▶ 0:16:54>> I'm calling this hearing of the senate judiciary subcommittee to order. Thank you for being here. Today's topic is protecting american citizenship, birthright citizenship for illegal aliens and tourists. This is a pressing topic and we will hear arguments into the case next month regarding president trump's executive order eliminating birthright citizenship for children of illegal aliens and temporarily present aliens.
▶ 0:17:20For years, the american people have been told the constitution requires a united states to grant citizenship to almost anyone born here. Without any regard for such key questions like whether or not the parents were in the country legally in the first place. That claim has shaped our immigration system and our politics for decades. It is also reshaped out many people think what it is to be an american. If you read the constitution, examine the ratification debates and research the common law, that claim is far from obvious.
▶ 0:17:51This debate is not just about immigration policy, it is about the meaning of american citizenship. Citizenship is not just paperwork issued by the government. It is not a bureaucratic label. Citizenship is the essential bond between a nation and its people. In a republic like ours, that bond carries enormous weight. In the united states, sovereignty doesn't belong to a king or a ruling class. It belongs to the american people themselves.
▶ 0:18:22Citizenship defines legal recognition of who the american people are. Citizenship defines the political community that governs the united states. Who exercises the sovereignty, the sovereign authority of this republic. For most of our history, americans understood citizenship in straightforward terms. It reflected allegiance to the united states, loyalty to this country, attachment to its institutions, and belonging to the american nation.
▶ 0:18:48Over the past several decades, the understanding has been pushed aside. Lawyers, activists, and policymakers in washington have advanced the idea citizenship has little to do with allegiance or membership in the national community. Under that interpretation, citizenship is devoid of connection to the american people.
▶ 0:19:08Instead, regardless, if your parents or tourists, foreign students, legally in the country, if you are born here, you are a citizen and equal standing with the american people. Even though connection to the national community. This is a dramatic departure of how most nations understand citizenship. It has produced predictable results. Foreign nationals travel the united states for the purpose of securing citizenship for their children.
▶ 0:19:38An entire birth tourism industry has emerged around that goal. Illegal immigration is fueled by the belief a child here -- a child born here will receive automatic citizenship. In one of the most serious institutions of the american republic is increasingly treated like a loophole in the image -- immigration system. Citizenship should never be a loophole. Citizenship should not mean belonging.
▶ 0:20:05Every series nation recognizes citizenship recognizes allegiance, loyalty to the country and its laws. Nations also recognize something else, they have the sovereign right to their own political community. A nation that cannot determine who belongs to its political community begins to lose control of its own sovereignty. A nation that can't define who belongs to it has lost control of its sovereignty. The constitution addresses this issue directly.
▶ 0:20:36The 14th amendment provides all persons born or naturalized in the united states and subject to the jurisdiction thereof are citizens of the united states. Those words matter. Subject to the jurisdiction thereof. That phrase reflects allegiance, reflects political authority, reflects belonging to the united states. The citizenship clause was written in the aftermath of the civil war to correct one of the greatest injustices of american history.
▶ 0:21:04It guaranteed citizenship to freed slaves and their children, who on full allegiance to this country, but had been denied their rightful place in the republic. The citizenship clause was written to correct a grave injustice. It was not written to create an incentive to prop up our tourism industry or incentivize illegally crossing our borders. Yet today, that is effectively how it is treated.
▶ 0:21:28As part of today's hearing, we will hear from peter scweizer, who has raised another concern tied to birthright citizenship. His new book which was a new york times bestseller, he investigated a rising manchurian destination of chinese nationals with the ccp thais who have exploited the united states automatic citizenship rules. China has sent individuals to give birth in america, securing U.S.
▶ 0:21:56Citizenship for up to 1.5 million chinese nationals who will spend their entire lives in china. But can vote in our elections, attend our schools, and receive our government benefits. President trump's executive order has forced the country to confront this issue directly. It raises a basic question. Does the constitution to require the united states to grant citizenship automatically to the children of illegal aliens or temporary visitors?
▶ 0:22:27That question is before the supreme court. Congress has a responsibility to examine the constitutional text. The historical record. And the consequence of the policies we have today. That is why we are having this hearing and why this hearing matters. The timing of this discussion could not be more appropriate. This year, the U.S. marks is 250th year, 250 years ago, the founders created a constitutional republic built on the idea of self-governing people. Citizenship was the legal expression of that idea.
▶ 0:22:59It defined the community that governs the country, it defined the american people. For 2.5 centuries, the american republic has endured through war, crisis, an enormous change. Institutions like citizenship do not and/or by accident. Nations do not indoor by accident. The indoor because each generation chooses to defend the institutions it inherited. Anniversaries like this one are not only moments to celebrate our history, they are also moments to have serious questions about our future. Who are we as a people?
▶ 0:23:30What does it mean to be un-american? What institutions must meet -- we protect that the american experiment will indoor for another century beyond? Few institutions are more central to these questions then citizenship itself. Citizenship is the legal expression of the american people are, it carries a responsibility of freedom from one generation to the next. If citizenship becomes detached from belonging, the institution itself begins to weaken.
▶ 0:23:58If citizenship loses his meaning, the foundations of the republic begin to weaken from within. The question before us today is simple. His american citizenship, inheritance of a nation and its people, or his american citizenship simply a hollow legal definition without protections against fraud, abuse, and bad actors? Protecting the meaning of american citizenship is not just a matter of immigration policy, it is a matter of preserving the american republic, the american people.
▶ 0:24:28I look forward to hearing from our witnesses. Before we do that, I want to recognize a ranking member, senator peter welch. >> thank you very much. Thank you for calling this hearing. It is at a time where immigration, immigration policy is fraud, and conflicted. I want to thank our witnesses for being here. Our nation was built on immigrants. Our nation was also built on slave labor.
▶ 0:24:59And our nation had this dred scott decision, which literally said african-americans were not citizens, not entitled to be citizens. What that wrong was finally righted when that dred scott decision was overturned by the constitutional amendment that did establish the right of citizenship by birth. Mr. chairman.
▶ 0:25:28You say -- and I think this is a fair question, does citizenship be conferred just by birth legally? Most scholars say it is, I believe it is. But a real citizenship is embracing the responsibilities, every single one of us has two live up and promote the ideals that every person is created equal and has an opportunity to be their best self and contribute to the betterment of our country.
▶ 0:25:58This argument about what is legal and what isn't, I believe it is clear that the law says if you are born here you are a citizen here. That is just the beginning. It is up to each and every one of us to accept the responsibility we have two create a more perfect union. We are in a front time. What we are seeing is a rampage by ice in the name of so-called protecting our citizens.
▶ 0:26:27We've had a debate in this country about open borders, and Mr. chairman, there has been success in closing the border, a country does have the right to define what its borders are. We have a debate about deporting criminals. They should be deported. We are seeing a reckless rampage of mass deportations.
▶ 0:26:49And where people who have been here and are working hard in this economy, creating jobs, serving in the military, those people are being picked up by masked agents.
▶ 0:27:09We saw how extreme it is in minneapolis, where a 37-year-old nurse, a 37-year-old mom of three, were both shot down without any justification. And this is in the name of so-called enforcement of citizenship. The constitutional rights we are talking about at this hearing, they are being violated. They are being violated.
