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▶ 0:36:55the subcommittee will come to order with without objection the chair is authorized to declare a recess at any time we welcome everyone to today's hearing on Birthright citizenship I will now recognize myself for an opening statement as Supreme Court Justice Luis brandise once wrote the most important office and the one which all of us can and should fill is that a private citizen this hearing is on the issue foundational to our Republic who is an American citizen by Birthright section one of the 14th
▶ 0:37:25Amendment grants citizenship to all persons who are are quote born or naturalized in the United States and subject to the jurisdiction thereof end quote it is the latter Clause subject to the jurisdiction thereof that we will examine today in significant part our inquiry is simple what was the original public meaning of the jurisdiction Clause the 14th amendment was drafted to rectify the terrible decision in the 1857 Dread Scott me Samford Case by recognizing former slaves as rightful Americans as we'll learn from our witness today the answer is clear
▶ 0:37:55the jurisdiction Clause has originally understood grants Birthright citizenship only to Children whose parents have full exclusive allegiance to the United States the constitutional text in history shows that children of illegal aliens and legal aliens who are in the United States temporarily are not citizens by Birthright under the 14th Amendment for decades proponents of automatic Birthright citizenship have claimed the 14th Amendment and the Wong kimar case bestows automatic citizenship to all children born to foreign Nationals including illegal aliens this is a blatant
▶ 0:38:26misunderstanding of both items resulting in Birthright citizenship serving as a driving force of illegal immigration to the United States as many illegal aliens and temporary Visa holders know they can reap the benefits of their child citizenship president Trump's first day executive order on Birthright citizenship restored the 14th Amendment to this original meaning despite what you may hear on the news some of the most respected legal Scholars agree with the Constitutional interpretation outlined in president Trump's executive order some of these legal Scholars include
▶ 0:38:56those here on this panel today our witnesses will dive into the history of the 14th amendment in Congress and the Supreme Court but I'll give you a brief version the drafters of the 14th Amendment understood it not to Grant citizenship to persons quote owing allegiance to any foreign sovereignty end quot and in the first cases decided after ratification the Supreme Court held that jurisdiction in the 14th Amendment means not merely subject in some respect or degree to the jurisdiction of the United States but completely
▶ 0:39:26but 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 direct and immediate allegiance to the United States and therefore their children are not citizens by Birthright under the 14th Amendment now I'm sure we'll hear a lot from our colleagues on the other side of the aisle about Supreme Court president as well so let us make one thing clear at the outset the Supreme Court has never
▶ 0:39:56held that children of elite aliens or aliens who are in the United States temporarily are entitled to Birthright citizenship president Trump's executive order is consistent with Supreme Court precedent I'd also like to emphasize the purpose of today's hearing we're here to discuss an important constitutional question this is after all the Constitution subcommittee and I hope that we can keep our focus on the text in history of the 14th Amendment but no doubt some of the policy implications will come up and it would be a disservice not to at least mention those important issues implicated by the
▶ 0:40:26Constitutional question in addition to twisting the Constitution and Court president conferring automatic citizenship is a bad policy it devalues the meaning of American citizenship by bestowing it to the children of law Breakers who entered the United States without the consent of its people almost rewarding them for trespassing into our country's soil to add context an estimated 124,000 to 300,000 so-called anchor babies which are children born to illegal aliens are born each year according to the Center for immigration studies
▶ 0:40:56in 201 23 up to 250,000 children were born to illegal aliens in 2023 which accounted for 7% of total bursts in the nation that year moreover it further strains government programs that are already strained for example in terms of supplemental nutrition assistance snap which provides School meals Americans shell out $5 billion each year in snap and food stamps for the US born children of illegal aliens according to a 2023 report by the Federation for American Immigration reform
▶ 0:41:27if one looks at the amount illegal aliens in their us-born children are projected to consume and federal welfare program benefits the American taxpayer foots an even larger Bill take for example in a July 2024 report the Congressional budget office that answers to us concluded that the federal government is projected to spend $177 billion in welfare benefits to illegal aliens and their us born children over the next 10 years now mindful that is a larger population but it is clear that the birthright citizenship issue
▶ 0:41:57imp implicates those issues this $1 177 billion includes Medicaid SSI Obamacare premium tax credits food stamps and more ending Universal Birthright citizenship and thereby ending birth tourism a practice in which pregnant women travel to the United States to give birth and secure citizenship for their children is good policy birth tourism diverts us medical resources away from our own mothers and babies and allows shady and unscrupulous birth tourism agencies quote unquote to prey unexpectant mothers
▶ 0:42:27according to a 2020 study there are between 20,000 and 26,000 foreign tourists in the US giving birth on our soil annually as far back as 2008 the CEO of the macallen Texas Medical Center where about 40% of births were to illegal alien mothers stated that quote mothers about to give birth walk up to the hospital clearly having just swam across the river in actual labor just as concerningly adversaries like China are abusing Universal Birthright citizenship and practicing birth tourism
▶ 0:42:58to Nestle deeper into US society which carries security concerns in 2018 Georgetown laws O'Neal Institute wrote The Following quote women from foreign countries mainly China and Russia are paying tens of thousands dollars to temporarily relocate to the United States during their pregnancy in order to give birth in the United States and thereby guarantee US citizenship for their child to shed light on the magnitude of this abuse China hosts over 500 companies offering birth tourism Services resulting in more than 50,000 Chinese Nationals
▶ 0:43:28delivering babies in the United States every year according to a 2019 estimate the Constitution does not require us to allow this practice and we should not even late Senate Democrat Majority Leader Harry Reid recognized the disastrous policy implications of Birthright citizenship as he opposed automatic citizenship for children born to foreigners he said the following in a 1993 speech on the senate floor quote if making it easy to be an illegal alien isn't enough how about offering a reward for being an illegal immigrant no s country would do that
▶ 0:43:58right end quote he continued guess again if you break our laws by entering this country without permission and give birth to a child we we reward that child with US citizenship and guarantee a full access to all public and social services this society provise and that's a lot of services that is Harry Reid the former Democrat leader in the United States Senate Senator Reid was right in his observation no San country would enable a foolish policy like automatic citizenship to children born to foreigners is especially illegal aliens
▶ 0:44:28Congress should heed his warning but simply the framers of the 14th Amendment did not intend for Universal citizenship to children born to all classes of foreigners nor did the judges in Wong kimar case rule on the question of citizenship beyond the children of lawful permanent residents including those born to illegal aliens and temporary visitors and there's one more point I'd like to make in closing Congress is where the debate over Birthright citizenship should be happening in fact my friend from Texas representative Brian Babin is legislation the birthright citizenship act that would
▶ 0:44:58fix this policy Gap and restore the practice of granting US citizenship as was intended in the 14th Amendment Section 8 of Article 1 and section 5 of the 14th Amendment grant us power over questions of citizenship president Trump's executive order rightly returns that power to us and in doing so it returns us to the reasonable Common Sense interpretation of the 14th Amendment when it was ratified in 1868 I now recognize the ranking member Miss scanland for her opening statement m Mr chairman since this is our first
▶ 0:45:29hearing of the new Congress I'd like to say but that I am anticipating we will continue to have a vigorous exchange of ideas in this committee room and I imagine we'll tackle some interesting and thorny legal disputes throughout this term however I have to admit that today's topic probably won't meet that expectation because for more than a century there have been few legal questions as open and shut as whether being born in the United States make someone a United States
▶ 0:45:59citizen and this is a little bit of a spoiler alert here I'll skip ahead and tell you right now it does frankly to suggest otherwise is nothing but a blatant and disingenuous attempt to rewrite our nation's history and the Very words of the Constitution contrary to the chair's assertions uh the history of the amendment does not support the interpretation that he and his colleagues are pressing and I beg to differ with his assertion that it's only been a few decades Decades of people um making
▶ 0:46:29the interpretation which has been in effect for over a century now rewriting history and ignoring the rule of law has become a feature not a bug under the Trump Administration but it's one that Congress has a constitutional obligation to prevent rather than enable so why are our Republican colleagues questioning the plain and long settled meaning of the birthright citizenship Clause simply put it's because president Trump and his allies in Congress think there's something to
▶ 0:46:59gain politically by stripping an entire group of American citizens of their rights their votes their very identities and turning them and their descendants into a permanent underclass they want to decide who they deem worthy of being a citizen of our country and who isn't based on who their parents are and where their parents are from and in an act of really cynical irony they want to in essence Resurrect The rationale behind The Dread Scott decision that the 14th
▶ 0:47:29amendment was written to reject once and for all our history our quest for a more perfect union has always been about expanding opportunity and civic participation not ripping it away broadening our electorate has been an important part of that progress including through Constitutional Amendments that guarantee citizenship and franchisement regardless of race women's suffrage and more and in doing so we've sought to make our country and its government more representative
▶ 0:48:00more fair and more perfect that's a goal a vision that all patriotic Americans should share any attempt to radically reinterpret the citizenship Clause serves only to further the goal of right-wing extremists to unconstitutionally limit who can have a political voice in this country Donald Trump's unconstitutional executive order to end Birthright citizenship along with legislative efforts by Republicans and Congress to do the same
▶ 0:48:30would drag us backwards ensuring a government that's not for the people but for some people it's the absolute antithesis of the promise of America it's been 150 years since the 14th Amendment enshrined Birthright citizenship into the constitution in that time the US has been made better by the contributions of Americans born here to Immigrant parents regardless of where their parents came from or their parents citizenship status overturning Birthright citizenship
▶ 0:49:01would hurt our nation and deeply imperil our ability to continue striving for a better future it would impact all Americans by creating a logistical nightmare bureaucracy would invade our maternity Wards with States and hospitals being forced to invest investigate which babies do or don't qualify for citizenship more troublingly though ending Birthright citizenship would create a legal cast system system based on the status of one's parents instead of citizens the US
▶ 0:49:31would develop a permanent underclass of stateless not legally recognized subjects who could be exploited or deported at the mercy of a political majority that would be a twisted reflection of the intended purpose of the 14th Amendment because the language chosen by the Amendments framers in the aftermath of the Civil War was to prevent this kind of cast system from ever returning so if our Republican colleague want to have a legal argument today here it is the children American children
