president johnson cap kennedy's cabinet in place and proceeded to push through legislation on civil rights. he also declared a war on poverty in america. watch our series "first 100 days" saturday at 7:00 p.m. eastern on american history tv on c-span2. >> c-span -- democracy unfiltered. we are funded by these television companies and more, including comcast. >> you think this is just a community center i know, it's way more than that. >> comcast is partnering with 1000 community centers so students from low inco families can get the tools they need to be ready for anything. >> comca supports c-span as a public service along with these other television providers, giving you a front row seat to democracy. >> a house judiciary subcommittee held a hearing on

birthright citizenship in the united states, analyzing the text of the 14th amendment to the u.s. constitution, which guarantees that right. during the hearing, representatives and witnesses discuss the specific text and how it could be interpreted. this runs about two hours. >> subcommittee will come to order. without objection, the chair is

able to clear recess at any time. i recognize myself or opening statement. as supreme court justice brandeis once vote, the most important office is the one that [indiscernible] this hearing is on an issue foundational to our republic. who is an american citizen by birth? section one of the 14th amendment grants citizenship to those born within the united states and subject to the jurisdiction thereof. it is the latter class, subject to the jurisdiction thereof, that we will examine today in part. our inquiry is what was the original public meaning of the clause? the 14th amendment was drafted to rectify the terrible decision in the dred scott be sanford case by recognizing former slaves as rightful americans. the jurisdiction clause as originally understood grants birthright citizenship only to children whose parents have full

, exclusive allegiance to the united states. constitutional text and united states history shows that children of illegal aliens are not citizens by birthright under the 14th amendment. for decades, proponents of automatic birthright citizenship have claim 14th amendment bestows american citizenship on children born to illegal aliens. this is a blatant misunderstanding resulting in birthright citizenship serving as a driving force of illegal immigration in the united states as many illegal aliens and temporary visa holders no they can reap the benefits of their child's citizenship. president trump's first executive order restored the 14th amendment to its original meeting -- meaning. some of the most respected scholars agree that the constitutional interpretation outlined in president trump's executive order. some of the scholars include those here on this panel today. our witnesses will dive in to the 14th amendment, but i will give you a brief version.

drafters of the 14th amendment understood not to grant citizenship to persons owing allegiance to any foreign sovereignty and decided after ratification. the supreme court held that jurisdiction to the 14th amendment means not merely subject on some respect for degree of jurisdiction to the united states but completely subject to their political jurisdiction and owing them direct and immediate allegiance. of course illegal aliens and legal temporary united states residents do not owe complete and immediate allegiance to the united states, and therefore, their children are noncitizens by birthright under the 14th amendment. i'm sure we will hear a lot from colleagues on the other side of the aisle about supreme court precedent as well. let us make one thing clear at the outset -- the supreme court has never held that children of illegal aliens or aliens in the united states temporarily are entitled to birthright

citizenship. president trump's executive order is consistent with birthright citizenship. 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 constitutional subcommittee, and i hope you can keep our focus on the text and history of the 14th amendment, but no doubt, some policy implications will come up. it would be a disservice not to mention some of those. in addition to twisting constitution and court precedent , deferring automatic citizenship is a bad policy. it bestows on children of lawbreakers who entered the united states without the consent of its people, most rewarding them for trespassing onto our country's soil. red context, children born to illegal aliens are born each year. in 2023, up to 200 50,000 people were born to illegal aliens in 2023, which accounted for 7%

total births in the nation that year. moreover, it further strains government programs that are already strained. for example, in terms of supplemental nutrition assistance, which provides school meals, americans shall have $5 million each year. according to a 2023 report, if one looks at the amount illegal aliens and are u.s.-one children are projected to consume, the american taxpayer foots an even larger bill. think of the july 20, 2020 -- 2024 report of the congressional budget office that projects the federal government is expected to spend 177 billion dollars in welfare benefits to illegal aliens and their u.s.-born children over the next 10 years. 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 suts 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 for the united states does not want their child born in the u.s. to be a citizen and their situation is representing a foreign power. protecting the embassy itself. only the real discussion they

had the they suggested to the 14th amendment and they pointed out in many discussions that the indians were sovereign powers but then we had treaty relations who were not subject to u.s. law they had their own tribal courts in laws and at that time they wanted to be excluded and they did not want them to be automatically included. i should notice that there is now a federal law that gives the americans birthright citizenship the final group i'm happy to say we have never encountered the. >> i will stop you because i have another question here. one of the lawsuits was brought by an individual in my state. she was born and raised in el salvador. she fled the country after a violent and abusive situation. she has received a work permit while her application is pending she has lived in washington

state since 25th teen. she is pregnant with her second child to is due in july. i want to bring this back to the real impact of what would actually happen. this deep sense of membership in our society. a collective commitment to a shared value and opportunity contribution. what is the impact on real life americans across this country? to eliminate birthright citizenship would be to create a permanent underclass, a system to very results of reconstruction congress intended to end. thank you so much. i yield back, mr. chairman. >> thank you. i now recognize a committee chairman. >> thank you for holding this hearing. i would yield my time to the gentleman from arizona. >> thank you for yielding. i will ask each one of you a question. this is a real scenario. they have one hospital or five

-- 4550 people. a small maternity unit. many times the beds, every one of them is occupied by a mom to be who was illegally crossed our border. usually into a reservation and they go in and they have a baby and then they both depart to go back south across the border. i guess my question for each of you is this, under the original meaning i will make it clear. the 14th amendment, ms. frost, is that child a citizen of the united states of america? >> yes, of course. >> thank you, appreciate that. mr. cooper.