▶ 0:27:35What this hearing has to be about is ensuring that we protect the constitutional rights of people who are entitled to them in this country. One of our witnesses, alejandro barranco, a marine. His brother, a marine. His father, a landscaper, was arrested with guns drawn. No criminal record.
▶ 0:28:04And he has not been deported, but that was because he had a status that was being challenged. He was picked up in that way. That is wrong. What we're talking about is not just about the legal definition of citizenship.
▶ 0:28:19Because it is on us to have enforcement mechanisms at work, a judicial system that works, but in the name of cleaning out everybody who has a questionable status, and you end up 86% of the people who are arrested have no crime at all associated with them. When this man, and their father is picked up. That is of concern to me and the american people.
▶ 0:28:50The enforcement actions of ice have been on a rampage, they are trampling on the rights of the people of this country, it is time for us to protect constitutional rights, not violate them. On the question of birthright citizenship, that is illegal.
▶ 0:29:05So there is a lot of room here for people concerned about the border and concerned about the future of our country, and concerned about the responsibility that anybody has who is here to contribute to creating a more perfect union. There is opportunity for us to work together.
▶ 0:29:29But I will not submit that an executive order by a president can overturn a supreme court decision. I yield back.
▶ 0:29:38Chair Schmitt: Thank you. I want to turn the floor over to senator durbin. >> as members of congress, we take an oath to support and defend the constitution, so does the president. To quote the former chairman of joint chiefs of staff, general mark milley, "we don't take an oath to a king or a queen or a tyrant, a dictator, we don't take an oath to a want to be dictator.
▶ 0:30:06Chair Schmitt: We take an aoth to the constitution. To an america that is an idea. We talk about the effort of the president to undermine the constitution and overturn black letter constitutional law and statute by royal fiat.
▶ 0:30:23Chair Schmitt: Section one of the 14th amendment of the united states reads "all persons born or naturalized in the united states and subject to the jurisdiction thereof are citizens of the united states." in 18 idea, the supreme court withheld the citizen clause of the 14th amendment guarantees citizenship to the children of foreigners present on U.S. soil. Even if their parents are not eligible to become U.S. citizens.
▶ 0:30:53Chair Schmitt: In 1952, congress enshrined this holding into law. Birthright citizenship is the law of the land. But president trump believes he can issue an executive order and attempt to end birthright citizenship guaranteed by our constitution. Every court who has considered this order on its merits has soundly rejected it.
▶ 0:31:15Chair Schmitt: District court judge john kuhn are, who was appointed by president reagan, called it "blatantly unconstitutional." president trump's illegal birthright citizenship order is not just an attack on the constitution, it is an attack on millions of immigrants who have contributed in countless ways to our culture and our economy. But this just isn't about notable birthright citizens.
▶ 0:31:40Chair Schmitt: The executive order would create a permanent underclass of american-born children who would contribute to our nation and yet be denied the opportunity of citizenship. As general milley said, our oath is to the constitution, an idea of america. An america that rejects a caste system and welcomes the contributions of immigrant families. One week ago, secretary kristi noem walked in and sat down at this table -- this table.
▶ 0:32:10Chair Schmitt: By 48 hours passing, she was removed as secretary of the department of homeland security. What is at stake is the national conversation about immigrants. Do we fear them? Do we hate them? Do we embrace them as part of america? I hope it is the latter. My mother was an immigrant to this country, my brothers were beat -- born before she became day naturalized citizen. They served our country in the united states navy, they have now passed away.
▶ 0:32:38Chair Schmitt: Is there any question they were really american citizens? Not in my mind. Not in the minds of so many others. We don't have a requirement of allegiance as part of the constitution, but how are we going to make that judgment if that is what the gentleman has suggested? It is important we come to our senses when it comes to the role of immigrants in the future of america. If those have broken the law or a dangerous to our country, they should go. If they are making an honest contribution, they should not be rounded up in a mass deportation.
▶ 0:33:09Chair Schmitt: So far, six out of the seven of those who have been deported or arrested by ice in this country without any criminal record of any consequence. Six out of seven. It was supposed to be the worse of the worse. They are rounding up american citizens, endangering them. Mr. barranco. Thank you for being here for telling your story. I'm aware of it and thank you for serving the marine corps.
▶ 0:33:35Chair Schmitt: Let us end this fear and hate of immigrants. Let's deal with it the honest, american way.
▶ 0:33:43Chair Schmitt: I will now introduce the majority witnesses. At first up, Mr. charles cooper. The founding chairman of cooper and kirk, based in washington, D.C., he previously served as general for the office of legal counsel during the reagan administration. After graduating from the university of alabama, he clerked for judge paul maroney of the U.S. court of appeals of the fifth circuit and justice william h winquist of the supreme court.
▶ 0:34:12Chair Schmitt: Over the course of his career, he's argued numerous cases before the supreme court, nine times before. Each of the 13 federal court of appeal and several state supreme court's as well. Mr. cooper has appeared before congressional committees on 24 occasions, testifying as an expert on a wide variety of legal issues. Thank you for being here. Mr. wurman is a julius davis professor of law at the university law school where he teaches administrative law.
▶ 0:34:40Chair Schmitt: His scholarship focuses on the 14th amendment, separation of powers, administrative law, and constitutional interpretation. Professor wurman is the author of several books on constitutional theory, the historical meaning of the reconstruction amendments, and he recently published a law review article on the scope of the citizenship clause and the common-law scope of birthright citizenship. His new book, the constitution of 1789, a new introduction, is forthcoming in june of 2026.
▶ 0:35:13Chair Schmitt: And Mr. peter schweizer, the president of the government accountability institute, author, -- the institute focus on corruption in government accountability. He's the author of five street number one new york times bestsellers, including his most recent book, "the invisible coup," how america leads and uses foreign powers of the weapon. He's been featured on the front page of the new york times, wall street journal, and washington post, and two segments on 60.
▶ 0:35:45Chair Schmitt: His work has expired fbi and congressional investigations. His book, throw them all out, which expose insider trading on the stock market by members of congress, is credited with leading to the passage of the stock act. He received his ba from george washington university and his masters from oxford. Mr. welch, you want to introduce the minority witnesses?
▶ 0:36:10Chair Schmitt: >> frost, welcome, the david lerch lerurton massee professor of law -- and immigration migration in human rights program from 2022. She has many academic awards in publications. And before she entered academia, frost clerked for judge raymond randolph and U.S. court of appeals for the deet -- D.C.
▶ 0:36:35Chair Schmitt: Circus, worked as a staff attorney and public citizen, and a legislative fellow for the senate judiciary committee. Right here in this room. Then chaired by senator ted kennedy. She has a ba from harvard and jd from harvard law school. Welcome. And alejandro barranco. Did I pronounce your name right? A marine. Two brothers who were marines.
▶ 0:37:00Chair Schmitt: You are out of the marines, honorable discharge after service, including in afghanistan, as I understand it? You were there at that chaotic end. Your dad raised you and your brothers, your mom. Three brothers all became marines. You are back and you are working yourself as a landscaper, as I understand it?