▶ 0:50:01of undocumented immigrants and the American children of those here on visas such as for work or study are indeed persons born here in America at the moment of their birth they're 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 amendments guarantee that all person born in the United States and subject to the jurisdiction thereof are citizens of the United
▶ 0:50:31States and that's the quote clearly applies to those individuals the plain text of that Clause is about as straightforward a statement of as of American law as you can get but there's additional support throughout the legislative history of this clause in the debates on the passage of this amendment over a century ago Congress clearly defined the intent and purpose of the birthright citizenship clause and rejected the types of arguments being ADV Advanced against it today similarly
▶ 0:51:01the Supreme Court considered and rejected arguments against the plain meaning of the amendment in the case of United States versus Wong Kim Arc way back in 1898 subsequent cases have rejected the proposition being Advanced by our colleagues today that the children of certain immigrants born in the United States should be denied citizenship because it's unconstitutional clearly the law history support the straightforward conclusion and that's why four federal judges
▶ 0:51:31have already blocked the president's executive order attempting to end Birthright citizenship one of those judges judge kunau a Reagan appointee told Trump doj lawyers the executive order was quote 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 quote difficulty understanding how a member of the bar would State une unequivocally that this is a constitutional
▶ 0:52:01order end quote noting that it boggled his mind flimsy arguments aside ultimately a president cannot unilaterally repeal a constitutional amendment any Elementary student of civics knows the only way to repeal an amendment is with another amendment remember prohibition the 18th Amendment to the Constitution outlawed the sale and manufacturer of alcohol in and it was repealed by the 21st amendment in 1933
▶ 0:52:32but there's the rub Americans overwhelmingly support Birthright citizenship presidents and extremists like Steven Miller who've championed the idea know that they don't have the votes to pass a constitutional amendment to repeal Birthright citizenship much less get the approval of three4 of the states to make it law so instead they're trying to do an end run on the Constitution with a tortured and unconstitutional reading of the English language and More Than
▶ 0:53:02A Century of legal analysis our Republican colleagues are here today trying to enable the president as he pushes his wager that his Supreme Court the one he stacked 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 our pushing our country to backslide into the most shameful parts of its past instead
▶ 0:53:32we should be passing laws that guide it toward the light of a brighter future one in which our most fundamental American principles and the promise to form a more perfect union ring true for all rather than just for a privileged VI and that that more just that more fair America and the policies that actually get us there is what I and my Democratic colleagues would rather use this committee to fight for I yell back not seeing either the chairman
▶ 0:54:02or ranking member uh we will move forward and and um 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 the chairman and founding partner of Cooper and Kirk pllc 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 served in the Department of Justice and was a law clerk to Justice William renquist Mr R
▶ 0:54:32Trent mcot Mr mot is a partner at boen gray pllc where he litigates in federal court and before federal agencies he previously served as a deputy associate attorney general where he oversaw the Department's civil appet and federal programs branches he also previously served as a federal prosecutor with the US attorney for the eastern district of Texas of Virginia slip it comes right out Mr Matt O'Brien Mr O'Brien is the director of Investigations
▶ 0:55:02at the immigration reform law Institute where he oversees IR Li's investigations into fraud waste and abuse in the application and enforcement of the nation's immigration laws he previously served as an immigration judge and in various positions with the Department of Homeland Security Professor Amanda Frost Miss Frost is the David lurton Massie Junior professor of law at the University of Virginia it's my undergraduate moer Professor Frost research focuses on immigration and citizenship law federal courts and jurisdiction and
▶ 0:55:32judicial ethics we thank our Witnesses for appearing today and we'll Begin by swearing you in would you please rise and raise your right hand do you swear or affirm under penalty of perjury that the testimony you are about to give is 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
▶ 0:56:03will be entered into the record in its entirety accordingly we ask that you summarize your testimony in five minutes Mr Cooper you may begin Mr Cooper I think is your microphone thank good afternoon to members of the committee I uh 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
▶ 0:56:34thereof the recurring debate over the meaning of these words boils down to a choice between two Alternatives does it mean subject merely to the regulatory jurisdiction of the United States that is subject to the laws of the United States as is virtually everyone on 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
▶ 0:57:04that the full and complete jurisdiction requiring an allegiance that comes from a permanent lawful commitment to make the United States one's home the place where one permanently and lawfully resides I believe that this latter interpretation is compelled by the citizenship Clauses text structure and history as well as by sense I have time for just a couple of brief opening points first the text of the Clause if subject to
▶ 0:57:34the jurisdiction of the United States means nothing more than the duty of obedience to the laws of the United States why did its framers choose such a strange way to say that why didn't they just say subject to the laws of the United States doing so would have been quite natural given that this straightforward unambiguous phrase is used in both article 3 and article 6 the clause also ensures that Birthright citizenship makes newborns citizens of both the United
▶ 0:58:04States and of the states wherein they reside that is where they live their 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 pro prohibited by law from residing in a state although they almost obey our laws second the history of the Clause the Clause was framed by the
▶ 0:58:3439th Congress to constitutionalize 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 quote subject to any foreign power close quote and to quote Indians not taxed close quote it is clear from the debate in the 39th Congress that Congress decided to replace this language with subject to the jurisdiction
▶ 0:59:05thereof 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 poor Indians the dispute is best captured I think by the this comment from Senator Trumble who wanted to replace the words
▶ 0:59:35Indian not taxed even though he was the principal author of The 1866 act he said this I am not willing to make citizenship in this country depend on taxation I am not willing if the senator from Wisconsin is that the rich Indian residing in New York shall be a citizen and the poor Indian residing in the state of New York shall not be a citizen this comment reflects two important points about the intended meaning of the Clause
▶ 1:00:06by its authors I think 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 had left their reservations and had esta Lish permanent residence among the body politic of the states would be entitled to Birthright citizenship second it is
▶ 1:00:36not at all plausible that the framers of the citizenship Clause intended that tribal Indians to be able to evade this limitation on Birthright citizenship for 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 owed their direct allegiance to the tribe
▶ 1:01:06while an Indian who established a permanent domicile within the state and assimilated into the body politic committed his primary allegiance to the United States and thus entitled his children to citizenship at Birth the Supreme Court's 1884 decision at Bel against Wilkins confirmed this understanding essentially ruling that the Clause requires persons to be completely subject to the political jurisdiction
▶ 1:01:36political jurisdiction of and owing direct and immediate allegiance to the United States make one point the Supreme Court's 1898 decision in Wong Kim Arc had nothing to do with the children of illegal aliens or aliens lawfully but temporarily admitted to the country the court carefully framed the issue before it twice in verbatim terms as involving quote a child born in
▶ 1:02:06the United States of parents of Chinese descent who have a permanent domicile and resident in the United States thank you Mr chairman thank you Mr Cooper uh we were now move to Mr mcot I welcome you for your opening statement I will note Miss Frost uh we go over a little bit of time I'll be uh give you ample time as well Mr maau please proceed chairman Roy ranking member scandin and distinguished members of the committee the 14th Amendment confers citizenship
▶ 1:02:37on any person who was both born or naturalized in the United States and subject to the jurisdiction thereof each of those Clauses invokes A specialized term of Art in other words it doesn't mean what it might mean at first glance for example courts have held as recently as four years ago that those born in US territories are not covered by the citizenship Clause despite being literally born in the United States and similarly for the jurisdiction Clause it invokes the historic doctrine
▶ 1:03:07of Allegiance meaning the person must owe direct and exclusive allegiance to the Sovereign as the DC circuit held as recently as 2015 now the historical record for the jurisdiction Clause is lengthy and complex I would respectfully direct you all to the amus brief that I submitted on behalf of many members of this committee but I'll highlight three issues in particular first like Mr Cooper I'll emphasize the importance of the Civil Rights Act of 1866 there's widespread agreement that the jurisdiction Clause of the 14th
▶ 1:03:37amendment was meant to constitutionalize that act and that they mean the same thing but of course the 1866 act excluded those who are subject to any foreign power so that means citizenship for both Clauses turns on not being subject to any foreign power Senator John Bingham who is later a principal author of the 14th Amendment said what does this mean it means quote every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty
▶ 1:04:08and quote would be a citizen American Birthright citizenship was reserved for those who were not already deemed Allegiant to another Sovereign their birth that takes me to my second point you may have noticed in the quote from Senator Bingham that he refers to the parents Allegiance obviously the 14th Amendment itself refers to the AL legiance of the child so what's the connection there the connection is that at that time and in many countries even now the children born to citizens of that country were deemed themselves
▶ 1:04:38to be citizens of that country for example in 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 owe complete and exclusive allegiance to the United States that would deprive that child of being entitled to birth right citizenship that's the connection between the parents's allegiance and the child's allegiance that you see so often this leads to the third and final point to emphasize today as Mr Cooper said
▶ 1:05:08as a matter of logic and history the phrase subject to the jurisdiction thereof cannot mean subject to the laws thereof the exceptions prove the point there's wide spread agreement that children born in the United States to ambassadors or to invading soldiers would not not receive Birthright citizenship so it's not correct to say that all those born in the United States are citizens even under those who challenge president Trump's executive order as far as I'm aware almost no one holds that view
▶ 1:05:39the 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 US law in other words they have various forms of immunity but that's wrong not even ambassadors have full immunity at best it's contingent their home country can revoke it nor are foreign soldiers immune from US law within when they are within the United States so the inquiry cannot turn on parent supposed immunity as
▶ 1:06:09Mr Cooper also pointed out there's the fact that there was complete agreement at the time of the 14th amendment that American Indians children indian children would not be covered even though they are undoubtedly subject to US law and long have been so the theory that subject to the jurisdiction thereof means subject to the laws thereof proves far too little it cannot explain any of the categories widely accepted it also proves too much if it's correct that having a parent with contingent or partial immunity as an ambassador would have
▶ 1:06:39could deprive the child of birth rght citizenship then domestic individuals who have partial or contingent immunity judges prosecutors even members of Congress who possess immunity for certain acts under speech or debate would likewise fall within the same category of course we know that's not right we know that the children of those officials are US citizens while those of ambassadors are not so what test explains the exceptions it's Allegiance the first point I mentioned judges prosecutors members of Congress they're all fully Allegiant to