>> no, congressman, not under the citizenship clause of the 14th amendment. >> i agree, mr. cooper, that is correct. >> she is not lawfully president of the united states, the mother >> so, let's consider, we have a very, very disparate interpretation. we have this position and i do not want to misstate the original allegiance or the jurisdiction thereof displaced the allegiance requirement it there is no more allegiance requirement. is that a fair description of what you are saying? at least on that portion? >> i'm not sure what you referred to. there was never an allegiance requirement. >> that is what i'm getting at the you believe there was never jurisdiction there that required allegiance to the sovereign. i want to clarify that.

when you get that, why is it the court said that the plaintiff or the appellate in the case was actually a citizen of the united states. >> the supreme court rationale is a little hard to follow to be honest. but it does say that the parents there are lawfully present with the consent of the sovereign which is united states. the equivalent of our -- >> they are talking about lawful presence, and attention which has a legal term, you are intending to live there, stay there be part of that community. i am baffled by the notion that if you cross through the reservation and you go to the

hospital in yuma and you have a baby and your intention is to immediately leave and go back home, you are not legally present in the united states nor do you have an intention to be here. why then does that baby he entitled to birthright citizenship. >> sorry. congressman, that they be is not entitled to birthright citizenship did i think it does not in any way support the claim that it is entitled to birthright citizenship. as i mentioned previously, the issue of that case was very clearly limited to aliens who had established a permanent and lawful domicile in this country. whether you think it is sufficient or not, it clearly

does not suite within it people that have come into this country illegally. i would long point out the ark itself said that there are some certain irresistible conclusions withdrawn from the citizenship clause including that the 14th amendment affirms the engine and fundamental rule of citizenship by birth within the territory in the allegiance and under the protection of the country. the reason they concluded there. >> i have to go there. it actually segues from that nicely. that is one of the things, actually, she indicated this, in the indian tribe case, when we look at that, it is because having an allegiance to the tribe. that is very different than some

of the crosses over as a baby and then returns to their native country. >> yes, that is true. they confirmed that long-term residents was inattention by someone who was working toward citizenship and wanted to be a long-term member of the community of the united states. pointing out that there were two qualifications. the individual attempting to transmit citizenship had to be lawfully president the united states with the 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 simple obligation to obey the laws. >> i think the witness and i will now recognize the gentleman mr. coleman. >> i want to go back to where you were right there. so, and i think he said that

this as well. your interpretation is to be lawfully present with consent of the sovereign. that is the equivalent of a lawful permanent resident is that correct? >> that is correct, yes. >> 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 that has a permit to request permission. they are lawfully present. >> someone with the work visa, they could go on for years and years. you are saying that it is not lawfully present. >> i said a person that has been at it in the visa classification

so on and so forth is lawfully present while they are in compliance with the terms of immigration laws. >> i agree. but they are trying to restrict them from green card. not restricted to green card. 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. they use the definition you just said which would include visa holders and yet the executive order expressly excludes visa holders. let's move to the second point. allegiance.

this is what the subject of the jurisdiction thereof that all three of you have talked about relating to allegiance. i would love to see 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 one of the things that you said? >> i think that only a person or at least an indian under the view of the framers citizen ship clause that had been assimilated and left the reservation and therefore had essentially a person's allegiance to the tribe and had shifted their allegiance to the united states just like others. >> if you move off of a tribal reservation and you move across the street at the time, something here, moving across

the street, then, all of a sudden, your allegiance has changed from the indian tribe, native american tribe to the united states. that is what you are saying. do you disagree with that? >> i do disagree with that. >> is there a time requirement? you must live on the reservation for one year, two years, five years. green card holders of course are also citizens of other countries and, yet, somehow in this definition of allegiance a green card holder has more allegiance to the united states and that person would to by necessity, by definition to a foreign country.