▶ 0:37:27Chair Schmitt: You work during the week and are starting to learn to get certified about this? Your dad was and he was arrested when he was on his second landscaping job saturday at and I have? I understand he did those things. We look forward to hearing what the shock was to you when you got the news that your father had been arrested. And thank you so much for your service to the country and for being here and sharing your story. . Mr. chairman.
▶ 0:37:57Chair Schmitt: It is the tradition of this committee to swear before the witnesses to testify before court praise or raise your right hand. Do you swear that the testimony you are about to give to this committee is the truth, the whole truth, and nothing but the truth, so help you god? >> I do.
▶ 0:38:16Chair Schmitt: We will recognize Mr. cooper first.
▶ 0:38:17Mr. Cooper: Thank you very much chairman, ranking member welch, the scope of the citizenship clause depends on the original meaning of the phrase "subject to the jurisdiction thereof," as the chairman has mentioned. Because the term jurisdiction is ambiguous, one must look to the history of its use in the clause, to help determine its original meaning.
▶ 0:38:41Mr. Cooper: And further, because the central purpose of the citizenship clause was to constitutionalize the citizenship provision of the civil rights act of 1866, the search must begin with the text in history of that act.
▶ 0:38:57Mr. Cooper: The civil rights act granted citizenship at birth to persons "born in the united states and not subject to any foreign power." the act on its face and thus excludes from birthright citizenship american-born children of temporary foreign visitors and illegal aliens. Because the child's foreign parents, and thus the child, are by definition subject to a foreign power.
▶ 0:39:22Mr. Cooper: Any possible doubt about this is removed by the act's congressional history. The citizenship provision was introduced by senator lyman trumbull, who explained it would make citizens of everybody born in the united states who owe allegiance to the united states.
▶ 0:39:39Mr. Cooper: And it would exclude from citizenship the children of "persons temporarily resident in the united states whom we would have no right to make citizens." a senate debates focus mainly on the citizenship of american indians. And there was general lumber -- agreement among the senators that indians who belonged to the indian tribes should be excluded from birthright citizenship under the act because they owed allegiance to the tribe, a quasi-foreign nation, they said.
▶ 0:40:10Mr. Cooper: And the indians were not regarded as part of our people, as part of our population." trumbull made clear that the x disqualifications in the birthright citizenship applies not only to tribal indians, but to everyone. As he explained, if a black man or a white man belonged to a foreign government, he would not be a citizen.
▶ 0:40:36Mr. Cooper: Senator johnson likewise added all black persons born in the united states who were not subject to any foreign power would become citizens by virtue of birth. What was not said in the debate is equally revealing. No one argued that foreign citizens temporarily visiting the united states are regarded as part of our people rather than part of the people of a foreign power.
▶ 0:41:03Mr. Cooper: No one suggested that a child born to such foreigners while visiting here should be entitled to citizenship at birth, and no one even mentioned the english common law doctrine. Just two months after passage of the civil rights act, the 14th amendment was taken up by the same 39th congress. Senator jacob howard moved to at the citizenship clause. The language he proposed different from that of the civil rights act.
▶ 0:41:29Mr. Cooper: The phrase not subject to any foreign power was replaced by the phrase subject to the jurisdiction thereof. But the change in language was clearly not intended to abruptly change the meaning. And thereby to invalidate the civil rights act's express disqualification of children of foreigners owing allegiance to a foreign power.
▶ 0:41:52Mr. Cooper: As senators howard and senator trumbull emphasize, the new language simply -- is simply declaratory of the law already, the civil rights act. And the object to be arrived at is the same. Instead, the language was changed to address concerns once again relating to the american indians. As trumbull stated emphatically, the new language means subject to the complete jurisdiction of the united states.
▶ 0:42:22Mr. Cooper: What do we mean by subject to the jurisdiction of the united states? Not owing allegiance to anybody else. And it cannot be said of any indian who owes allegiance to some tribal government that he's is subject to the jurisdiction of the united states. So a dissenting opinion in wong kim park was right.
▶ 0:42:49Mr. Cooper: As the dissenting justices said, the civil rights act was passed, and the 14th amendment proposed by the same congress. And it is not open to reasonable doubt that the words subject to the jurisdiction thereof in the 14th amendment were used as synonymous -- synonymous with the words and not subject to any foreign power of the civil rights act. The bottom line, Mr.
▶ 0:43:14Mr. Cooper: Chairman, members of the committee, american-born children of foreign visitors and illegal aliens are not subject to the jurisdiction of the united states and are therefore not entitled to birthright citizenship, thank you.
▶ 0:43:27Chair Schmitt: Professor frost. >> chairman schmitt, ranking member welch, and distinguished members of the subcommittee. Thank you for the opportunity to discuss the meaning and significance of the 14th amendment citizenship clause. Some provisions of the U.S. constitution are vague or ambiguous, but the citizenship clause is not one of them.
▶ 0:43:50Chair Schmitt: The text, the legislative history, and the original public understanding all confirm the citizenship clause applies to everyone born in the united states with narrow exceptions. The only relevant one being for the children of diplomats.
▶ 0:44:04Chair Schmitt: By the way, they did say this in the legislative history, we have a senator, saying that the citizenship clause applied to children of "all parentage whatever." they also, we all agree, especially distinguished children of diplomats that have been no need to carve out that group if anyone who was the child of a visiting immigrant would not be a citizen.
▶ 0:44:29Chair Schmitt: Because of that, the supreme court precedent stretching back 120 years has affirmed what everyone understood at the time, the citizenship clause applies to everyone with those in their exceptions. The only relevant one being children of diplomats. The supreme court held that and has repeatedly held that and restated that. In a case in 1957, 19 66, 19 85, again and again it confirms what we already know.
▶ 0:44:56Chair Schmitt: Every court to address president trump's executive order has rejected it, including judges appointed by republican -- nominated by republican presidents, such as john who now are, who was nominated by reagan, and regarded it to be blatantly unconstitutional. I'm not going to spend anymore more time today discussing the legality of the executive order, it is clearly unconstitutional and illegal. I'm going to talk about the consequences of the executive order if it were to go into effect.
▶ 0:45:25Chair Schmitt: It would immediately take away citizenship for 250,000 children born every year who would be born, some stateless, potentially deported from the country day one of their lives with no access to the rights and privileges of citizenship. And a recent pew research poll asked americans whether they wanted children of immigrants, temporary immigrants or any immigrants, lawfully in the U.S. to be citizens, 94% said yes.
▶ 0:45:51Chair Schmitt: I think there's hardly anything else the country agrees on as much as the fact this executive order is unconstitutional. In addition, it would require every child born in the united states, 3.5 million children a year, to be born perceptively noncitizens. They would all be born with their parents are required to prove the parents, citizenship, and ancestry, perhaps going back for generations, in order for the child to be established as a citizen.
▶ 0:46:21Chair Schmitt: Putting those paperwork burdens on families in a vulnerable moment, on hospital officials, on state officials, and are already overburdened immigration officials. What is the problem? Why would we need this executive order that americans say they don't like and has been struck down by every court as unconstitutional and illegal?