▶ 1:07:10the United States ambassadors foreign soldiers are not so the takeaway for this committee Congress can confer citizenship by Statute and has done so for many groups not covered by the jurisdiction Clause including Indians and those born in many of the territories by that power is and always has been exclusively congress's alone to exercise thank you thank you Mr mot uh Mr O'Brien
▶ 1:07:40you proceed chairman Roy ranking members scandin members of the committee it's a privilege to appear before you today and I thank you for the invitation the two witnesses before me I think have very ably summarized what's an issue here so what I would like to point out is two things uh based on my many years of experience working in immigration law directly I actually began my career as an immigration examiner in the Naturalization division of the ins
▶ 1:08:10so I'm very familiar with these issues now it's very easy to say the meaning of this case is obvious of course if it were obvious it probably wouldn't have had to become a case in the first place the common narrative goes something like this Wang Kim Arc means that everyone born in the US gets citizenship later in pler V do justice Brenan confirmed this in that holding stating that no plausible distinction with respect to the 14th Amendment jurisdiction
▶ 1:08:40can be drawn between resident aliens whose entry into the United States was lawful and Resident aliens whose entry was unlawful there's two major problems with that approach though the first is that the court in Juan kimar couldn't address the question of citizenship being conferred upon illegal aliens because there were no illegal aliens to speak of at the time US immigration law barred a very small slice of individuals among them Chinese Nationals who were subject
▶ 1:09:10to the provisions of a treaty between the United States and China criminals and people who are likely to become public charges as well as those who appeared to be clinically insane so the concept of illegal aliens was one that wouldn't come along until much later at that point in time anybody who could pay the 50 Cent admission tax entrance tax could be admitted to the United States and was permitted to remain there indefinitely now the second problem with the standard narrative about won Kim Arc is
▶ 1:09:40that Justice Brennan's assertion in pler V do is obiter dicta a judge's in incidental expression of opinion that is not essential to a decision and does not constitute part of the precedent established by a case in that case in a footnote Justice Brennan expressed his personal opinion that a 1912 immigration law trees not case law or statute held that everyone born in the US was a citizen in short neither Wan Kim Arc
▶ 1:10:10nor pler had anything to do with whether the children of illegal aliens become US citizens at Birth in fact that question has not yet been addressed by the Supreme Court and there is little basis on which it may be argued that the holding in wam Kim Arc would require a conclusion that the children of illegal aliens are automatically entitled to citizenship upon being born within the confines of the United States if the United States is to formulate a reasonable policy for the transmission of citizenship then it must abandon
▶ 1:10:41the dangerous folk tale that is currently associated with Wan Kim Arc and I hope that my testimony here today will assist this Committee in getting to the heart of what Wan Kim Arc and the 14th Amendment really require and if one stops and thinks about this it would be utterly irrational to lay out a list of people who are inadmissible to the United States and whose presence here is unlawful which can result in their criminal prosecution as well as their removal from the United States but then allow those people to transmit
▶ 1:11:11citizenship to their children unquestionably and without any qualifications so I thank you for inviting me here today thank you Mr O'Brien appreciate your testimony M Frost you make in chairman Roy ranking member scanland and distinguished members of the committee thank you for the opportunity to discuss the significance and meaning of the 14th Amendment citizenship Clause some provisions of the US Constitution are Broad and confusing but the
▶ 1:11:41citizenship Clause is not one of them the text the drafting history the original understanding and over A Century of unanimous judicial precedent and historical practice all confirm that that the citizenship Clause means what it says as the text States the citizenship Clause grants citizenship to all born in the United States and the only meaningful exception today is for the children of cular officials the citizenship Clause was intended
▶ 1:12:12to remove the stain of Dread Scott from our constitution the Supreme Court decision that held citizenship turned solely on race and ancestry and birthplace in 1867 sorry 1868 the nation rejected Dread Scott and when discussing this addition to the Constitution the Reconstruction Congress explicitly stated that it wanted to provide citizenship to the 4 million formerly enslaved Americans and the children of immigrants arriving from around
▶ 1:12:42the globe this Congress also acknowledged and well knew that some of those enslaved Americans had been brought into this country in violation of the law because laws after 1808 prohibited the interational slave trade these were the illegal aliens of the day and thus it is wrong as Mr O'Brien just stated to say that there wasn't such a thing as an undocumented or illegal alien at the time the Reconstruction Congress well knew there was and of course intended to Grant those people's
▶ 1:13:13citizenship um that is why president Trump's executive order has been rejected by every federal court that has addressed it over the last month five and Counting and these judges have been scathing federal judge John uh kunau appointed to the bench by Ronald Reagan described the executive order as unconstitutional federal judge Joseph llant A George W bush appointee enjoined the executive order on the ground that quote it contradicts the text of the 14th Amendment and the
▶ 1:13:43centuryold untouched precedent that interprets it these judges have interpreted have concluded that the Trump administration's arguments in favor of the executive order are a has historical a textual and illogical also inconsistent with the order itself um for that reason I'm not going to spend any more of my time here discussing the meaning of the citizenship clause which is detailed in my text of my written statement and I'm happy to answer questions uh but instead I'm going to move on and talk about the devastating
▶ 1:14:13consequences of this executive order for the 3.5 million American families who every year welcome a new child into family the executive order claims the power unilaterally to rewrite the Constitution that alone is disturbing enough in doing so it excludes hundreds of thousands of newborn children from citizenship um including the children of immigrants who came legally to the United States all of these newborn children would be declared undocumented immigrants
▶ 1:14:44from the moment they are born some would be born stateless and all would be at risk of being deported away from their parents and 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 undoc the children of undocumented immigrants and the children of uh temporary immigrants it would affect all Americans every single person giving birth to a child going forward
▶ 1:15:15all would now have to produce paperwork proving their status their citizenship their Green Card status at the time of the child's birth and as an immigration lawyer I will tell you for many people that is not easy I thought this was a committee that favored limited government this is expanding the federal bureaucracy and the paperwork burdens on these uh families hospitals state agencies and overburdened immigration officials as I said at the most sensitive moments of these people's lives as explained the executive order is not
▶ 1:15:45only unconstitutional it is not only a terrible Poss uh policy it also conflicts with fundamental American values we are a nation that rejects the test of ancestry and lineage um and we prefer instead to Grant citizenship based on birthplace it's a choice we've made well over Century go to be born in America is to be born an equal citizen America is excellent at integrating the children of immigrants into our society it is one of our great strengths
▶ 1:16:15all Americans should be proud that in 1868 the nation rejected Dread Scott and reclaim citizenship based on location of birth not lineage and ancestry welcoming the children of immigrants we must never go back thank you m Frost we will now proceed under the F minute rule with questions uh the chair recognizes the gentle lady from Wyoming for five minutes thank you Mr chairman Birthright citizenship allows for predatory birth tourism practices
▶ 1:16:45in which foreign born women come to the United States on tourist visas to give birth so that their children become US citizens once the children turn 21 they can sponsor their parents to become legal us residents so the family can immigrate to America concerningly the majority of these birth tourists come from one of America's greatest adversaries including China because of advances in technology lack surrogacy laws and the incorrect understanding of the 14th Amendment countries are now using international
▶ 1:17:16surrogacy programs to rent wombs in America Mr O'Brien there is a back and forth in US 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 it strong enough to prevent this practice of essentially renting wombs for surrogacy to uh have anchor babies well the fact is that we don't have any
▶ 1:17:46policy specifically on this we have the immigration laws but as we've seen with the last Administration if the government refuses to enforce those they have no effect whatsoever and there's anywhere from 125,000 to 300,000 depending upon whose estimates you're looking at incidences of birth tourism each year um the implications of this are absolutely frightening if you look at it long term during the Cold War the Russians had a program called the illegals program where they inserted uh agents of influence
▶ 1:18:16and spies into the United States with documents that made it appear that they were lawfully here if those people had children they became us citizens and regularly those children were trained despite the fact that they allegedly had a claim to United States citizenship they were trained to be against the interests of the United States so 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
▶ 1:18:47well then I want to focus specifically on this issue according to the Heritage Foundation they have reported on a new bth birth tourism tactic which uses International commercial surrogacy to exploit America's misinterpretation of the 14th Amendment and our lack surrogacy laws intended parents who are foreign Nationals use a surrogate in or transported to the United States and the surrogate may be an American woman who then just States a child for a fee allowing foreign Nationals
▶ 1:19:17to essentially rent a room or buy a baby uh Mr O'Brien under the current wrongful interpretation of the 14th of Amendment this child would gain US citizenship wouldn't they yes they would and because the immigration and nationality act has become a muddle under the weight of misinterpretations about various effects of provisions of the act that places the United States in a position where people with no connection to the United States who simply want to be here because they either don't like the political or economic conditions
▶ 1:19:47in their home country can then use the citizenship of an adopted child or a surrogate child to try and access the United States and then eventually get lawful permanent residents and become citizens themselves so this form of birth tourism actually exacerbates the crisis we have with birth citizenship requiring direct and exclusive allegiance that which should require direct and exclusive allegiance to the United States don't you agree yes it does it exacerbates it significantly but what's very interesting
▶ 1:20:17is China banned International surrogacy yet the international industry is disproportionately fueled by China Nationals who make up 41.7% of the surrogacy industry should this raise National Security concerns that China is aggressively participating in a practice that it is banned in its own country yes China has an established pattern through an organization called The People's work Bureau of approaching people who have a familial connection to China
▶ 1:20:48regardless of their citizenship and then 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 Espionage information well and what's interesting is that the children these children who are receiving American citizenship they receive that even if the parents intend to AR raise to raise them abroad what are the benefits of having a child with American citizenship the
▶ 1:21:18benefits of having a child with US citizenship is that child can later sponsor you for lawful permanent residence um it also makes the child eligible for all sorts of of things that come along with US citizenship which is entering and leaving the United States um the implications of that from a national security or criminal perspective are enormous um so this is truly frightening and it's shocking to me that there is so much debate about this I I think if we're we're arguing about this we've sort of lost