that seems like a pretty full statement to be asking the supreme court. and what scares me about it as an american jew and jews are often accused. the situation where the government has to determine which country in the individual has more allegiance to. the country that they had immigrated to and even 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 in states rights which sit here and say, yes, it is the government job to create a definition of allegiance which

somehow is required in order for birthright citizenship. now, look, you may not like the example, birthright tourism you call it, somne coming into the united states having a baby and then leaving. you don't agree with that. that is fine. this is clear in this definition that you are providing is unbelievably vague and very, very careless. i look forward to the courts rejecting it. >> as individuals that recite pledge of allegiance down on the floor of the house of representatives, i think that those must understand what allegiance is. wearing the uniform of our armed forces. i think that they are fully aware of what it is. i would also note that one of the very few responsibilities is

making this determination as to who should be citizens and who should be in our country. >> thank you, mr. chair. >> i understand more than anyone that we are a nation of democrats. but, there is a difference, a difference between giving citizenship to the children of slaves, the children of those subject to the middle passage, the children of those who are once considered property and giving citizenship to the children of people who cross the border illegally staying in taxpayer luxury hotels. free fights around the country. three square meals a day. there's a big difference. my great-great-grandfather was born in louisiana. he had to join the union colorguard to gain his freedom. by morphing the citizenship clause into something it was not meant to be. it is demeaning.

>> my father is a retired colonel. a direct descendent of a slave geared they earned the right to be the country and pass down to his ancestries. the purpose of the 14th amendment for the executive order affects citizenship at the clause to the amendment for children of illegal or illegal aliens. allowing birthright citizenship to stay up not just black americans, but every single american citizen that have to earn it the right way. >> you are a u.s. citizen or you are not. >> cheapening what it means to be an american citizen.

>> chipping away at the basic value. they intend to be the truth. it said on the view that we have to wrap illegal immigrants in this country because who else will claim did we hear it all the time. we know that american citizens are the majority of those picking our cross, we know what you are insinuating. all of this must end now. mr. o'brien, earlier you brought out first tourism and how it's an issue of national security. could you kind of expound on that and why that is an issue? this is near and dear to my heart. >> if we give u.s. citizenship to absolutely anyone who was born up on our soil, it takes united states out of control of who becomes a u.s. citizen had since everyone here knows, people -- that puts us in a

position where we could be allowing people that are citizens of adversary nations to be coming here, having children who gained u.s. citizenship and then are trained to be adversaries of the united states put in a position where they can get jobs with security clearances, they can join the military, they can work in the defense industry which they would not otherwise be able to do. >> people that have entered our country that are our adversaries , how they come here and had children? >> yes, a massive number of people that have come here. not just the last four years, 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? other countries around the world this would never happen anywhere else, by the way. >> can you name a country that has behaved like this and what

has been the outcome of this type of behavior? a sustainable model given the number of people that have been in this country especially over the last four years. >> it is not a sustainable model a number of the latin american countries and most of them get away with it after they were attempting to attract migrants in order to build their industries and build the number of people living in those countries. this is something that is clearly nonexistent. >> they throw that in our face and they say we have to have open borders in order to be nice to people. i just want to tell the left, a bunch of neighbors right here in our country that are americans. your neighbors are the homeless veterans that you drive by to work. our neighbors are the teens running away from about home environment. your neighbors are the families that just got evicted from their apartment. what do all of those neighbors have in common westmark they are all americans. let's use our american taxpaying dollars to put americans first.

newsflash, this is why president trump is our president geared because it is past due that we put the american citizen first and once we resolve our issues here, i am a christian, by god let's help everybody else. at this point we have enough problems to fix in our own country and this must stop. thank you for your time. >> thank you. i will now recognize the gentle lady from vermont. >> thank you, mr. chair. a lot of different issues about interpreting the constitution. at times i know it feels a little bit like a law school lecturer. i would like to just kind of cut through and clearly focus on something that i find deeply troubling. what republicans are offering is a plan to redefine who gets to be american. it is a big step towards a country where american itself applies to only a privileged few

a country where future and past generations are relegated to an underclass status. they are trying to stake out who is a real american and it will leave a whole lot of evil out. and this, i think, is a frightening road to go down. the arguments that we have heard have been with us since our founding geared as you pointed out, professor, the decision change the common law understanding of birthright citizenship for all. it enabled slaveowners to use the law to take away citizenship , to take away identity, to take away the freedom of black people, the 14th amendment and the civil rights act of 1866 for a direct response to dred 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, straightforward language of the

law could possibly or could actually be used to deny citizenship for often, people of color. did the framers of the 14th amendment intended to extend birthright citizenship to the children of slaves and other noncitizens? >> yes. could not have been clear. their language and discussions. they said of course they wanted to overrule dred scott which includes giving citizenship to all americans including those who had arrived legally because they had been legally imported. the reconstruction congress says we want to have them have citizenship the second group discussed was the children of immigrants. in particular the children of chinese immigrants. that was the intention. they achieve that through clear language. >> thank you. through clear language. ....