▶ 0:46:41Chair Schmitt: The problem I'm guessing we will address is this problem, which I will put in quotes, "birth tourism." a couple of things about birth tourism, according to Mr. schweizer's book, no one knows how many people are birth tourists. The senator has estimated it would be less than 1% of children born in the united states. So it doesn't seem like this is a huge problem.
▶ 0:47:10Chair Schmitt: But if it is, there is an easy fix, which is there is a law on the books, 21 cfr 41.31, which makes it illegal to enter the U.S. on a tourist visa for the purpose of giving birth and empowers immigration officials to deny a visibly pregnant woman entry into the U.S. if they believe she will give birth during her visit.
▶ 0:47:31Chair Schmitt: So as this suggests, if we have a problem with birth tourist a problem with birth tourism, I don't think we do, but the solution is to enforce the law on the books and not to deprive american families of citizenship of their children born on U.S. soil or force them to prove their lineage or lose their citizenship.
▶ 0:47:51Chair Schmitt: Professor wurman. >> thank you. It is often believed the common law to birthright citizenship was we are birthed on the sovereign soil with sufficient to confer such a subject ship or citizenship. That is incorrect. Although that statement is an approximation of the rule, usually getting the correct result, the precise role common law was birthed on the sovereign soil was to parents under the sovereign protection.
▶ 0:48:19Chair Schmitt: That is how -- in the leading come in the decision from 1608. Aliens from friendly countries with permission to be in the room, I will get to that point, where under the temporary protection and odor and allegiance. They were in the realm of natural subjects of the king. That is why their children born in the realm were understood to be natural born subjects.
▶ 0:48:39Chair Schmitt: In contrast, the children born of innovating soldiers were not birthright subjects, although born upon the kings soil, because they were not born under the libyans or connection of a subject, nor under the protection of the king. As a natural board subject is one to another subject, a subject under the protection of the king. Invaders did not count, but aliens generally were subjects of the king if they were under his protection and gave him an exchange of allegiance.
▶ 0:49:06Chair Schmitt: William blackstone in his influential commentaries described the rule of respecting foreign ambassadors similarly. Their children are not natural born subjects because they were born under the protection and within the allegiance of another sovereign represented by the father of the ambassador. To summarize the rule, supreme court justice joseph story. "nothing is better saturday -- settled in the common law than the doctrine of children -- while their parents are under the protection of the government and owing a temporary allegiance there to our subjects by birth.
▶ 0:49:35Chair Schmitt: The status of the parents did matter. And the relevant status was whether they were under the protection of the sovereignty. What is more, in the relevant periods of english history, it appears that an alien could come under the sovereign protection for one of two ways, a grant of a royal safe conduct, or through statutory permission to enter. Safe conducts were formal legal documents granting permission to enter. And specifically extending protection.
▶ 0:50:02Chair Schmitt: The examples of these safe conducts using the language of protection are allegiant. For peace and purpose, here's william blackstone's summary. "during the continuance of any safe conduct, even express or implied, the foreigner is under the protection of the king and the law." eventually, safe conducts were replaced by statutes. Magna carta guaranteed aliens safe and secure conduct to engage in trade unless they have been previously and publicly forbidden.
▶ 0:50:28Chair Schmitt: A 1553 statute provided merchant strangers be safely and truly under our protection and a safe conduct come and dwell in our said realm. Even subjects of warring nations could be under the sovereign's protections, so long as they had the permission to remain.
▶ 0:50:43Chair Schmitt: And an american case arising out of the war of 1812, chancellor kent explained the rule as follows "a lawful residence provides protection and a capacity to sue and be sued." it appears from the historical record unlawfully present aliens would not be considered or may not have been considered under protection of the sovereign and their children may not have considered birthright subject or citizens. The case from the war of 1812 also illustrates another important proposition. The connection between protection and jurisdiction.
▶ 0:51:15Chair Schmitt: Not only does a lawful residence in pie protection, it also therefore implies a capacity to sue and be sued. An alien caught at the border may be subject to criminal jurisdiction. But does it follow that the alien must be allowed to sue and be sued in U.S. courts and to enter into contracts? In other words, such aliens may not have been subject to the complete jurisdiction in the sense of the amendment as Mr. cooper suggested. The case of temporary visitors with more complicated in common law.
▶ 0:51:44Chair Schmitt: The parents of a lawfully present where under the tempered protection of the sovereignty. That is why one judge in a famous case held a child born of temporary sojourners was a citizen. But the role was contested because of the increased international travel and resulting dual allegiances. Joseph story suggested an exception for temporary visitors would be a reasonable qualification to the rule. Henry st. George tucker stated visitors felt outside of the rule. An appellate decision from 1860 suggested similarly.
▶ 0:52:13Chair Schmitt: Most significantly, the military authorities in the department of the gulf had to decide whether during the civil war they could conscript into the union army children born in louisiana to french parents. A provost judge and the commanding general concluded such children, though born on U.S. soil, were liable to the duties of american citizenship such as conscription if their parents had been domicile at the time of their birth. The louisiana example suggests ways in which temporary visitors may not be subject to the complete jurisdiction of the united states.
▶ 0:52:41Chair Schmitt: Would it be lawful under the law of nations or international law to conscript them or their children? The union military authorities appear to have thought not. This in other ways, temporary visitors may not be fully subject to the jurisdiction of the united states in the sense of the amendment. I look forward to your questions.
▶ 0:52:58Chair Schmitt: Thank you. Mr. barranco.
▶ 0:53:02Mr. Barranco: Chairman, ranking member, members of the subcommittee. Thank you for the opportunity to be here today. I am a united states citizen, I'm a marine. I am an american because I was born here. I want to be clear at the start that may be used today are my own. While my perspective is shaped by my service in the marine corps, I am only speaking for myself. I was raised to love this country. That was something my parents taught me from a very young age.
▶ 0:53:31Mr. Barranco: I was taught to respect the flag and be thankful for the opportunities this country gave me, and to give back whatever I could. I grew up proud to be an american. I still am. That's upbringing is why I chose to join the marines. I wanted to do something bigger than myself, I wanted to serve my country, set an example for my younger brothers, and make my parents proud. The marine corps gave me that opportunity.
▶ 0:53:55Mr. Barranco: I loved serving my country alongside marines from every background you can imagine, different races, religions, family histories. What we shared wasn't allegiance to this country. We raised our right hands, or the same uniform, followed the same orders. We were judged by our actions and our commitment, not by where our parents were born. That is what patriotism looks like to me. I am able to stand here today because I'm a citizen by birth. Because I was born here, and I was able to go to school.
▶ 0:54:25Mr. Barranco: I was able to graduate high school, the first and my family to do so. I was able to go to college. Enlist in the marine corps and serve my country. Without my citizenship, none of that would have been possible. I would not have lived a normal american life. I would not have warned this nation's uniform, I would not be who I am today. I also want to speak about my family, because I do not believe citizenship is just a legal status on paper.
▶ 0:54:53Mr. Barranco: I'm a patriotic american with mexican roots. Those things are not in conflict. I want to explain why I believe my identity as a U.S. citizen is strengthened, not weakened, but my family's mexican heritage. My father is a hard-working man, he worked since the 1990's to support our family. He always told us to be good people and to give back to this country. He raised three sons who chose to serve as marines. He's proud of that. We are proud of him. Last year, my father was arrested and detained by ice.