▶ 1:21:48the concept of what citizenship is and what it means I amen I think you make a very good point point I ask unanimous consent to put into the record an article from July 15 2024 entitled the new face of birth tourism Chinese Nationals American surrogates and Birthright citizenship and with that I yield without objection also without objection Mr Bigs will be permitted to participate in today's hearing for the purpose of questioning the witnesses if a member yields him time for that
▶ 1:22:18purpose I will recognize uh the Gent from Washington Miss J Paul thank you Mr chairman let me be very clear Donald Trump's executive order to eliminate Birthright citizenship is quote blatantly unconstitutional those are not my words those are the words of Judge John kunau Reagan appointed federal judge from my home state of Washington the judge went on to say that while quote the rule of law is according to Trump
▶ 1:22:48something 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 Birthright citizenship has been enshrined as a fundamental right under the 14th Amendment the language in the amendment is very clear all persons born or naturalized in the United States in fact so clear that at least four federal judges have concluded that the executive
▶ 1:23:19order is unconstitutional like many of the attacks on immigrants by the Trump Administration this attack centers on Old tropes that question the quote allegiance of immigrants tropes that were applied to enslaved black people brought to this country in shackles as well as Japanese Americans imprisoned and Inter during World War II these attacks are couched in a completely baseless argument that somehow immigrants born in the United States to a parent who is undocumented
▶ 1:23:50don't have sole quote allegiance to the United States professor Frost this argument is actually very similar to The Very arguments made in 1897 by solicitor general Holmes Conrad in the Supreme Court case United States versus Wong Kim arc when he argued that the children of Chinese immigrants were not quote subject to the jurisdiction of the United States because they owed their allegiance to the Emperor of China and the Supreme Court considered these racist arguments and they categorically
▶ 1:24:20rejected them correct can you explain why if that's the case yes that's uh correct I think it's worth noting that Holmes Conrad came from a slave owning family he was an officer in the Confederate Army and he himself lost his citizenship for a period of time because he was a traitor to the United States of America in addition to the argument you just noted that he made that stated that the children of immigrants and in particular Chinese immigrants did not have allegiance to the United States he made that argument explicitly and it was rejected by the Supreme Court in 1898
▶ 1:24:51but in addition to that I think it's worth noting he also told the Supreme Court Court of the United States that the entire 14th amendment was unconstitutional that's an argument he made I'm not aware of ever a solicor general making that that argument to any other Supreme Court in the history of the United States and of course the Supreme Court rejected that as well so uh that argument's been made and it's lost 127 years ago and it will fail again today as it already has in front of five federal courts and at that time the Supreme Court held that the phrase subject to the jurisdiction thereof was an extremely
▶ 1:25:21narrow qualification that only accepted three specific classes of persons from citizenship so can you tell us what those three classes were and why they do not apply and implicate children of undocumented immigrants yeah so the Reconstruction Congress was very clear the Supreme Court agreed in Wan kimark and subsequent cases that the subject to the jurisdiction thereof language applied to three groups one was the children of diplomats and cular officers for the obvious reason that the French ambassador to the United States
▶ 1:25:51doesn't want their child born in the US to be a citizen and their situation in the United States is they're representing a foreign power in fact the embassy itself is considered foreign territory um Native Americans that was the only really substantive discussion the Reconstruction Congress had at the time they uh suggested this addition of the citizenship Clause to the 14th Amendment and they pointed out in many discussions that the Indians Native American tribes were sovereign powers with whom we had treaty relations who were not subject to US
▶ 1:26:21law they had their own tribal courts and laws and at that time they wanted to be excluded and the Reconstruction Congress didn't want them to be automatically included I should note that there is now a federal law that gives Native Americans automatic Birthright citizenship the final group I'm happy to say we've never encountered which is enemy aliens in occupied territory great I'm going to I I'm going to stop you just because I have another question here one of the lawsuits blocking the order was brought by an individual in my state Alicia Lopez she was born and raised
▶ 1:26:51in El Salvador but she fled the country after experien expc in a violent and abusive situation she had applied for Asylum has received a work permit while her application is pending she's lived in Washington state since 2016 she has a 5-year-old son with her partner she's pregnant with a second child who is due in July I want to bring this back to the real impact of uh what would actually happen Birthright citizenship has generated this deep sense of membership in our society a collective commitment to a shared value and opportunity equality
▶ 1:27:21and contribution that's allowed America to th what's the impact on real life Americans across this country yeah the to to eliminate Birthright citizenship would be create a permanent underclass a a cast system which was the very result the Reconstruction Congress intended to end thank you so much I yield back Mr chairman Thank The Gentle lady from Washington I now recognize the committee chairman Mr Jordan I thank the chairman and thank you for holding this hearing I would yield my time to the gentleman from
▶ 1:27:52Arizona I thank the gentleman for yelding um I'm going to ask each one of you a question related to this scenario cuz this is a real scenario in Yuma Arizona they have one hospital for about 150,000 people they have a small maternity unit about 8 to 10 beds um many times that the beds every one of them is occupied by a mom to be who is crossed our border usually through the cocaa
▶ 1:28:22reservation I know right where they come come and they go in and uh they have a baby and then they both depart to go back south across the border and I guess my question for each one of you is this under the original meaning because I'm trying to establish you've all made it clear I want to make make it clear under the original meaning of the 14th Amendment Miss Frost is that child is that child a citizen of the United States of America
▶ 1:28:52yes of course because the thank you appreciate that and now Mr Cooper no Congressman not under the citizenship Clause of the 14th Amendment Mr MC mccotter I agree with Mr Cooper that's correct Mr O'Brien no because she's not lawfully pres in the United States the mother so let let's let's consider we have a very very disparate interpretation of Wan Kar
▶ 1:29:23we've got Miss Frost who position and I don't want to M misstate it but that but that uh the original Allegiance or the jurisdiction thereof uh displaced the allegiance requirement right so there's there's no more Allegiance requirement is that fair is that a fair description of what you're saying at least on on that PO portion I'm not sure where you're referring to by the original Allegiance requirement there was never an allegiance requirement there was The Dread Scott Decision okay so so that's that's what I'm getting
▶ 1:29:53at you believe there was never a a jurisdiction thereof never required allegiance to the Sovereign and so now I want to clarify that um when you get to that Mr mcot why is it that in Kim Wong kimark the court said that the plaintiff or the appellant in that case um was actually a citizen of the United States the Supreme Court's rationale is a little hard
▶ 1:30:23to follow and long KARK to be honest but it does say that the parents there were lawfully present with the consent of the Sovereign which is the United States the equivalent of our modern-day LPR lawful permanent residence so so if if because that's the way I read Wan kimar they're talking about there's lawful presence and there's an intent intention to denom asile which has a a legal term of art meaning you're intending to live there stay there and be part of that Community that's that's really what that gets at so I'm baffled
▶ 1:30:54I'm baffled by the notion then that if you cross through the Kapa reservation and you go into the the regional hospital in Yuma and you have a baby and your intention is to immediately leave and go back home you're not legally present in the United States nor do you have an intention to be here why then does that baby entitled to Birthright citizenship
▶ 1:31:26Cooper sorry Congressman I that that baby is not entitled to Birthright citizenship and I think Wong Kim Arc uh does not in any way support the claim that it's entitled to that to Birthright citizenship as I mentioned previously the issue in that case was very clearly limited to uh aliens who had established a permanent and lawful domicile in this country so
▶ 1:31:56whether you think that's uh sufficient or or or not it clearly doesn't sweep within it people who have come into this country illegally and I would also point out Juan kimart Arc itself said there are some certain irresistible conclusions to be drawn from the citizenship clause and including that the 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within
▶ 1:32:26the territory in the allegiance and under the protection of the country and the reason they concluded there and and and I have to I have to go there because I want to go real quick because it actually Segways from that nicely and is and that is one of the things and actually miss Frost kind of uh kind of she indicated this when the in the Indian tribe case when we look at the that is because there is is respect for a
▶ 1:32:57Tribal Indian having a an allegiance to that tribe that's very different than someone who crosses over has a baby and returns to that to their native country isn't that true Mr O'Brien I'll go to Mr O'Brien yes that's true and in Wong Kim Arc what the court did was they inferred that long-term residents was an intention by someone who was working toward citizenship and wanted to be a long term member of the community in the United States so the court was
▶ 1:33:27at pains to point out that there were two qualifications one that the individual attempting to transmit citizenship had to be lawfully present in 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 a simple obligation to to obey the laws while present thanks gentleman from Arizona I thank the witness and I will now recognize the gentleman from New York Mr Goldman thank you Mr chairman Mr o'ri
▶ 1:33:57I want to go back to where you were right there um so and I think Mr mot said this as well uh your interpretation is uh to be lawfully present in the United States with consent of the Sovereign M Mr mcot said that's the equivalent of a lawful permanent resident is that is that correct Mr mot that's correct yes and you agree Mr O'Brien yes I do um why is a Visa holder not
▶ 1:34:27lawfully present in the United States with consent of the Sovereign well first of all a Visa holder is a person who has a permit to board a common carrier and come to the United States and request admission a person who has been admitted to the United States by the appropriate authorities following inspection by an immigration officer is lawfully present so someone with a Visa work visa that could be go on for years and years you're saying is not lawfully
▶ 1:34:57present no that's not what I said at all I said a person who has been admitted in a Visa classification like H1B F1 so on and so forth is lawfully present while they're in compliance with the terms of the immigration laws okay so I agree um but you're trying to restrict this to Green cards and the problem that I'm addressing here is this executive order is not restricted to Green
▶ 1:35:28cards it prohibits citizenship if neither parent is either a lawful permanent resident or United States citizen do you agree with that Mr O'Brien yes I do the court in W Kim so in Wan Kim AR exactly in Wan Kim Ark they use the definition you just said which would include Visa holders and yet the executive order expressly excludes Visa holders
▶ 1:35:58so let's move to the second Point Allegiance this is what uh the subject to the jurisdiction thereof that you all all three of you have talked about relates to Allegiance um I'd love to see a clear and uh definitive definition of Allegiance but let's just talk about what you all were were saying um means assimilated is that correct Mr Cooper that's one of the things
▶ 1:36:28that you said uh I I think that uh only a person or at least an Indian under the view of the framers of the citizen ship Clause who had been assimilated and had left the reservation and therefore had essentially abandoned that person's allegiance to the tribe and had shifted their allegiance to the United States just like others could so if you move off of a tribal reservation and