>> we are a nation of immigrants. a significant majority of us price back, other than native americans trace back our lineage to one american immigrant, grandparent, 5% of our military are children of immigrants. if we have a baby we have to provide proof of citizenship. imagine a generation from now. you would have to show the lineage. this is what the reconstruction congress wanted to prevent and it is the result dred scott wanted. >> say a person's grandparents came to this country from central europe in the 19th century. an investigation will -- revealed the grandparents used false names at ellis island.

does that mean based on what my colleagues would be saying that the visit day -- the present day descendants are not citizens? >> the logic of the position is every single person who consider themselves american would be under scrutiny and any flaw in their immigration history back to 1885, many people violated the law in 1885 and all of those people come of their citizenship questioned under the executive order and have their citizenship stripped. >> doing away with birthright citizenship is an intentional choice to give this president massive power to dictate who is and isn't an american. i yelled back. >> i never recognize the gentleman from north carolina. >> everyone serving on the panel

today. the issue of birth tourism stands out as a glaring example of a loophole taken advantage of. mr. o'brien, in your testimony you shared a little bit ago with mr. hunt about the national security risk associated with widespread birth tourism. what are the top countries taking part in this practice? where did they come from? >> the largest is china. the second largest is india. and then it drops off from there but there are large numbers of people from a large number of countries we should have concerns about. >> aside from the national security risk you addressed, this practice puts many of those involved in coming here in harm's way. can you talk about how the birth tourism can harm the expectant mothers involved? >> certainly. it is not advisable according to all of the medical personnel i

have talked to, for women in an advanced stage of pregnancy to do a flight from china. we have seen along the southern border people who are traveling in harsh environments, attempting to cross the rio grande while expecting a child imminently. this is a danger to the mother and the child. >> while we are here, i'm curious about the comparison between how the u.s. treats the concept of birthright citizenship 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 does not. it is something that is typically associated with the united states, latin america, canada and other countries with truncated variations of it. >> how would you see -- say america compares to the eu in

regards to this issue? >> most countries with birthright citizenship have restrictions compared to the united states. >> i would like to hear from you about how congress can play its part in this conversation. it is one thing for executive orders, it is another for court decisions and interpretations. how can congress support president trump's executive order? >> i authored an amicus brief on behalf of many members of this committee and we submitted that in almost all district court proceedings so the court is aware of the member's views on the historical understanding of the jurisdiction clause. that is one thing congress could do. they could hold a hearing which we are having now. >> i'm proud to be a cosponsor of the birthright citizenship act of 2025 which clarifies

which individuals automatically receive american citizenship at birth. i have told folks if there is ever a time for us to clarify and codify that time is now. would you deem it necessary that congress clarify the question regarding the citizenship clause or should it be left to other citizenship -- other organizations? >> citizenship is left to congress except as dictated by the 14th amendment. the courts can interpret the amendment but it is exclusively a congressional prerogative. >> so we have an opportunity now , to take some action on this. with that i yield back my time. >> i will now recognize the gentleman from maryland and the ranking member of the committee. >> thanks to the witnesses for being here and special greetings to professor frost my former

colleague. i want to start with you because there has been a flurry of litigation about the onslaught of unlawful executive orders coming down from the administration. this executive order appeared in four different courts. as i understand it, all four of them worked to stop it either through temporary restraining order or preliminary injunction. they were appointed by presidents reagan, george w. bush, obama and biden, two republicans and two democrats. here is what they said. here is the judge nominated by president reagan, citizenship by birth is an unequivocal constitutional right. the -- one of the principles that makes the united states the great nation 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 government cloaked a constitutional amendment under the guise of an executive order in bed's and cons additional area of the constitutio is not something we can play policy games with. this judge says, the plaintiffs are likely to suffer irreparable harm. here is a district judge nominated by president biden to the court in my home state of maryland. the executive order interprets the citizenship clause in a member -- manner the supreme court resoundingly rejected and no court in the country has ever endorsed. check out judge so broken, nominated by president obama who said the 14th amendment says nothing of the birthright citizenship parents. in order to -- when the supreme court construed the text was

rejected. no federal judge to my knowledge has upheld this executive order against legal attack. tell me why you think there is unanimity across the spectrum among the judges. >> first of all, the language is clear. s. there are big provisions of the constitution. the leaders of the writing of the first section of the 14th amendment were republicans from ohio. john bingham was the primary author of the citizenship clause by judge black who was the 14th amendment's james madison, the founder who worked to realize the promise of the bill of rights.

u.s. senator benjamin wade insisted on making the citizenship clause perfectly clear to avoid backsliding in times of high partisan feeling. he said i have always believed every person of whatever race or color who was born in the united states was a citizen, but by the decision of the courts there has been doubt thrown over the subject and if the government should fall into the hands of those opposed to the scum of those who have been accustomed to take a different view, they may construe the provision in such a way that we do not think liable to construction of this time unless we fortify and make it very strong and clear. if we don't do so, there may be danger that one party spirit runs high it may receive a different construction from that which we come of founders, put upon it. i wonder what you think senator wade might be saying about the debate today and whether it is ok to throw away the first sentence of the 14th amendment.