▶ 0:55:24Mr. Barranco: During that arrest, he was violently beaten. He was treated in a way no human being deserves. That experience has left lasting physical and emotional harm. He cannot work the way he used. He does not feel safe leaving his home. Our family still lives with that trauma. I share this not to assign blame, but to explain what these policies look like in real life. They affect families who have built their lives here, they affect american citizens like me.
▶ 0:55:55Mr. Barranco: When we talk about birthright citizenship, we are not talking about a loophole or a theory, we are talking about clear constitution to guarantee that has been part of this country for more than a century. I believe birthright citizenship reflects a core american principle people had to fight over time. That belonging is defined by presence, contribution, and shared civic life, not ancestry or wealth.
▶ 0:56:19Mr. Barranco: The 14th amendment drew a clear line against systems that limit the american lineage -- the limit being american to lineage, ancestry, or wealth. This is not about politics, it is about certainty, knowing who belongs. It is about making sure children born in this country are treated equally, no matter what state they were born in or what their parents status may be. I cannot imagine a system where my citizenship would have depended on geography or timing.
▶ 0:56:49Mr. Barranco: Where I might have been a citizen in one state but not another. That kind of uncertainty would have changed my life forever. I stand here as proof of what birthright citizenship makes possible. I was born here, I grew up here, I served here, I love this country, and I have shown that through my actions. I ask this committee to remember behind this debate are real people and real families. People like me who have pledged allegiance not just with words, but with service and sacrifice.
▶ 0:57:19Mr. Barranco: Thank you for listening to my story. I'm proud to be an american and I appreciate the chance to be here.
▶ 0:57:25Chair Schmitt: Thank you for your service. Mr. schweizer.
▶ 0:57:29Mr. Schweizer: Mr. chairman, ranking member britt, distinguished member -- ranking members, thank you for allow me to testify on the concerns about our sovereignty. That is the expectation of america's birthright citizenship policy through birth tourism and related practices, particularly by nationals of the people's republic in china.
▶ 0:57:51Mr. Schweizer: Birth tourism is essentially an industry that provides concierge service in every step of the way for a foreign national, in this case, china, to pay the firm. Roughly $100,000. They will transport them to the U.S., arrange medical care, arrange for citizenship for the child. As soon as the child is old enough to travel, they will return back to china. The scope of this is industrial.
▶ 0:58:17Mr. Schweizer: In china alone, we have identified more than 1000 birth tourism companies that are almost exclusively focused on the united states. Our federal government does not track this information because there is no centralized collection of information on the nationality of parents who are giving birth. China, however has done estimates themselves. The numbers are eye-popping.
▶ 0:58:40Mr. Schweizer: The chinese government gave an estimate a few years ago, on average 50,000 chinese citizens a year were giving birth in the united states or at U.S. territories like saipan. Others like professor barr bonus from australia who believes that number is higher. He's estimated 100,000. There is a research firm in china that estimated in 2018 alone, 180,000 managed to give birth in the united states.
▶ 0:59:09Mr. Schweizer: No one knows what the actual number is, that is the challenge we face today. If you do the math, the ramping up of this activity over the last 13 years, and you take the ballpark estimates, you are looking at roughly one million "U.S. citizens," who are being raised in the people's republic of china today. If you look at the websites of these birth tourism companies, they will tell you who is hiring them. These are not political dissidents.
▶ 0:59:40Mr. Schweizer: These are military officers, people from the ministry of propaganda, people that are high-ranking officials in the chinese communist party. In other words, these are part of the ccp the establishment. We have the added challenge of surrogacy, that is also being exploited by china on a massive scale. Here we have no numbers and we don't even have estimates. But the surrogacy works very simply in this fashion.
▶ 1:00:07Mr. Schweizer: A chinese couple, or it could be a chinese man, decides they want to give birth, they want to hire a woman in the U.S., pay her at roughly $60,000, and she will carry the child. Either a child that comes from this berm of the father, or it can be both the sperm and the e ggs. We have an eye-popping number of examples that have come to our attention that explain the scale of this activity.
▶ 1:00:35Mr. Schweizer: First, there was a ccp official in california in may of last year that was found by california child services. He had 26 children through surrogacy in the state of california. All of those children would become U.S. citizens. The wall street journal about eight weeks ago had a front-page story about a chinese billionaire who is also close to the ccp who has more than 100 children done through surrogacy in the united states.
▶ 1:01:04Mr. Schweizer: In the research we did -- looking at surrogacy companies operating just in southern california, which is where this is very active, we identified 107 chinese owned surrogacy companies operating just in that area. China does not officially recognize dual citizenship, but they allow de facto dual citizenship to operate.
▶ 1:01:30Mr. Schweizer: And the fact of the matter is these services, whether for surrogacy or birthright tourism, they operate openly in china, they are not regulated, they are not shut down, and they advertise openly. Why? I can only speculate they are doing this for their advantage and not for ours. The challenge we face is how do we deal with this issue? I'm not a legal scholar, I will not have much to contribute on the debate.
▶ 1:02:00Mr. Schweizer: But the challenge is the rules and regulations are subject to manipulation. Yes, people with customs and border control can deny entry to somebody who is pregnant and say they want to come to the U.S. on a tourism visa. The problem is under certain administrations, the obama administration, the biden administration, they were told not to do that.
▶ 1:02:23Mr. Schweizer: That was the testimony before this homeland security of the senate back in 2016, that customs and border patrol officials were told not to exclude people from coming to the united states in terms of birth tourism. This is a serious national security issue, we need to close loopholes and recognize the magnitude of this problem. Thank you.
▶ 1:02:42Chair Schmitt: Thank you. Mr. schweizer, I will begin with you. I think for a lot of people this is new information. Weather at this hearing or with your book that came out recently. You discussed the growing use of birthright citizenship among chinese elites. Do you believe the ccp itself, the apparatus is encouraging this, and why would they be?
▶ 1:03:08Mr. Schweizer: Again, we can only look at what their actions are. We have run articles and the people daily explaining that you have a constitutional right in the united states, a certain irony ccp officials are explaining, constitutional rights to their own elite. They in fact are. They -- there are nationalist websites that talk about rent a womb.
▶ 1:03:36Mr. Schweizer: There is discussion in the chinese media, no condemnation. There doesn't seem to be any perceived threat I was able to see, but they encourage it. The question as to why, we know this was happening in hong kong.
▶ 1:03:52Mr. Schweizer: In 2013, the government of hong kong at that time shut off the practice because there were so many chinese babies being born in hong kong and the chinese government said it was an effort at subversion by the ccp, and I think that is probably an accurate rendering of the motivation behind this.
▶ 1:04:10Chair Schmitt: You did not mention in your opening statement but I want to allow you to talk about what the mexican government is doing and some of the nefarious activities.
▶ 1:04:22Mr. Schweizer: Mexico is interesting because we have a certain view of the country different than theirs. I can read a couple of quotes. These are from senior mexican officials. The first from a mexican senator, member of the ruling party. He sits on the senate national defense committee, probably the most powerful committee in a mexican government. He said "mexicans are in our territory.