▶ 1:36:58you move across the street at the time where you're talking about you know originalism here and you move across the street then all of a sudden Your Allegiance has changed from the Indian tribe the Native American tribe to the United States that's what you're saying do you dis do you disagree with that I do disagree with that I think I think the notion there is there a time requirement you must have you must live off of the reservation for one year 2 years 5 years
▶ 1:37:29no no no there's not so this the problem is you start talking about Allegiance and you're excluding green card holders now green card holders of course are also citizens of other countries and yet somehow in this definition of allegiance that a green card holder has more allegiance to the United States than that person would to by
▶ 1:37:59necessity by definition than that person would to a foreign country um that seems like a pretty bold statement to be asking the Supreme Court to say and what scares me about it as an American Jew when Jews are often accused of dual loyalty with Israel is you're now getting into a situation where the government has to
▶ 1:38:30determine who which country any individual has more allegiance to the country that they have immigrated to and even if they are a lawful permanent resident or the country of their citizenship and it baffles me that the Republican Party The Party of small government the party of federal ISM and states rights would sit here and say yes it is the government's job to
▶ 1:39:00create a definition of Allegiance which somehow is required in order for Birthright citizenship now look Mr Bigs and you may not like the example Birthright tourism you call it of someone coming into the United States having a baby and then leaving if you don't agree with that that's fine pass a constitutional amendment because this is clear and this definition that you're providing is
▶ 1:39:30unbelievably vague and very very careless and I look forward to the Court's rejecting it thank you I'll yield back thank you the gentleman from New York uh as individuals who recite the Pledge of Allegiance down on the floor of the House of Representatives every time we open the house I think those of us understand what Allegiance is particularly the gentleman from Texas who wore the uniform of our Armed Forces I think he's fully aware of what arm of what Allegiance is and I would also note that one of the very few responsibilities our federal government has is
▶ 1:40:01actually making those determinations as to who should be citizens and who should be in our country correct I would now recognize the gentleman from Texas than Mr chair I understand more than anyone that we are a nation of immigrants but there's a difference Stark difference between giving citizenship to the children of slaves the children of those subject to the Middle Passage the children of sharecroppers and the children of those who are once considered property and giving citizenship
▶ 1:40:31to the children of people who cross the border illegally stay in taxpayer funded luxury hotels who receive free Xboxes free cell phones free flights around the country and three Square meals a day there's a big difference my great great-grandfather was born on a plantation Rose down Plantation in Louisiana he had to join the union Color Guard to gain his freedom by morphing the citizenship Clause into something that it wasn't meant to be it's demeaning to descendants
▶ 1:41:01of slaves like me and not just me who served this country but my father is a retired Colonel my sister went to West Point as retired Colonel my brother went to West Point we are talking about a direct descendant of a slave that earned earned the right to be in this country and passed that ilk down to his ancestry people bled for it people died for it and it made something the purpose of the 14th amendment that President Trump that that President Trump's Birthright citizenship executive
▶ 1:41:32order is that CI is that the citizenship Clause of the 14th amendment was never meant to apply to Children of illegal or legal aliens allowing Birthright citizenship to stay in place dilutes the citizenship of not just black Americans like me but every single American citizen they had to earn it the right way let's say this in Black and white either you're us either you're a US citizen or you are not now the left has spent decades cheapening what it means to be an American citizen
▶ 1:42:02they've quite literally been chipping away at the basic value of American citizenship they pretend to be altruistic but we know the truth Azie Osborne daughter said on The View that we have to let illegal immigrants in this country because who else will clean toilets we hear it all the time who will pick our crops and even though that we know that American citizens are the majority of those people picking our crops we know what's what you're insinuating and all this must in now Mr O'Brien
▶ 1:42:33earlier you brought up birth tourism and how it's an issue of National Security could you kind of expound on that and talk about why that's an issue as somebody that served this country this is this is near and dear to my heart sure um if we give us citizenship to absolutely anyone who is born on our soil that takes the United States out of control of who becomes a US citizen and since as everyone here knows the people are the government of the United States that puts us in a position where we could be allowing people who are citizens
▶ 1:43:03of adversary Nations to be coming here having children who gain US citizenship and then are trained to be adversaries of the United States it puts them 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 so over the course of the last four years have there been C of of Citi people that have enter enter our country that are our adversaries that have come to this country that that we know of and had children yeah there have been
▶ 1:43:33a massive number of people who have come here um and and not just over the last four years was happening before I worked in the National Security apparatus of the Department of Homeland Security and I worked on many cases where that had happened is there any other country in the world that you know operates like this I'm saying this from the standpoint of somebody deployed to Saudi Arabia and other countries around the world this would never happen anywhere else by the way can you name a country in modern or recent history that has behaved like this and what has been the outcome of
▶ 1:44:03this type of behavior meaning that is this is is this even a sustainable model given the number of people that have entered this country over the course es especially the last four years no it's not a sustainable model the only other place where it existed was in a number of the Latin American countries and most of them did away with it uh after they were attempting to attract migrants in order build their Industries and build the number of people living in those countries so this is something that's nearly non-existent thank you Mr BR the left throws love thy neighbor in our face and they say that we have to have open borders in
▶ 1:44:33order to be nice to people well I as want to tell the left we have a bunch of neighbors right here in our country that are Americans you see your neighbors are the homeless veterans that you drive by to work our neighbors are the way we teens running away from a bad home environment your neighbors are the families who just got evicted from their Department what do all those neighbors have in common they're all Americans and let's let's use our American taxpaying dollars to put Americans
▶ 1:45:04first news flash this is why president Trump is our president because it's past due that we put the American citizen first and once we solve our issues here I'm a Christian by God Let's help everybody else but at this point we have enough problems to fix in our own country in this must stop thank you for your time thank the gentleman from Texas I will now recognize the gentle lady from Vermont thank you Mr chair uh today we've heard a lot of different legal theories about interpreting the Constitution
▶ 1:45:35and at times I know it feels a little bit like a law school lecture so I'd like to kind of cut through the legal e and and clearly focus on something that I find troubling what Republicans are offering is a plan to redefine who gets to be American and it's a big step towards a country where americanness itself applies to only a privileged few a country where future and past Generations
▶ 1:46:05are relegated to an underclass status they're trying to stake out who is a real American and it will leave a whole lot of people out and this I think is a frightening road to go down the arguments we've heard have been with us since our found ing as you pointed out uh Professor Frost the dreads Scott Decision changed the common law understanding of Birthright citizenship for all it enabled slave owners to use the law to take away citizenship
▶ 1:46:36to take away identity to take away the freedom of black people the 14th Amendment and the Civil Rights Act of 1866 were a direct response to Dread Scott the law grants citizenship to people born in this country plain and simple yet here we are over 150 years later talking about how maybe the straightforward language of the law could possibly or should actually be used to deny citizenship for
▶ 1:47:06often people of color Miss Frost did the framers of the 14th Amendment intend to extend Birthright citizenship to the children of slaves and other non-citizens yes the Reconstruction Congress could not have been clearer they used clear language and their discussions that followed made this clear they said of course they wanted to overrule Dread Scott which include giving citizenship to all enslaved Americans including those who had arrived illegally because they' been illegally imported after the laws
▶ 1:47:37prohibited it they were the illegal aliens of the day the Reconstruction Congress said we want them to have citizenship the second group explicitly discussed was the children of immigrants in particular the children of Chinese immigrants that was the intention of the Reconstruction Congress and they achieved that through clear language thank you through clear language and citizenship was based on where you were born correct and not actually the identity of your parents of course we are a country that doesn't V visit the sins of the father on
▶ 1:48:07the child we believe in uh the idea that all people born are equally American because they are born in the United States our constitution rejected titles of nobility explicitly we of course rejected a hereditary monarchy America is about birthplace it's not about ancestry or lineage so is it safe to say that the 14th Amendment enshrine citizenship for an entire class of people and their ancestors yes of course and any other real rule
▶ 1:48:37would require a test of lineage and ancestry for every new child born in the United States I'd like to quickly add 33 countries have Birthright citizenship in response to Congressman Hunt's question including Mexico and Canada we are not outliers exactly I'm so glad brought that up cuz I had it in my notes to bring that up as well um so what if the Supreme Court decides that the 14th Amendment actually does not give citizenship to children born in this country to non-citizens what if the Supreme
▶ 1:49:07Court made that ruling where does that leave the descendants of those who've been granted Birthright citizenship yeah I mean it would unwind the citizenship of the entire country we are a nation of immigrants a very significant majority of us Trace back really other than Native Americans Trace back our lineage to an immigrant parent grandparent 5% of our military are the children of immigrants now all of us when we have a baby the first thing we'd have to do is produce proof of our citizenship
▶ 1:49:38imagine a generation from now it wouldn't be good enough to show your own birth certificate you'd have to show the lineage this is exactly what dread uh what the Reconstruction Congress wanted to prevent and it's exactly the result that Dread Scott wanted I appreciate that so much so let's follow this logic say a person's grandparents came to this country from Central Europe in the 19th century an investigation reveals that those grandparents use false pretenses or false names at Ellis Island does that mean based on what my colleagues would be saying today that the present
▶ 1:50:08day descendants of those grandparents are not citizens the logic of the position is that every single person who considers themselves an American perhaps people in Congress certainly people voting would suddenly be under scrutiny and any flaw in their am immigration history going back to the contract Labor Act of 1885 where if you came to the US with um a a contract to work that was legal many people violated that law in 1885 all of those people their descendants today could have their citizenship questioned and could be stripped of
▶ 1:50:38their citizenship under the executive order thank you and if I could in conclusion because I see that I'm out of time doing away with Birthright citizenship is an intentional choice to give this President I believe massive power to dictate who who is and who is not an American I yield back thank the gentle lady from Vermont uh now recognize the gentleman from North Carolina thank you Mr chairman thank you for this hearing and uh to all of you that are serving on this panel today the issue of birth tourism