>> he was remarkably prescient. he foresaw a future in which a future political party would want to take away citizenship and voting and political part of -- power from americans. >> i'm sorry to rush you but the original this remains perfectly clear. they wanted to stop the government from reconstituting a racial or ethnic caste system based on the inheritance of a subordinate or superior legal status of one's parents. in post-reconstruction american nobody would become a slave or serf or legal outcast or prince or princess or king or account at birth because everybody here would attain equal citizenship at birth. am i capturing it correctly? >> you are. >> i think the ranking member and i will now recognize mr. grothman for five minutes.

>> i would like to ask one of the three gentlemen on the right here, i had another committee hearing so i'm sorry if i'm going over things we already dealt with but it says in the 14th amendment that that citizens are people who are all persons born in the u.s. and not subject to any foreign policy. -- foreign power. they must've 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 that in my opening remarks. i think the best understanding is that it referred to children who'd be deemed citizens of their parents own country at the moment of birth. >> ok. right now in this country if your wife goes to italy and has a baby, she becomes an italian citizen? would anybody say that? >> i'm not sure what italy's laws are but i would defer to

mr. o'brien. i can say at the time of the 14th amendment, english citizens born in the u.s. are deemed english and not be entitled to birthright citizenship. >> ok, there are a variety of other countries that have some form of birthright citizenship, none of them in europe. canada. but you mentioned, mr. o'brien, that is a limited type of birthright citizenship. can you elaborate on that? that? >> yes, in most of those countries there are restrictions required at least one of your parents to be their lawfully in some cases birthright citizenship combined with familial lineage and i can say the united states is the only place that does it as it's done

here. >> if you would interpret the way you would want to interpret it, the united states would be a clear outlier? >> yes. >> outlier in 1866? >> well, yes, because at this point most of the countries in the world were monarchy and considered you the to be something akin to property, permanent allegiance so regardless of where you were born, you could still be considered a depending on how you left the country. >> we have records at the time, 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 reconstruction

time. frankly, at that point in time there was relatively small number of people in the united states and stated in my opening remarks, the concept of illegal alien is not the same as it is now. >> is there any indication as that time that in the hypothetical that -- was there any indication that the drafters of the amendment believed that if somebody just came here as a visitor, whatever, we talk about, you know, people coming from china, san diego, whatever, the equivalent would have resulted of people being a citizen, is there any evidence of that in 1865 -- >> no, the court was very explicit when it said it was referring to people that were residing in the united states with the permission of the government. >> there's no evidence with any of the debaters, we are opening the door to become american

citizens, anybody who gets off a boat? >> no, i think we stop and think about the way the amendment was drafted. if that's what they wanted, they could have left the qualifying statement out, anyone born in the united states is a citizen but they outed subject to the jurisdiction thereof 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 there if you wanted anybody who just shows up to be, baby to be a citizen, correct? >> that's correct. >> okay. 32 countries have birthright citizenship including canada and mexico.

>> when you say just like the united states even though european countries, birthright citizenship countries just like the united states, i think it's the untrue. >> to the best of my knowledge, there's some kind of limitation on birthright citizenship in all of the places that have it. >> well, thank you all for tolerating me. >> thank you, mr. chair and ranking member. i think there's a quick video that i have. >> you don't need to be a genius to know that trump is not talking about babies that come from norwegians bajajas.

>> is equal protection part of the 14th amendment yes or no? >> yes, it is. >> thank you. is the due process clause part of the 14th amendment yes or not? >> yes. >> thank you. yes, i do know. thank you for that. i ask those questions because i have heard no objection from this body, no disagreement with the fact that the equal protection clause and the due process clause are embedded to the 14th amendment, in fact, this country's president that so many revered has invoked the due process clause on the regular as he should because it is his right and he has, in fact, showed the country how due process works when applied without prejudice if only it would work for the rest of us like that but i digress but the point is both tenants are here to stay with birthright citizenship. i want to talk about the times that gave rise to 14th

amendment, 1868. aftermath of civil war that killed roughly 3 quarters of a million soldiers or 2% of the population. massive tsunami, the aftermath of the 1862 louisiana constitution which gave black men the right to vote and public education. you had louisiana, the louisiana massacre where black people were murdered trying to vote. people would say from my hood in la, the white folks went cray-cray. white congressmen showed up in 1868 to debate the 14th amendment because the in the midst of the madness it was that parent and it passed with birthright citizenship. those 3 clauses. and these tenants forever changed this country, the 14th amendment is a pilar of american

law in a good way and it has been for 165 years. everyone recognizes that it should not be touched, that it is sancrosinc and even scalia and includes protection clause as well as birthright citizenship was based on originalism, traditionalism and once 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 1868 and republican president impeached in 1921. you had political violence in 1968 with the louisiana massacre and insurrection that happened here in 2021 where capital

police were speared with the american flag, you had a tsunami in hawaii in 1968 and fire in 2023, you had economic turndown in 1868 and $15 egg under trump right now under 2025. same environment, toxic, hostile, destructive, deadly and let's be clear, they had immigrants 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, mccarthyism, the japanese and internment camps, birthright citizenship has survived all of that and now, not because of war, but because somebody can't get a job at wal-mart because of