▶ 1:04:47Mr. Schweizer: California, nevada, texas, utah, new mexico, oklahoma, colorado, wyoming. We are going to take back the territory that was stolen from us." sounds crazy, you can find dozens of quotes for senior officials, they view mass migration as a tool by which they can advance sovereignty in the united states.
▶ 1:05:09Mr. Schweizer: People were surprised to learn the mexican government actually has elected senators and members of their chambers who served in their government but actually live in the united states and their job is to represent mexican americans living in the united states for the mexican government. I would certainly see that as a challenge to our sovereignty. >> I would say so. Mr. cooper, I want to turn to you.
▶ 1:05:34Mr. Schweizer: In your brief, you explained the text of the 14th amendment suggested more than birth is needed for birthright citizenship. Those born in the U.S. subject to the jurisdiction thereof -- this is the crux of the case, with the whole case is going to come down too. Could you explain -- I know we have members that have come in since you gave your opening statement, what that actually means? What was the public understanding of those actual words at the time?
▶ 1:06:01Mr. Cooper: Thank you, Mr. chairman. That is where the rubber meets the road in the case, what does subject to the jurisdiction of the united states mean, and therefore what does jurisdiction mean? The one thing I think we can say it does not mean is simply the laws of the united states. That is essentially the argument most advocates of universal birthright citizenship advance.
▶ 1:06:34Mr. Cooper: If it were that easy, why didn't they just say subject to the laws thereof? They didn't. They used the word jurisdiction. That is an ambiguous term. They clearly had an understanding of that term. That was related as I mentioned earlier, and as you did, Mr. chairman, to the complete jurisdiction of the united states.
▶ 1:06:59Mr. Cooper: Not the kind of temporary and local jurisdiction that a visiting foreigner -- a visiting allegiance that a visiting foreigner owes to the united states because that visiting foreigner has to obey our laws, but rather the complete jurisdiction, the kind of jurisdiction that when the person is away in a foreign
▶ 1:07:29Mr. Cooper: Country, this country cares about and extends its protection to complete jurisdiction. Mr. chairman, the clearest understanding of what jurisdiction meant was not subject to a foreign power. Because the ink on the civil rights act was not even dry when they adopted the 14th amendment.
▶ 1:07:57Mr. Cooper: And clearly, the supporters of the citizenship clause understood and intended it to mean the same thing. The final point I would make is the civil rights act was passed in 1866, say not subject to a foreign power. 14th amendment adopted and ratified in 1868.
▶ 1:08:22Mr. Cooper: In 1870, the congress came back around and reenacted the civil rights act of 1866 with the same language, not subject to a foreign power. It is just not credible at all, not remotely credible at all that that congress did not understand and mean that being subject to a foreign power as is a transient foreign visitor, and certainly is a legal alien,
▶ 1:08:56Mr. Cooper: Would be entitled to birthright citizenship and to extend that citizenship to a child.
▶ 1:09:01Chair Schmitt: Senator welch.
▶ 1:09:03Sen. Welch: Mr. cooper, if the president's executive order were enforced, would that mean that Mr. barranco and his two brothers, three marines, would not be citizens?
▶ 1:09:19Mr. Cooper: No it wouldn't. The executive order is on its face prospective only.
▶ 1:09:24Sen. Welch: Professor frost?
▶ 1:09:28Prof. Frost: A couple of things. The executive order purports to interpret what the citizenship clause has always meant. It has always meant this. It is restoring the original understanding of the citizenship clause. That clause has been on the books since 1868. So all of us would be subject to scrutiny of our ancestry.
▶ 1:09:49Prof. Frost: And for those who had a parent who was temporarily present or a grandparent or great grandparent who violated immigration law generations in the past, every once citizenship would be subject. And the administration recognizes that. They note that in their brief and ask the supreme court to apply the law prospectively only. They are arguing for interpretation that would unwind the citizenship of the nation.
▶ 1:10:12Sen. Welch: That sounds like it would create an immense amount of uncertainty for people who are here, like alejandro and his brothers, who served in the marines. As to legally what the status was as opposed -- they would have to argue about it.
▶ 1:10:29Prof. Frost: Yes, and create uncertainty for these families, not just people whose parents are immigrants. According to the trump administration, this is the memos they've issued to implement their executive order, everyone has to provide evidence of their citizenship or immigration status at the time of their child's birth where their child is presumed not to be a citizen.
▶ 1:10:53Sen. Welch: How would al hundred deal with that if it were a few years ago?
▶ 1:11:00Prof. Frost: It would be a nightmare for him and his family.
▶ 1:11:04Sen. Welch: Mr. schweizer raised alarming arguments about birth tourism in the surrogacy. Are those issues that can be addressed through legal means?
▶ 1:11:17Prof. Frost: Surrogacy should be regulated. If it is not being regulated. The california case he mentioned was a case of child abuse. Nothing in the executive order would have affected the children born to what was a green card holder in california. The executive order doesn't deal with surrogates, that is a surrogacy problem and should be regulated through that.
▶ 1:11:37Sen. Welch: Mr. barranco, I want to come back to you. There is a part of me that things we are missing the boat when we are talking about citizenship as a legal status. Because a lot of people have unquestioned legal citizenship who have served our country way less then you, you do have legal citizenship. But your father would be affected by this.
▶ 1:12:00Sen. Welch: My view is citizenship has to also include an affirmative commitment on part of those of us who are citizens to live up to the aspirations of our declaration of independence. What did your dad say to you when you were telling him you were going to go to the marines?
▶ 1:12:19Mr. Barranco: He always showed support and told me to go out and do my best and that he was proud of me, do my thing being american.
▶ 1:12:27Sen. Welch: When you say and do your thing as being american, what does doing your thing mean?
▶ 1:12:32Mr. Barranco: I think to me, that is what it means, to be on -- an american, serve your fly, love and respect it, and do whatever it takes to respect that. -- protect that.
▶ 1:12:49Sen. Welch: Thank you very much. Professor frost, I want you to go through some of the other consequences that would affect people's situation if this executive order were enforced.
▶ 1:13:03Prof. Frost: First, I want to point out because I think it is not clear to everyone when they discuss this issue, the executive order denies citizenship not just to the children of undocumented immigrants or tourists, but also to the children of people legally present in the united states for years who are applying for green cards who may receive a green card the day after the child is born, doesn't matter, under the order, the child is born a noncitizen, potentially stateless, denied the benefits and privileges of citizenship.
▶ 1:13:35Prof. Frost: Theoretically, deportable on day one of their life. And every single american family having a child will now have to prove their status before that child is considered a citizen by the U.S. government. It doesn't matter if they go back to the mayflower. That is what everyone will have to prove going forward. >> thank you, I yield back.
▶ 1:13:52Chair Schmitt: Thank you. Senator lee. >> Mr. schweizer let's go to you first. I want to talk about surrogacy arrangements. How could commercial surrogacy arrangements involving foreign clients, particularly facilitated by foreign government political elites, and of creating a long-term national security risk for the united states?