▶ 1:51:08is a big concern for me and stands out as a glaring example of a loophole being taken advantage of Mr O'Brien in your testimony you uh shared a little bit ago with Mr Hunt about the National Security risk associated with widespread birth tourism what are among the top countries that are taking part in this practice where do they come from well the largest is China uh the second largest is India um and then it drops off from there but there's still large numbers of people
▶ 1:51:38from a large number of countries that we should have concerns about very good and aside even from the National Security risk that you've already addressed this practice puts many of those involved in coming here In Harm's Way um can you talk about how the birth tourism can harm the expectant mothers involved in this uh certainly it it's not advisable uh at least according to all of the uh medical personnel that I've talked to for women who are in an advanced stage of pregnancy to do something like a 14 to
▶ 1:52:0924-Hour flight from China uh we have seen repeatedly along the southern border people who are traveling in extremely harsh environments attempting to cross the Rio Grand uh while expecting a child imminently and so this is a is a danger to both the uh mother and the child thank you I'm also curious uh while we're here Mr O'Brien about the comparison between how the United States treats this concept of Birthright citizenship when compared to the rest of the
▶ 1:52:39developed world is it common for other countries to automatically Grant citizenship to those born on their soil no it it's it's not common uh it's something that's most typically associated with the United States Latin America Canada and a few other countries that have extremely truncated variations of it and how would you say America compares to most EU countries in regards to this issue uh it it's profoundly more broad most countries that have Birthright citizenship
▶ 1:53:09have significant restrictions on it compared to the United States very good Mr mcot I I'd like to hear from you about how Congress can play its part in this conversation I mean it's one thing for executive orders it's another thing for Court decisions and interpretation what steps can Congress take to support president Trump's executive order uh I authored an amikas brief on behalf of many members of this committee and we submitted that in all the
▶ 1:53:39almost all the district court proceedings and in several of the Circuit Court proceedings so the court is at least aware of these members views on the historical understanding of the jurisdiction Clause that's one thing of course Congress could do Congress obviously could get hold a hearing which we're having now and I'm glad to participate well I'm proud to be a co-sponsor of Representative Brian Babin's Birthright citizenship Act of 2025 which does clarify which individuals automatically receive American citizenship at Birth in fact I've told
▶ 1:54:09folks if ever there's a time for us to clarify and codify that time is now would would you deem it necessary that Congress clarify this question surrounding surrounding the citizenship clause or or should it be left to other institutions the Supreme Court has long held that the decision of citizenship is left to Congress except of course as dictated by the 14th Amendment the courts can interpret the 14th Amendment as they're doing now but otherwise it is exclusively a congressional prerogative
▶ 1:54:40so we do have an opportunity now and with the ACT introduced to uh to take some action on this and um with that Mr chairman now you'll back my time I think gentleman of North Carolina I now recogn the gentleman from Maryland and the ranking member of the committee Mr chairman thank you very much um and thanks to all the witnesses for being here and special greetings to my former colleague Professor Frost I want to start with you uh because there's been a a major flurry of litigation about the onslaught
▶ 1:55:11of unlawful and unconstitutional executive orders that have come down from the administration and um this executive order has appeared in four different courts and as I understand it uh all four of them have uh worked to stop it either through a temporary restraining order or um a preliminary injunction and they were appointed by my count uh by presidents Reagan George W bush Barack Obama and Joe Biden two Republicans two Democrats and take a look at what they said here's uh uh judge
▶ 1:55:41uh kunau uh who was nominated by President Reagan citizenship by birth is an unequivocal constitutional right it's one of the precious principles that makes the United States the great nation that it is the president cannot change limit or qualify this constitutional right by executive order I can't remember a case that presented a question as clear as this says judge kunau and the fact that the government cloaked what is in fact a constitutional amendment under the guise of an executive order
▶ 1:56:11is equally unconstitutional the Constitution is not something the government can play policy games with here's US District Judge llamp from New Hampshire been nominated by President Bush the plaintiffs are likely to suffer irreparable harm if the order is not granted here's US District Judge Deborah Borman nominated by President Biden to the court in my home state in Maryland the executive order interprets the citizenship Clause of the 14th Amendment amendment in a manner that the Supreme Court has resoundingly rejected
▶ 1:56:42and no court in the country has ever endorsed and finally a check out judge sokin nominated to the district court in Massachusetts by President Obama who said says the 14th Amendment says nothing of the birthright citizens parents in efforts to import such considerations at the time of enactment and when the Supreme Court construed the text uh was rejected no federal judge to my knowledge has upheld uh this executive order against legal attack tell me
▶ 1:57:12why you think there's such unanimity across the Spectrum among the judges well first of all the language is crystal clear of the 14th Amendment there are thorny and complicated and Broad and vague Pro vague provisions of the Constitution but the citizenship Clause could not speak more clearly that's what the court said in w k Mark its language is universal you know I did a little research on this last night and I I found that the leaders of the writing of the first section of the 14th Amendment were Republicans from
▶ 1:57:43Ohio right uh John Bingham uh was described as the primary author of the citizenship Clause by uh Supreme Court Justice Hugo black who said he was the 14th amendment's James Madison the second founder who most worked to realize the universal promise of Madison's Bill of Rights and Jefferson's Declaration of Independence and another great Ohio Republican US senator Benjamin Wade um insisted on making the citizenship Clause perfectly clear to avoid any backsliding in times of high
▶ 1:58:13partisan feeling he said I've always believed that every P person of whatever race or color who was born in the United States was a citizen of the United States but by the decisions of the courts there's been a doubt thrown over the subject and if the government should fall into the hands of those who are opposed to the Views that some of us maintain those who have been accustomed to take a different view of it they may construe the provision in such a way as we do not think liable to construction at this time unless we fortify and make it very strong and
▶ 1:58:43very clear if we do not do so there may be danger that when party Spirit runs high it may receive a very different construction from that which we the founders put upon it now so I wonder what you think Senator Wade might be saying about the debate today about whether it's okay just to throw away the first sentence of the 14th Amendment yeah he was remarkably preed he foresaw a future in which a future political party would want to take away citizenship and voting and
▶ 1:59:13political power from groups of Americans it didn't like and didn't view as fully American all right I'm sorry to rush you along here but um the original Purp of the 14th Amendment remain perfectly clear for anyone who's an originalist right they wanted to stop the government from reconstituting a racial or ethnic cast system based on the inheritance of a subordinate or a superior legal status from one's parents in post reconstruction America nobody would ever become a slave or a surf or a legal
▶ 1:59:43Outcast or a prince or a princess or a king or a count at Birth because everybody here would attain equal citizenship at Birth am I capturing it correctly you are all right I yield back to you Mr chairman I thank the ranking member of the committee and I will now recognize Mr gothman for five minutes I'd uh like to ask one of the three gentlemen on the right here I had other committee hearings so I'm sorry if I'm going over
▶ 2:00:13uh things we've already dealt with but it says in the 14th amendment that citizens are people who are all person born in the US and not subject to any foreign power I mean they must have had something on their mind when they said not subject to any foreign power you does anyone want to comment on that how that little phrase there uh how that affects what the original drafters intended I addressed some of that in my opening
▶ 2:00:44remarks sir so I think the best understanding is that it referred to children who would be deemed citizens of their parents' home country as of the moment of birth okay and and right now in this country if your wife goes to Italy and has a baby does she become an Italian citizen would anybody say that I'm not sure what Italy's laws are I would defer to Mr O'Brien on that I can say that at the time of the 14th Amendment for example English citizens born in the US would still be deemed English citizens and that's why they would not be entitled to Birthright
▶ 2:01:15citizenship okay uh 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 that's a limited type of Birthright citizenship could you elaborate on that uh yes in most of those countries there are restrictions that require at least one of your parents to be there lawfully uh in some
▶ 2:01:45cases it's Birthright citizen Citizenship com uh combined with a familiar lineage um there's there's all different ways of doing this what I can say unequivocally is that the United States is the only place that does it the way it's done here okay so if you would interpret it the way Some People Want it interpreted you would say the United States would be a clear outlier in the globe yes and would they have been a clear outlier in
▶ 2:02:161866 well yes because at that point most other countries in the world were monarchies and the Monarch considered you to be something akin to property owing permanent Allegiance so regardless of where you were born um you could still be considered a citizen depending upon how you had left the country of course we have records of the debate at the time in 1866 there's a a quote here from Senator Howard from Michigan uh making it clear I think that
▶ 2:02:46he felt uh we were excluding people who are foreigners or aliens normally um do you want to elaborate on that what the what the drafters at the time thought sure I think the drafters at the time were concerned about the treatment of emancipated slaves uh During the Reconstruction time frankly at at that point in time there was a relatively small number of people in the United States and as I had stated in my opening remarks the concept of illegal alien was not
▶ 2:03:16the same as it is now was there any indication at that time that in the Hy pathetical that the opponents of President Trump site today was there any indication that the drafters of the amendment believed that if somebody just came here as a visitor or whatever we talk about you know people coming from China and landing in San Diego or whatever that the equivalent would have resulted in people being a citizen is there any evidence of that in you know 1865 1866
▶ 2:03:47no the court in Wan Kim Arc was very explicit when it said that it was referring to people who were residing in the United States with the permission of the government there's no evidence of any of The Debaters at that time saying wish we're opening the door to become American citizen anybody who gets off you know just gets off a boat and no and I think if you stop and think about the way the amendment was drafted if that's what they wanted they could have just left the qualifying statement out and said anyone born in the United States
▶ 2:04:17is a citizen but they added subject to the jurisdiction thereof for a reason reason exactly it's in there for a purpose you know it's an amendment to the Constitution of the United States you wouldn't put that in there if you wanted anybody who just shows up to be as a baby to be a citizen correct that's correct okay um uh do e do you the others us know any examples of other countries any other countries that
▶ 2:04:47have something this broad just so we understand the way an average person thinks about these things yes I'll say that 32 countries have Birthright citizenship just like the United States including Canada and Mexico okay Mr O'Brien I think she's thinking there a little misleading there when she says just like the United States even though there are no European countries are they when they have Birthright citizenship just like the United States I think which you told me that's not true no to the best of my knowledge at present there is some kind of limitation