xenophobia, fragile ego we are going to look for culprits instead of protecting the constitution. it is the epitome of lazy and if they could put the 14th amendment during the constitution during hostile times we can keep it in law during ours. the climate >> the climate is not different. it is the patriotism of the republican party that is different. with that, i yield back. >> i would observe for the record that the phrase white people be cray-cray is in itself crazy. >> and racist. i would like to think my calling from california for satisfying that curiosity. i think we can thank the democrats under joe biden for bringing this issue to the forefront. the mass illegal migration over the last four years has made

answering this question a necessity. have those who have illegally entered our country and are subject to deportation under those laws, can they be considered as having accepted the jurisdiction? i don't think it does. we know that phrase subject to the jurisdiction thereof, that means former slaves are citizens. that was the stated purpose of the amendment. that is the plain language of the amendment passed 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. somewhere along the way, it simply seems to have become assumed. so my first question, mr. o'brien, have any laws been passed that specifically provide

for birthright citizenship for illegal migrants? >> there have been none. one of the reasons this interpretation persists. it is because this wasn't an issue at the time the case was decided to what was left alone. >> how did it come to be that it was simply assumed? >> nobody knows. we did an extensive research project where we spent hours trying to find this and we couldn't find any commentary on the decision discussing the import. we couldn't find government directives indicating that this was the rule. it appears to have started happening in the mid-1920's. >> and you -- can you offer any light on this subject? >> i think that is probably right, probably practicality, people weren't paying attention and that is how we wound up -- >> no act of congress or supreme court decision, no executive

order until a few weeks ago. touching on the subject. >> if i may just jump in, i think the unfortunate reality is that the case was misinterpreted. much in the way that i think my friend professor frost misinterpreted, with the broad language that is clearly a dicta instead of the narrow and specifically identified holding which was limited to people who are in this country and who they are children in this country. who have a permanent, lawful residence in this country, at least -- >> and it simmers -- >> establish allegiance -- >> it simmered in the background until we had this massive historic illegal migration and

now we have to confront it. the chairman says the issue belongs to congress and i will say, sort of. congress can't deny automatic birthright citizenship by statute if that is with the 14th amendment guarantees. congress would have to propose an amendment if that is with the 14th amendment means. if the 14th amendment doesn't provide automatic birthright citizenship and no statutes have been passed, and no supreme court order issued, seems to me no law would be needed to deny it. it was never extended in the first place. is that correct? >> that is correct. the case is not before the court. it came before the court to determine whether one can mark

was an individual who fell into the privileged or prohibited classes under the chinese exclusion act which itself was a modification of the treaty of trade and friendship. >> it was within the jurisdiction of the united states by act of a ratified treaty. >> that is exactly it. >> if that is the case, when the president's executive order order, would that be restating existing law? >> i believe that is what it does. >> that is what my amicus brief on behalf of members of this committee says. >> mr. cooper? >> i agree with that. >> i would assume professor frost disagrees. that is it for me, mr. chairman. >> the gentleman from california, thank you. i recognize the gentlelady from pennsylvania. >> thank you. the effort to end birthright

citizenship is hardly something new. it has been the long-term goal of antisemitic and white nationalist groups for decades. the claims largely based on the bigoted great replacement conspiracy theory, the same conspiracy theory that has inspired a lot of deadly terrorist attacks in years. we are hearing uncomfortable echoes of that in congress in this day and age. as we listen to the statements, i was reminded of one of our predecessors statements here, the great barbara jordan who had a critical moment -- at a critical moment in our country's history talked about we the people and when that document was completed in september in 1787, either 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 included and

as members of congress now, we should not sit here and be idle spectators and much less participants in the subversion, or the destruction of the constitution. i would submit that the effort we are seeing here today to try to reinterpret and twist the clear language and legislative history of the birthright citizenship clause would be such a subversion or disruption of the constitution, now professor frost, you studied this for quite a long time. you, unlike several of the people here, are not a contributor to project 2025. we've heard a lot about the specific language subject to the jurisdiction of. why did they choose that phrase? >> the reconstruction congress told us clearly what they wanted to do, they wanted to exclude the children of diplomats and ambassadors and they discussed

excluding children born into native american tribes which are separate foreign sovereigns. their own courts and loss -- laws. >> it struck me, the inconsistency in claiming that an undocumented immigrant is not subject to the jurisdiction of the united states when they are, in fact, subject to our criminal code, paying taxes, et cetera, and can you talk about that and talk about how that relates to the issue of the exception for diplomats and their children? >> 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 as he is seek -- seeking to deport and enforce immigration laws against this group and also add something i mentioned before reconstruction congress is well aware there are people in the united states in violation of the law, those were the enslaved african-americans brought to the united states in violation of federal law and, of course, this