▶ 1:14:16Mr. Schweizer: You have the reality that if you are granted citizenship and your father is a high ranking ccp official, you will certainly have the opportunity to vote in elections, apply for government jobs. It creates an ambiguity problem of where is the commitment? That is the security issue. You talk about the scale of the numbers, whether the wall street journal case or the case in southern california, you are talking about large-scale numbers. That is the concern.
▶ 1:14:45Sen. Lee: Burrowing into the united states through people who would become citizens. Let's shift gears. Mr. cooper. One -- but automatic birthright citizenship, the supreme court seemed to suggest domicile was sufficient to render a person subject to the jurisdiction thereof, meaning of the united states.
▶ 1:15:10Sen. Lee: But wasn't the domicile at issue, the specific type of domicile at issue, a type of lawful permanent residents as we might put in our parlance today, wasn't it different than what we have done here? It was a probative of allegiance and consent of the sovereign? If so, doesn't make it appropriate for use here? >> absolutely.
▶ 1:15:39Sen. Lee: -- holding was so, doesn't that make it inappropriate for use here? Their child confuse entitled to birthright citizenship because they were domiciled.
▶ 1:16:03Sen. Lee: The word domicile appeared about 20 times in the opinion and the question presented, which the court articulated twice verbatim assumed in the question that the individuals, the parents were domiciled lawfully, and that is with the consent of the sovereign. >> so they weren't looking for it for purposes of federal domicile jurisdiction or something like that?
▶ 1:16:32Sen. Lee: They're using a different meaning than what otherwise might be attached with that term? >> the traditional meeting on the law of nations, senator, that is to say, the place where it is your home. The place where, if you leave, you intend to come back. You never plan to leave. That's your domicile. >> in that respect isn't it true that illegal aliens fall outside the holding of that case?
▶ 1:16:59Sen. Lee: That case avails them of nothing if they're talking about a different term? >> they plainly fall outside of that. They are not lawful permanent residents who are domiciled in this country. They are here in defiance of the sovereign's law, not with the consent of the sovereign.
▶ 1:17:26Sen. Lee: >> professor frost, would you agree that the individual in won kim arc was as we would put it today a lawful resident?
▶ 1:17:42Prof. Frost: No, he was a lawful resident and a united states citizen. >> would you say that was relevant to the case?
▶ 1:17:57Prof. Frost: In that case the supreme court said it applied to people who were here for business or pleasure. The chief justice said it's given citizenship to which the children of foreigners who happen to be born for them while practicing through the country." so everyone understood the rationale of the decision applied to everyone born in the united states. >> what's your reply to professor frost?
▶ 1:18:28Mr. Cooper: The chief justice was right about that and the sainted justice harlan objected to the dicta of the case, not to the holding of the occasion. >> so john marshall harland I was putting out among other things that this was a problem.
▶ 1:18:49Mr. Cooper: Went further and said that if is adoption of the common law use was adopted in this country it was adopted by that majority, not by the those who authored and atified the 14th amendment.
▶ 1:19:12Mr. Cooper: >> right, and the precedent has to be limited to the holding, otherwise it is dicta and this individual satisfied the description of a lawful resident, is that right? >> that's right, Mr. chairman.
▶ 1:19:34Chair Schmitt: Senator durbin?
▶ 1:19:39Sen. During Did You Bin: Several times you've given us a number, but your written testimony, you say this practice has flourished over the past 15 years, getting at least 750,000 and possibly 1.5 million chinese nationals now hold U.S. citizenship by birth on american soil.
▶ 1:20:04Sen. During Did You Bin: Professor frost tells us there's a violation of federal law here if you're using this practice in coming into the united states and your rejoinedder to her is democrats don't pay any attention to those laws. That's what you said, sir. Obama, biden, they don't pay attention to those laws, suggesting that republicans do. So how many prosecution under president trump either in his first term or this term have there been for violation of this practice? >> that's an excellent question, senator.
▶ 1:20:34Sen. During Did You Bin: A couple of things have happened. One, there's been progresses of some birth tourism companies. >> how many? >> I'm not sure of the numbers, sir. >> before you had big claims but when it comes to number, you ought tock able to tell us.
▶ 1:20:51Sen. During Did You Bin: >> the initial number of the estimate of chinese birth tourism comes from chinese -- >> I'm asking you what the administration of donald trump under this term or his first term and prosecuted under existing law which you say has created 1.5 million american chinese, or chinese americans. How many?
▶ 1:21:20Sen. During Did You Bin: >> during the tramp administration they've obstructed border control if somebody does appear pregnant to set them aside for further quick.
▶ 1:21:31Sen Durban: So you're suggesting they did nothing before. >> they did it during the first term?
▶ 1:21:40Sen Durban: How many? >> I'm not sure is, sir.
▶ 1:21:46Sen Durban: You ought to come back to us with data that backs this us. Professor frost, is this all being enforced?
▶ 1:21:58Prof. Frost: I've gotten no response after a year raef appeal. Mr. schweizer, I would love help getting that information. >> the chinese are invading america, something bird all be concerned about and yet they won't tell us what this administration is doing to stop it with the existing law. Something is missing here.
▶ 1:22:27Prof. Free-Throws: Agreed.
▶ 1:22:31Sen. Durban: How would a family go about establishing that they're property of the united states under the new straita order?
▶ 1:22:52Frost: The orders are vague, a couple of pages each. They say every family "must provide acceptable status" of their own citizenship or immigration stat us at the time of the child's birth and if they can't, the child isn't ascites. >> how do they prove it? What kind of documentation is proof?
▶ 1:23:15Prof. Frost: You potentially would have to go back generations because if your great grandparent came in without permission or was temporarily visiting when your child was punishment that would put into question your citizenship according to the trump administration clause, which I think is wrong.
▶ 1:23:41Sen. Durban: This is part of steve miller's doing in his eyes. There are only two ways to prove your a citizen basically. A passport, which half of americans don't own or a birth certificate which many women will have their maiden name on which doesn't square request the name they're using today. Why is this administration so damned determine to question whether people are here legally?
▶ 1:24:09Sen. Durban: We want people to be here legally or whether or not they're trying to diminish the rights of other americans before an election which they're very worried about. I yield. >> thank you, Mr. durban. Since you asked the question, maybe you and I can work together on enforcement of the current law. Senator black burn?
▶ 1:24:32Sen. Blackburn: Thank you so much and I agree, these laws do need to ben forced. We need to know that people are indeed a citizen in order to protect one person, one vote. I am so pleased that Mr. durban brought up birth tourism and Mr.
▶ 1:24:52Sen. Blackburn: Schweizer, you know that I have introduced the ban birth tourism act and that would amend the immigration and nationality act to clarify that birth tourism is, not permissible and to help professor frost, this would apply to people that are here illegally or people that are coming on a temporary tourist visa so this bears
▶ 1:25:23Sen. Blackburn: Clarification on that point but what we do know is in and these are not macchia's numbers, these are numbers that are coming to us on reviews by different agencies. We've got about 33,000 individuals that are exploiting our immigration and trying to circumvent the system when it comes to birthright citizenship and we also know this.
▶ 1:25:52Sen. Blackburn: This isn't something that is accidental. This is something that really is quite intentional and we are seeing the advertising of this in russia and in china. People that are our adversaries that wants to get in, want to have a child that is a citizen. Want to have that social security number. They are here for a period of time. They go back.
