During the first Trump Administration, some of the President's supporters urged him to embrace the view that the Fourteenth Amendment does not require recognition of birthright citizenship to those born in the United States to parents who were not legal residents.
As I noted at the time, some of the most thorough and comprehensive arguments to the contrary could be found in the work of Judge James Ho, who wrote several op-eds and a short law review article on the question before becoming a judge on the U.S. Court of Appeals for the Fifth Circuit.
The Fourteenth Amendment provides, in relevant part, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . ." This provision unquestionably provides that those born on U.S. soil to American citizens and lawful permanent residents are American citizens at birth. The relevant legal question with regard to the Trump Administration Executive Order is what it means for someone to not be "subject to the jurisdiction" of the United States at birth. The conventional account is that it excludes the children of foreign diplomats and invading armies. The revisionist account maintains that it also excludes the children of those unlawfully present in the country, and perhaps the children of non-citizen parents lacking lawful permanent residence as well.