citizenship clause was intended to provide them with citizenship despite the fact that 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 it looked like you might have a different interpretation. can you expand on that? >> with all due respect to mr. o'brien who was a deep expert in immigration law i don't think he's familiar with the laws of the 32 other countries that have birthright citizenship. automatic birthright citizenship just like the united states. in canada if you're born in canada, regardless who your parents are, you're a citizen. that's why senator ted cruz had to renounce canadian citizenship in 2014, because he was born in canada to a u.s. citizen mother. >> thank you. i was struck by the idea that we would be putting a rather strange burden upon our maternity wards in our states if every time someone is born they have 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 border the person came across, whether or not they checked in, whether they filed an asylum claim or whether maybe they just overstayed their visa 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 the parents of newborn children. as an immigration lawyer i will see many people lack documentation of their citizenship or immigration status if they are lawful permanent residence. they may not be able to show that and we are asking these people at the time of their child's birth to prove this or risk having the child be deemed an undocumented immigrant from the moment it's born. >> i do think it is interesting that this is hardly

the open and shut case our colleagues would suggest. senator cruz is quoted as saying that is a disputed legal question. there are serious scholarly arguments on both sides. with that, i see that my time is expired. i will just have unanimous consent request to enter into the record a statement of the leadership conference on civil and human rights. >> without objection. sen. scanlon: i yield back. >> without objection, i will ask to be inserted into the record a collection of quotes from the gentlelady from texas, ms. jordan. a collection of quotes from her service as chair of the commission, regarding immigration in the 1990's, in which she makes clear her position that the enforcement of border security is important, the importance of having immigration policy that works is important. we should not have amnesty.

that we should -- immigration should not be a path to public benefits. she was clear in her language about that. and numerous other quotes from the gentlelady from texas, ms. jordan. without objection, i will -- i will insert that into the record. >> thank you to the witnesses for being here today. my colleague from pennsylvania mentioned the term white nationalism. i would 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 their very humanity. in the wake of that civil war, sought to deny them rights of citizenship as well. 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 that they were citizens. mr. mccotter, one of the authors of the 14th amendment, said citizenship clause, citizenship to every human being born within the jurisdiction of the united states of parents not oweing allegiance to any foreign sovereignty. another author of the 14th amendment 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 exclusively to the united states or do they still bear allegiance to their home country? mr. mccotter: they would still bear partial allegiance to their home country. sen. onder: and, therefore, in part, you know, foreign ambassadors, diplomats, do not

have children of foreign ambassadors, they do not have birthright citizenship? mr. mccotter: that's correct. this came up earlier in prior questioning about how lawful permanent residence could somehow be included within the birthright citizenship clause. i think the response to that is that those individuals do have sufficient allegiance. that's because they are here permanently with the consent of the united states. sen. onder: ok. you know, an example of the absurdity of all right -- all out right birthright citizenship. el chapo's wife traveled to california to give birth, then went back to mexico. under bidens policy, they were then american citizenship -- citizens with every right to obtain an american bank account and then they obtained american bank accounts. did el chapo's children owe full

allegiance to the united states? mr. mccotter: they would not, though. their children would have been partially allegiance to their parents home country. sen. onder: so it is in your testimony it is very clear that this idea of full allegiance is pivotal here. mr. mccotter: it was widely understanding -- it was the wide understanding of the jurisdiction clause at the time it was ratified, yes. if i may route -- briefly to the claim, sam of the arguments in this area are inherently racist in some way. i point out in long kim, ferguson, the patron of interpreting the constitution is colorblind. he dissented and said wong had never become a u.s. citizen. sen. onder: and likewise, if i

recall it was in which justice brennan, in a footnote, opined that anyone born physically in the united states be a birthright citizen. does the dictum have the same force of law as a holding in a case? mr. mccotter: it doesn't. in that footnote, he said jurisdiction, the phrase jurisdiction, is bounded only by principles of sovereignty and allegiance. the exact same thing that we talked about. sen. onder: which is what you are arguing today. ok, thank you. chair roy: the gentleman yields? all right. i appreciate that. i will recognize myself or five minutes. i would just ask, professor frost, we talked earlier about the extent to which we got the record with replete of examples

of tourism, birth tourism in which there are mall actors who are profiting by transporting people in the united states to deliver babies. we have georgetown law report talking about women from foreign countries, china and russia paying tens of thousands of dollars to temporarily relocate to the u.s., give birth, and often return. we have that happening at the southern border with some regularity. in mcallen, laredo, el paso, i certainly can attest personally. you believe all the children regardless of why they end up in american soil, that those children are, in fact, u.s. citizens under the law? ms. frost: i'm so glad you asked that because there is a federal gilly which bars people from coming to the united states to give birth, and gives officials the authority to bar anyone -- chair roy: that's not the question.