▶ 2:05:18on Birthright citizenship in all the places that have it well thank you all for tolerating me and we'll send it back to the chair thank gentleman from Wisconsin I now recognize the gentle lady from California thank you Mr chair and ranking member I think there's a quick video that I have um you don't need to be a genius to realize that Trump's not talking about babies that come from Norwegian V JJs no
▶ 2:05:49he wants to wipe out the Constitution so that he can whiten America that's what he's planning to do here all right I just thought since you know the South Africans are in the news I would play that um I had a question for you Mr O'Brien is the equal protection Clause part of the 14th Amendment yes or no yes it is okay thank you and Mr mcot is the due process clause part of the 14th Amendment yes or no yes although each Clause uses different language yes I do know but
▶ 2:06:19thank you for that um I asked questions because I have heard no objection from this body no quarrel no disagreement with the fact that the equal protection clause and the D Process Clause are embedded in the US Constitution through the 14th amendment in fact this country's president that so many rever 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 do process works when applied
▶ 2:06:50without prejudice if only it would work for the rest of us like that but I digress the point is those tenants are here to stay with Birthright citizenship so I want to talk about the times that gave rise to the 14th Amendment it was 1868 there was the aftermath of the four-year divisive destructive Civil War that killed roughly 3/4 of a million soldiers or 2% of the population resistance in the form of reconstruction a massive tsunami and
▶ 2:07:20assumed to be us territ that killed 70 people and in the aftermath of the 1868 Louisiana Constitution which gave black men the right to vote and a public education you had Louisiana the Louisiana Massacre where black people were murdered trying to vote as people would say from my hood in La the white folks went cray cray and in spite of all of that white congressmen showed up in 1868 to debate the 14th Amendment because in the midst of the madness
▶ 2:07:50and violence of of the time it was that important and it passed with Birthright citizenship those three Clauses and these tenants forever changed this country the 14th Amendment is a pillar of American law in a good way and it has been for 160 years everyone recognizes that it should not be touched that it is sanran even Jus as Scalia and Scalia whose ideology I do not support
▶ 2:08:20his reasoning is that the full 14th Amendment which includes the due process clause and the equal protection Clause as well as Birthright citizenship was based on originalism textualism and traditionalism and that one should consider the political and intellectual climate beliefs and prejudices of the time it was ratified and the amendment should be protected which is why it is worth revisiting 1868 because the origin story of the amendment is as applicable now as it
▶ 2:08:50was then you had a Democratic president impeached in 1868 and a Republican president impeached in 1921 you had political violence in 1968 with the Louisiana Massacre and an Insurrection that happened here in 2021 where Capitol Police were speared with American flags you had a tsunami in Hawaii in 1868 and a fire again in 2023 you had an economic turndown in 1868 and you have $15 eggs under Trump right now in 2025
▶ 2:09:21same environment toxic hostile deadly and let's be clear they had immigrants back then too Irish Jews Germans Italians people who couldn't speak English but they saw through the moment and passed the 14th Amendment and it's not like this country has not had moments where people have felt under attack we've had Jim Crow World War II with the Germans McCarthyism the Japanese and internal camps
▶ 2:09:52the Vietnam War and Birthright citizenship has survived all of that and now not because of War but because somebody can't get a job at Walmart because of xenophobia fragile ego and mediocrity 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 in the Constitution during those hostile times we can keep it in law during ours the climate is
▶ 2:10:22not different it is the patriotism of the Republican party that is different and with that Mr chair I yield back well I would uh just observe for the record that uh the phrase white people be cray cray uh is itself cray cray and I will now recognize the gentleman from California and also racist of course I was wondering how long it would take the Democrats to play the race card and I want to thank my colleague from California for satisfying that Curiosity I think we can
▶ 2:10:52thank uh the Democrats under Joe Biden for bringing this issue uh to the Forefront the mass illegal migration over the last four years uh has uh has made answering this this question a necessity have those who've illegally entered our country in defiance of our laws and who are subject to deportation under those laws can they be considered as having accepted the jurisdiction of the laws that their very presence defil
▶ 2:11:22I don't think it does I me we we know that that phrase under subject to the jurisdiction thereof we know that means former slaves are citizens that was the stated purpose of the amendment that's the plain language of the amendment passed by the way over the objections of the democratic party at the time we know from the Congressional debate that its authors understood its meaning to exclude foreign Nationals who were merely passing through the country but somewhere along the the way it
▶ 2:11:52it it simply seems to have be become assumed so um my first question I guess begin with you Mr O'Brien um have any laws been passed that specifically provide for Birthright citizenship for illegal migrants no there have been none and one of the reasons that this interpretation persists is because this wasn't an issue at the time that the case was decided so it was left alone how how did it come to be that it was simply assumed uh
▶ 2:12:22nobody knows that when I was at Fair we did an extensive research project where we spent hours trying to find this um and we couldn't find any commentary on the uh Wan kimar decision discussing the import we couldn't find any government directives indicating that this was the rule it just appears to have started happening in the mid 1920s Mr mcer can you offer any uh light on this subject I I think that's probably right I think it's probably
▶ 2:12:53practicality uh people weren't really paying attention perhaps and that's how we ended up with this kind of so no act of Congress no Supreme Court decision obviously no executive order until a few ago uh touching on this subject Mr mclen I may if I may just jump in here I think uh the unfortunate reality is that the Wong Kim art case was misinterpreted in much the way I think that my friend Professor FR
▶ 2:13:23Frost here misinterprets it to have been a holding some of the some of the very broad language that is clearly dicta instead of the narrow and specifically identified holding which was quite limited to people who are in this country uh and and and and they who who bear children in this country who have a permanent lawful residence in this country at least and it just kind of simmered
▶ 2:13:53algi it just kind of simmered in the background until we had this this Mass historic of uh uh uh illegal migration uh and and now we have to confront it um you know the chairman says the issue belongs to Congress and I'd say well sort of obviously can't Congress can't deny automatic Birthright citizenship by Statute if that's what the 14th amendment guarantees um but of course neither could an executive order uh and Congress
▶ 2:14:23would have to propose a constitutional amendment to the states if that's what the 14th Amendment actually means but if the 14th Amendment does not provide automatic Birthright citizenship and no statutes have been passed um and and no other supreme court orders issued it seems to me that no law would be needed to deny it it was never extended in the place is that Mr is that essentially correct yes that is correct
▶ 2:14:54the the question that Wan kimar has been interpreted as addressing was never the question that was before the court the case came before the court in order to determine whether Wong Kim Arc was an individual who fell into one of either the privileged or prohibited classes under the Chinese Exclusion Act which itself was a modification of a treaty of uh trade and friendship between China and the United States they were they they were here permanently within the laws within the jurisdiction of the United States
▶ 2:15:25by by Act of a ratified treaty yes that's exactly it so um if that's the case and wouldn't the president's executive order Simply Be restating existing law I believe that's exactly what it does Mr mcer that's what my amikas brief on behalf of members of this committee says Sir Mr Cooper I agree with that congressman mclen and I will just assume Professor Frost disagrees um that's it for me Mr chairman i y back thank gentleman from California I will now
▶ 2:15:55recognize the ranking member the gentle lady from Pennsylvania Miss scand thank you um you know the effort to end Birthright citizenship is hardly something new it's been the long-term goal of anti-Semitic and white nationalist groups for decades uh the claims largely based on the bigoted great replacement conspiracy theory um same conspiracy theory that is inspired a lot of deadly terrorist attacks in recent Years and we're hearing really
▶ 2:16:25uncomfortable Echoes of some of that uh here in Congress in this day and age um you know as we're listening to some of these statements I was reminded of one of our predecessor statements here the great Barbara Jordan who at a critical moment in our country's history talked about we the people and when that document was completed in September of 87 she neither She nor I nor Professor Frost were
▶ 2:16:55included in that document but as she said through the process of amendment interpretation and Court decision we were finally included and as members of Congress now we should not sit here and be idle Spectators much less participants in the diation the subversion or the destruction of the Constitution and I would submit that the effort we're seeing here today to try to reinterpret and twist um the
▶ 2:17:25clear language and legislative history of the birthright citizenship Clause would be such a dimunation subversion or destruction of the Constitution now Professor Frost um you've studied this for quite a long time you unlike several of the people here are not a contributor to project 2025 um we've heard a lot about these specific language subjects to the jurisdiction of why did they choose that phrase
▶ 2:17:55the Reconstruction Congress told us clearly what they wanted to do there they wanted to exclude the children of diplomats and ambassadors and they also discussed at length the need to exclude children born into Native American tribes which were separate foreign sovereigns with whom we had treaty relations with their own courts and laws okay um it did strike me the inconsistency in claiming that an undocumented IM immigrant is not subject to the jurisdiction of the United States when they are in fact um subject to our
▶ 2:18:26criminal code paying taxes Etc can you talk about that and talk about how that relates to the issue of the exception for diplomats and their children yeah sure of course all children of immigrants including and all immigrants including undocumented immigrants are subject to the laws of the United States uh president Trump knows that better than most and that he is seeking to deport and enforce the immigration laws and other laws fully against this group um also add something I mentioned before which is the Reconstruction Congress was well aware there were people in the United States
▶ 2:18:56in violation of the law those were the enslaved African-Americans brought to the United States in violation of federal law and of course the citizenship Clause was intended to provide them with citizenship despite the fact they were there in violation of US law um I noticed you're reacting to some of the testimony about uh the us being some kind of outlier with respect to Birthright citizenship or or having at looked like you might have a a different interpretation can you expand on that yeah with with all due respect to
▶ 2:19:26Mr O'Brien who is uh a deep expert in US immigration law I don't think he is 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 his Canadian citizenship in 2014 because he was born in Canada to a US citizen mother thank you you um I also was struck by the idea that we would be putting a rather strange
▶ 2:19:56burden Upon Our maternity Wards and our states if every time someone is born they have to determine uh the citizenship or the immigration status of their parents and 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 whe whether maybe they just overstated their visa to study here if they were for example from South Africa
▶ 2:20:27um 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 and as an immigration lawyer I will say many people lack documentation of their citizenship or of their immigration status if they're lawful permanent residents um they may not be able to show that and so we are asking these people the time of their child's birth to prove this or risk having their child
