racist in some way, i would point out, justice john harland, the sole dissenter, the patron of interpreting the constitution as color blind, he decented and said that long had never become a u.s. citizen. >> and likewise, if you recall, it was what, filer v doe in which justice brennan in dictum in a footnote opined that anyone born physically in the

united states be a birthright citizen. does dictum have the same force of law as a holdening a case? >> it doesn't. and also in that footnote justice brennan said jurisdiction, the phrase jurisdiction is bounded only if at all by sovereignty and allegiance which is what we've already talked about. >> which is what you're arguing today. thank you. >> the gentleman yields? all right. i appreciate that. i will now recognize myself for five minutes and i would just ask, professor frost, we talked earlier about the extent to which we've got the record replete with examples of tourism, birth tourism, in which there are mal actors who are profiting by moving people in or transporting people into the united states to then deliver babies.

so we have georgetown law report talking about women from foreign countries, china and russia pays tens of thousands of dollars to temporarily relocate to the united states, give birth and often return. we have that happening at the southern border with some regularity, in mcallen, laredo, el paso and throughout texas i can personally attest personally. do you believe those of those children regardless why they end up on american soil, those children are in fact u.s. citizens under the law? >> i'm so glad you asked that because there's actually there's an actually a federal regulation, which bars people to come to the united states to give birth and counselors the authority to-- >> the individuals, that's not the question. the question is these babies are born on american soil, these babies are born on american soil, brought here for profit. are they citizens? yes or no. >> yes, they're citizens and if you have a problem enforce the regulation. >> the question, in fact earnings they're citizens under

your interpretation of the law. >> and mr. mccotter, you noted that justice harland was the dissenter. >> yes. >> and also a dissenter in-- a threshold question here with respect to the wong, which is often cited as the basis, now, 130 years hence, for these individuals being viewed as citizens by now, in this instance, the most pernicious models where people are profiting for bringing people into the united states to have babies, exploit our laws go back to our countries and exploit our laws for citizenship they're deemed citizenship based on an opinion 130 years ago, yes or no, mr. mccotter, do you believe that wong stands for that premise? >> i do not and i cite support for that in the brief. >> you believe that it is limited to at most an lpr type status under today's law? >> right, here is a quote long

by its fact and language born of warrants at the time of birth in the united states lawfully and indeed or permanent residents from a professor at nyu. >> mr. cooper, do you share that view? >> i do share that view and i would point out again, that long itself condition it's irrespis tibl conclusion from the 14th amendment. the ancient and fundamental rule of citizenship by birth within the territory in the allegiance and under the production of the country, which was premised in that case upon the parents be lawful permanent residents, allegiant to this country. >> so to be clear, mr. cooper, you do not believe that wong's opinion extends certainly at a minimum beyond, again, what we would characterize under today's law as an lpr status

individual? >> no, it clearly just didn't have anything to do, as mr. o'brien has said, with illegal aliens or aliens here who may be here lawfully, but only temporarily. >> are you aware of any opinion by the united states supreme court that has extended beyond that interpretation since? >> no. >> mr. mccotter, do you agree with that? >> i agree, yes. >> mr. o'brien, do you agree with na? >> i do. >> and so now having, i think, established that that is in fact the state of the law with respect to and everything since. my question, wong itself correct? we have an opinion by mr. justice harland. justice lahrhand who is the dissent in plussy. was plessie later overturned. >> yes. >> mr. mccotter. >> yes. >> it was overturned?

>> yes. >> now we've got wong. is wong itself correct on the law with respect to even lpr's under the interpretation of the 14th amendment? i would ask mr. cooper your opinion on that. >> well, i will tell you, mr. chairman, that i think there's significant support for the conclusion, the holding in the debates under the citizenship clause, but one doesn't have to conclude that it is correct in order to uphold this executive order because the executive order is entirely consistent with wong. >> mr. mccotter, do you have anything to add to that, mr. o'brien and then i'll yield my time. >> i would not believe it's correct and go so far the holding itself should be limited to the terms that were before the court, which had to do with a treaty with china which is no longer in existence. >> i appreciate it, gentlemen,

we now have another member of the committee and i will recognize my colleague and my friend from texas, mr. gill. >> thank you, mr. chairman. 160 years ago democrats were asking us if it weren't for slavely, who would pick our cotton and today they're asking a similar question, which is if it weren't for mass migration, who would pick our avocados. it's a similar pattern that they've established and to say that the united states is not in fact better off by importing a massive class of what is virtually serf labor which undermines our cultural fabric and our government as well. i'd also like to point out the admission that we need more and more unvetted illegal aliens pouring into our country is also an admission that the goal or one of the goals of our colleagues on the other side of the aisle is explicitly to

reduce american wages, because that's exactly what they're doing and what they're saying they're doing, whenever they talk about bringing in cheap labor. we're talking here about birthright citizenship and which is provided an enormous loophole in our immigration system and has facilitated the mass importation of illegal aliens through this current loophole, upwards of 300,000 people a year are granted automatic citizenship in the united states despite having being born to parents who have no ties to our country and who are here illegally and also, due to failures in our legal immigration system, these individuals then use their citizenship to sponsor their illegal alien parents and others for a green card which creates a never ending cycle of people coming into the country who have no business being here at all. we've now gotten to the point

where the percentage of america's foreign born population is quickly approaching 15% which is the highest it's been since at least 1910. mr. o'brien, i'd like to start with you, with a couple of questions, if you don't mind. under the 14th amendment native americans due to tribal allegiances were not granted citizenship, is that correct? >> that's correct. >> got if. and the children of foreign diplomates were expressly excluded from birthright citizenship. >>. >> that's correct. >> is it safe to say the authors of the 14th amendment saw a difference between total allegiance to the united states, other than subject to the legal jurisdiction to the presence in the country. >> yes, i think they made that very clear in the debates. >> got it. in your opinion based off this the authors of the 14th

amendment, consider that an individual whose parents don't have allegiance to the united states be granted citizenship? >> no, i think the holding was that only individuals who were lawfully present in the united states to transmit citizenship to their-- >> i should say only the children born of people legally in the united states citizenship at birth. and my colleagues contend that essentially any person born here regardless of legal status or the legal status of their parents, have a constitutional right to become a united states citizen. have you seen any evidence to suggest that authors of the 14th amendment would support that view? >> no, and i don't think the authors of the opinion in killmark would have supported it either. >> go it. thank you, mr. chairman. yield back my time.

>> i thank the gentleman from texas. ... >> yes, i seek unanimous consent to introduce barbara jordan's orbittary and spoke out to citizenship, i quote to deny i quote to deny birthright citizenship would derail this engine of american liberty. >> without objection. and i would ask consent to enter into the record the amicus brief submitted by a number of house colleagueses as drafted by mr. mccarter. i would also like to introduce into the record a note that was written by amy swear from heritage f foundation that was written extensively on this issue and also an op-ed that was written by mr. cooper along with pete patterson on this subject as well.

without objection i will insert it into the record. that concludes today's hearing. we thank the witnesses for appearing before the subcommittee today. what without objection, the hearing is adjourned. [inaudibleou conversations] [inaudible conversations] [inaudible conversations]

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