these babies are born on american store -- soil. they are born on american soil. they are brought here for profit. are they citizens, yes or no? ms. frost: yes, they are citizens. chair roy: they are in fact citizens under your interpretation of the law. you noted a minute ago that justice harlan was the lone dissent in plessy. correct? mr. mccotter: that's correct. chair roy: but was also a dissenter in wong. a threshold question is with respect to wong which is often cited as the basis, now 130 years hence, for these individuals being viewed as citizens, 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 their countries, that they are deemed citizens based on interpretation of an opinion 130 years ago. yes or no, do you believe that

long stands for that premise? mr. mccotter: i do not. and isight cite support for that in the brief. chair roy: you believe it is limited to at most, an lpr type status under today's law? mr. mccotter: here is a quote. wong by its fact and limited to children born of parents at the time of birth were in the united states lawfully or indeed permanent resident -- residence. chair roy: mr. cooper, do you share that view? mr. cooper: i do. i would point out that long itself conditioned its irresistible conclusion from the 14th amendment. it affirms the ancient and fundamental rule of citizenship by birth within the territory in they allegiance and under the protection of the country, which was premised in that case on the parents of long being lawful permanent residents, allegiant air this country.

chair roy: to be clear, you do not believe that long's opinion extends at a minimum beyond what we would characterize under today's law as an lpr status individual? mr. cooper: no, it clearly did not have anything to do, as mr. o'brien has said, with illegal aliens or aliens here who may be here lawfully but only temporally. chair roy: are you aware of any opinion by the united states supreme court that has extended beyond that interpretation since wong? do you agree with that? mr. o'brien: i do. chair roy: having established that that is the state of the law with respect to wong, and everything since, my question is, is correctwong -- is wong correct?

we have the dissent in plessy. was plessy overturned? mr. cooper. mr. cooper: yes. mr. mccotter: yes. mr. o'brien: yes. ms. frost: yes. chair roy: now we have got wong. is wong correct on the law -- on the law in respect to lpr's under the interpretation of the 14th amend? i would ask mr. cooper, your opinion. mr. cooper: i will tell you, mr. chairman, that i think there is significant support for the conclusion, the holding in wong and the debates under the citizenship clause. but one does not have to conclude that it is correct. in order to uphold this. because the executive order is entirely consistent with wong. chair roy: you have anything to add to that? then i will be done with my time. mr. o'brien: i do not believe it was correct and i would go so

far as to say that the holding itself should be considered limited to the terms that were before the court, which had to do with a treaty with china, which is no longer in existence. chair roy: i appreciate it, gentlemen. we have another member of the committee. i will recognize my colleague and friend from texas, mr. gail. sen. crapo: thank you, mr. chairman. 160 years ago, democrats were asking us, if it were not for slavery, who would pick our cotton? today, they are asking a similar question which, if it were not for mass migration, who would pick our avocados? it is a similar pattern that they have established. the united states is not in fact better off by importing a massive class of what is virtually surf labor, which undermines our cultural fabric and our government as well. i would also like to point out

that the admission that we need more and more unvented 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 to reduce american wages. because that is exactly what they are doing and what they are saying they will do whenever they talk about bringing in cheap labor. we are talking about birthright citizenship, which has provided an enormous loophole in our immigration system and has facilitated them massive importation -- deportation of illegal aliens. 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, they -- these individuals then use

their citizenship to sponsor their illegal alien parents and other family members 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 would like to start with you, with a couple questions if you don't mind. under the 14th amendment, native americans due to tribal allegiances were not granted citizenship, is that correct? mr. o'brien: that's correct. sen. gill: got it. and the children of foreign diplomats were also expressly excluded from birthright citizenship? mr. o'brien: that's correct. sen. gill: is it safe to say that the authors of the 14th amendment understood a difference between total allegiance to the united states compared to simply being subject to the legal jurisdiction by

nature of present in our country? mr. o'brien: yes, i think they made that very clear in the debates. sen. gill: in your opinion, based off this difference, with the authors of the 14th amendment conclude that an individual whose parents did not owe total allegiance to the united states be granted birthright citizenship? mr. o'brien: no, i think the import of the holding in wong, only individuals lawfully present in the united states could transmit citizenship to their children born here. or i should say, only the children born of people who are lawfully present in the united states could acquire citizenship at birth. sen. gill: and despite this, some of my colleagues still contend that essentially any born here regardless of their illegal status or legal status of their parents, have a constitutional right to be become a united states citizen, have you seen any evidence to suggest that the authors of the 14th amendment would support that view?

mr. o'brien: no, and i don't think the authors of the opinion of wong kim arc would support it either. sen. gill: thank you very much. i yield my time back to you. chair roy: i think my colleague from texas. i will now recognize the gentlelady from pennsylvania. >> they seek unanimous consent to present barbara jordan's obituary in which it notes that she spoke out against a proposal to deny automatic citizenship to the children of illegal immigrants, saying "to deny birthright citizenship would derail this engine of american liberty." chair roy: without objection. and i would ask ask consent to insert into the record the amicus brief submitted by a number of house colleagues as drafted by mr. mccotter. i would also like to introduce into the record a note that was written by amy swearer from the

heritage foundation, who has 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 that into the record. that concludes today's hearing, we thank the witnesses appearing before the subcommittee today. all members will have five legislative days to submit questions for the witnesses or materials for the record. the hearing is adjourned. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2025]

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