▶ 2:20:57be deemed an undocumented immigrant from the moment it's born okay I I do think it's interesting that this is hardly the open and shut case that our colleagues would suggest uh Senator Cruz was recently quoted as saying that's actually a disputed legal question there are serious scholarly arguments on both sides Etc um but with that I see my time has expired so I would just have a unanimous consent request to enter into the record a statement of the leadership conference on civil and human rights uh without objection thank you
▶ 2:21:27I yeld back thank the gentle lady from Pennsylvania I also uh without objection as to insert in the record um a collection of quotes from the uh gentle lady from Texas Miss Jordan uh the airport Bears her name I fly in and out of in Austin Texas uh every week uh but there a collection of quotes um from from her service uh as chair of a commission uh regarding immigration in the 1990s in which she makes very clear her position that the enforcement of borders
▶ 2:21:58uh security is important the importance of having uh immigration policy that works is important that we should not have amnesty that we should immigration should not be a path to public benefits she was very clear in her language about that uh and numerous other quotes from The General lady from Texas Miss Jordan and without objection I'll assert that in the record and I will now recognize the gentleman from Missouri Mr H thank you Mr chairman and thank you to the witnesses for being here today um my uh colleague from Pennsylvania mentioned uh the term white nationalism
▶ 2:22:28and 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 and then in the wake of that Civil War uh sought to deny them of the rights of citizens ship as as well and in the in that context the 14th amendment was enacted to make sure that white nationalist Southern
▶ 2:22:58Democrats not deny black slaves former slaves of their of their of their rights and therefore made it clear they were citizens but um Mr ma one of the authors of the 14th Amendment Senator John Bingham said that the citizenship Clause conferred citizenship to every human being born within the jurisdiction of the United States um of parents not owing allegiance to any foreign sovereignty another um another author of the 14th
▶ 2:23:28Amendment Senator Lyman Trum Trumble uh stated that that subject to the jurisdiction of the United States and the citizenship Clause meant not owing allegiance to anybody else do aliens um and particularly illegal aliens owe Allegiance uh exclusively to United States or do they uh still bear allegiance to their home country they would still bear at least partial allegiance to their home country and and uh and therefore you know in
▶ 2:23:59part you know foreign ambassadors diplomats do not have children of of foreign ambassadors and diplomats do not have Birthright citizenship that's correct and this came up earlier in some prior questioning about how lprs lawful permanent residents uh could somehow be included within the birthright citizenship clause and and I think the response to that is that Wong Kim Mark itself recognized that those individuals do have sufficient Allegiance but that's because they're here permanently with the consent
▶ 2:24:29of the United States okay and um you know you know an example of you know sort of the absurdity of all out Birthright citizenship El Chapo's wife Emma coronell uh traveled to California to give birth and then immediately return to Mexico under Biden's policy that children of a drug lord were then American citizens who had every right to American bank accounts and indeed they obtained American bank accounts
▶ 2:25:00um do do did El Chapo's children uh did they own full full full uh allegiance to the States they would not no their children would have been at least partially Allegent to their parents' home country and it so it is that and I think in your testimony it's very clear that this idea of full Allegiance is is is is is is is pivotal here it was the
▶ 2:25:30widely understood understanding of the jurisdiction Clause at the time it was yes okay and if if I may just briefly respond to the the claim that some of the arguments in this area are inherently racist in some way I'd point out in Wong kimark Justice John Harland the soul toenter from Place Ferguson the patron of interpreting the Constitution as colorblind he dissented in Wong kimar and said that Wong had never become a US citizen yeah and and
▶ 2:26:00and and and likewise if I recall it was what uh filer V do in which Justice Brennan in dictum in a footnote opined that um that that anyone born physically in the United States be a birth right citizen does does dictum have the same force of law as a holding in in a case it doesn't and also in that footnote
▶ 2:26:30Justice Brennan said that jurisdiction the phrase jurisdiction is bounded only if at all by principles of sovereignty and Allegiance exact same things we've already talked about which is what you're arguing today okay thank you gentleman yels all right I appreciate that uh I will now recognize myself for 5 minutes um and I would just ask uh Professor Frost we talked a little bit earlier
▶ 2:27:00about the extent to which we got the record is replete with examples of um tourism birth tourism in which there are uh you know Mal actors who are profiting by moving people in or transporting people in the United States to then deliver babies so we have Georgetown law report talking about women from foreign countries China and Russia paying tens of thousands of dollars to temporarily Rel relocate to the United States give birth and then often return we have that happening
▶ 2:27:31at the southern border with some regularity uh in macallen we have it in Laredo we have in El Paso throughout Texas I certainly can attest personally you believe that all of those children regardless of why they end up on American soil that those children uh are in fact US citizens under the law I'm so glad you asked that because there's actually a Federal Regulation 22
▶ 2:28:20cter you noted just a minute ago that in fact Justice Harland was the Lone descent in py correct that's correct yes but was also a denter in Wong right he joined chief justice and so a threshold question a threshold question here is with respect to Wong which is often cited as the basis now 130 years hence for these individuals being viewed as Citizens by by now in this instance the most pernicious models where people are
▶ 2:28:50profiting for bringing people into the United States to have babies exploit our laws go back to their countries or exploit our laws for citizenship that they are deemed citizens based on an interpretation of an opinion 130 years ago yes or no Mr mcot do you believe that Wong stands for that premise I do not and I cite support support for that in the brief you believe that it is limited to at most an LPR type status under today's law right here's
▶ 2:29:20a quote Wong by its facts and some of its language is limited to children born of parents who at the time of birth were in the United States lawfully and indeed were permanent residence that's from a professor NYU Mr Cooper do you share that view I do share that view and I would point out again that uh Wong itself conditioned its irresistible conclusion from the 14th Amendment it affirms the ancient and fundamental rule of citizenship by birth within the territory in the allegiance and under the protection
▶ 2:29:50of the country which was premised in that case on the parents of Wong being lawful permanent residents Allegient to this country so to be clear Mr Cooper you do not believe that uh that Wong's opinion extends certainly at a minimum Beyond again what we would characterize under today's law as an LPR status individual no it it it clearly
▶ 2:30:20just didn't have anything to do as Mr O'Brien has said with illegal aliens or aliens here who may be here lawfully but only temporarily and are you aware of any opinion by the United States Supreme Court that has extended beyond that interpretation since W no Mr mccotter do you agree with that I agree yes Mr O'Brien do you agree with that I do and so now having I think established that that
▶ 2:30:50is in fact the state of the law with respect to Wong and everything since Wong now my question is is W itself correct we have an opinion by Mr Justice Harland Justice Harland who is The Descent in plusy was plusy later overturned Mr Cooper yes yes Mr mot yes overturned Mr O'Brien yes Professor Frost plus he was overturned yes now we've got Wong
▶ 2:31:21is Wong itself correct on the law with respect to even lprs under the interpretation of the 14th Amendment I would ask Mr Cooper your opinion on that well uh I will tell you Mr chairman that uh I think there's significant support for the conclusion the holding in Wong in the debates under the citizenship Clause but one doesn't have to conclude that it is correct uh in in order to uh
▶ 2:31:51uphold this executive order because the executive order is entirely consistent with Wong Mr mcer you have anything to add to that Mr O'Brien and then I will be done with my time no sir Mr O'Brian anything to add 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 I appre appreciate gentlemen we we now have
▶ 2:32:22another member of the committee and I will recognize my colleague and my friend from Texas Mr Gil thank you Mr chairman 160 years ago Democrats were asking us if it weren't for slavery who would pick our cotton and today they're asking a similar question which is if it weren't for Mass migration who would pick our avocados it's a similar pattern that they've established can say say that the United States is not in fact
▶ 2:32:52better off by importing a massive class of what is virtually surf labor which undermines our cultural Fabric and our government as well I'd also like to point out that the admission that we need more and more unvetted illegal aliens pouring into our country is also an admission that the goal or one of the goals of our colleagues on the other side of the aisle is explicitly to reduce American wages because that's exactly what they're
▶ 2:33:22doing and what they're saying they're doing whenever they talk about bringing in cheap labor we're talking here about Birthright citizenship and which has provided an enormous loophole in our immigration system and has facilitated the mass importation of illegal aliens through this current loophole upwards of 300,000 people a year are granted automatic citizenship in the United States despite having being born
▶ 2:33:52to parents who have no ties to our country and who are here illegally and also due to failures in our legal immigration system these individuals then use their citizenship to sponsor their illegal alien parents and other family members for a green card which creates a NeverEnding 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
▶ 2:34:22foreign born population is quickly approaching 15% which is the highest it's been since at least 1910 Mr O'Brien i' I'd like to start with with you with with a couple questions if you don't mind um under the 14th Amendment Native Americans due to tribal allegiances were not granted citizenship is that correct that's correct got it and the and the children of foreign diplomats were also expressly excluded from Birthright citizenship
▶ 2:34:53that's correct got it from from the available evidence 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 presence in our country yes I think they made that very clear in the debates got it and and in your opinion based off this difference would the authors of the 14th Amendment conclude that an individual whose parents did not owe total allegiance to the United States
▶ 2:35:23be granted Birthright citizenship no I think the import of the the holding in Juan Kim Arc was that only individuals who were lawfully present in the United States could transmit citizenship to their children born or I should say only the children born of people who are lawfully president the United States could acquire citizenship at Birth and despite all this some of my colleagues here still contend that essentially any person born here regardless of their legal status or
▶ 2:35:53the legal status of their parents uh have a constitutional right to become a United States citizen have you seen any evidence to suggest that the authors of the 14th Amendment would support that view no and I don't think the authors of the opinion in Juan kimar would have supported it either got it thank you very much Mr chairman I yield my time back to you well I thank my colleague from Texas now recognize the Gent lady from Pennsylvania for a unanimous consent request uh yes I seek
▶ 2:36:24unanimous consent to introduce Barbara Jordan's obituary in the New York Times from January 18th 19 uh 96 in which it notes that she spoke out against a proposal to deny automatic citizenship to the children of illegal immigrants saying I quote to deny Birthright citizenship would derail this engine of American Liberty without objection and I would ask consent to insert into the record uh the uh Amicus brief that was submitted by a number of of
▶ 2:36:54house colleagues it was drafted by Mr mot would also like to introduce into the record a um uh uh note that was written by Amy uh swear uh from the Heritage Foundation who has written extensively on this on this issue and uh also a oped in um that was written by Mr Cooper along with Pete uh Patterson uh on this subject as well without objection I'll insert that in the record that concludes today's hearing
▶ 2:37:24we thank the witnesses for appearing before the subcommittee today without objection all members will have five legislative days to submit additional written questions for the witnesses or additional materials for the record without objection the hearing
▶ 2:40:48e e