▶ 1:26:23Sen. Blackburn: These companies ought to be illegal. As a veteran told me last week our citizenship has not ever been and should never be addressed in this manner with people trying to game the system. So I want to give you a moment to talk about the importance of being explicit in our rule of law. About not having birth tourism.
▶ 1:26:51Sen. Blackburn: >> senator, I think your legislation is a fantastic idea and I think the reality is that the birth tourism industry essentially rests on the need to engage in visa fraud. These companies all instruct chinese women who want to do this in the united states that when you come to the united states, lie on your visa, do not say you're coming far medical -- Sen.
▶ 1:27:19Blackburn: That is important to note light there. They were instructed how to game the season and how to lie as they fill out the form it is the chinese communists providing the instruction.
▶ 1:27:36Blackburn: >> that's right and then you also have the reality that when when they come to the united states, many are instructed by the birth tourism firms to tell the local hospitals, california, wherever they're going to have it done that they're desk time even though they're members of the chinese elite, so many of them pay $6,000 for a procedure that really informed costs a hospital $40,000 so there's a financial cost to this as well.
▶ 1:28:03Blackburn: This is an industry that's predicated on gaming the system and lying about legal status.
▶ 1:28:13Sen. Blackburn: I agree with you on that. Mr. cooper, I'm pleased that you are here with us and I know that you led an am cuss brief for senator schmitt and congressman roy and we've had others, senator cruz and congressman jordan have done some talking about the citizenship clause in the 14th amendment so talk about the rationale and the legal foundation used to arrive at the conclusions we see about the
▶ 1:28:44Sen. Blackburn: Importance of upholding the original intent. Of the citizenship clause. >> for the blackburn, thank you.
▶ 1:28:58Sen. Blackburn: As I'veout lined, the original meaning of section 1 of the 14th amendment can be hinged directly with the meaning of the civil rights act of 1866 and the proposition there that only the children of individuals who are not subject to a foreign power are entitled to birthright citizenship.
▶ 1:29:27Sen. Blackburn: It was clearly, as the leading authors and supporters of the citizenship clause made clear in the debates that they did not intend to change that meaning.
▶ 1:29:42Sen. Blackburn: In fact, they intended to preserve that meaning but even know they used different words subject to the jurisdiction there and the interpretation of the ambiguous term jurisdiction comes clear in that debate. Really, it's not a close question.
▶ 1:30:10Sen. Blackburn: It means complete jurisdiction, not a temporary or local jurisdiction like a visiting foreigner might owe to the united states but the complete and total jurisdiction meaning as the supreme court in the elk against wilkins case said, which is the most directly relevant precedents on this, that the individual must joan meet and direct allegiance to the united states.
▶ 1:30:40Sen. Blackburn: That is not something that illegal aliens qualify nor visiting sojourners, as they were called, from foreign countries.
▶ 1:30:56Sen. Blackburn: Thank you. Thank you, Mr. chairman.
▶ 1:31:03Chair Schmitt: Thank you, senator. If people want to open up for a second round. Senator padilla.
▶ 1:31:11Sen. Padilla: Thank you, plaintiff. Let me begin by quoting -- Mr. chairman. Let me begin by quoting the constitution. Pretty straightforward. Citizenship is granted to "all personnings born or naturalized in the united states." all persons born in the united states.
▶ 1:31:41Sen. Padilla: Doesn't matter if your ancestry goes back to the may flower or you're first-gen like myself. If you're born in america, you're an american citizen. Full stop, end of story. I know there's a question before the supreme court. I'll get to that in a minute. Thank you to my constituents, Mr. branko once again for your service, for your bravery, not just in service.
▶ 1:32:08Sen. Padilla: You're a veteran now blue I know the last many months have been trying for you and for your family but you have not been deterred. You've continued to be vocal and strong and this is not your first time testifying in the U.S. capitol so I thank you for that as well and I congratulate you and your family on the dismissal of your father's deportation case.
▶ 1:32:31Sen. Padilla: The ability to pursue a green card is the least that we can be doing for you and your family given what you have been through. And I want to ask you to repeat about what this has meant not just for your father but for you and your brothers. My question is for my colleagues here in the senate, both sides of the aisle.
▶ 1:33:01Sen. Padilla: Think about the message that this is sending. When manage barranco and his brothers chose to enlist and went to enlist. The united states government, the united states marine corps was more than willing to say yes, thank you. Welcome. We can use you. We will train you, we will educate you, we will deploy you, at risk risk.
▶ 1:33:39Sen. Padilla: Barranco has been honorably discharged. It's he's a veteran. When it comes to how this administration is treating the father of three man, it is the opposite question, despite working in the united states, despite paying taxes, despite raising a family and encouraging and inspiring not one, not two, but three service members willing to pay the ultimate sacrifice for the quiet of america, this administration
▶ 1:34:11Sen. Padilla: Thinks Mr. barranco needs to go. Think about the message that this administration is sending. Question for professor frost. President trump is trying to change the way we fundamentally understand sisship. The question is yes or no. Is the 1th amendment citizenship clause clear about birthright citizenship?
▶ 1:34:37Prof. Frost: Yes. >> ok, let me transport you, suggest that you are appearing before the united states supreme court. What would your message be to the justices?
▶ 1:34:50Prof. Frost: I would tell the justice that the reconstruction congress in the 1866 and the nation in 1868 added this provision toover turn dred scott and the stain of that as it has sullied our constitution and during that they made clear that citizenship was to everyone born on american soil.
▶ 1:35:20Prof. Frost: The there was only one exception and then I would point out in addition toe that language to that congress and what the nation understood at the time that it's a perez tents from 1898 established clear that won a key mark bosh in the united states and everyone else born here whether for business or pleasure, whether just passing through is a citizen of the united states and this very court, I'd point out they
▶ 1:35:50Prof. Frost: Repeated that in decisions in the 19 50's, in the 1960's, in the 19 80's and that's why every lower federal court to address this issue has rejected the trump administration release executive order as unconstitutional, including a number of judges who were nominated by republican presidents. >> on and off.
▶ 1:36:11Chair Schmitt: Senator? >> thank you, Mr. chairman. My colleague read the production of the 14th amendment that says all personnings born in the U.S. that is very clear but then there's the second part -- and subjects to the jurisdiction, etc., so I do want to get clarification from your professor frost.
▶ 1:36:39Chair Schmitt: All of a sudden the opponents of the plea language of 14th amendment suddenly wants to read into the 14th amendment complete -- subject to the complete jurisdiction. Is that a necessary reading of the 14th amendment?
▶ 1:36:55Prof. Frost: Those who are looking to rewrite the 14th amendment often have to literally do that. They have to add the word allegiance, which is not in there. Add the word domicile, which is not in there, add the word complete. This was clear in 1865.
▶ 1:37:16Prof. Frost: Marion webster's dictionary says it means under the authority of the government and when they discussed the exceptions such as for native americans, they made the point that native american tribes were not "summit to U.S. law." so that was why they accepted them. That is not logic that would apply to any other noncitizen on their child. >> I don't think the court should be asked to read in language that doesn't exist.
▶ 1:37:41Prof. Frost: I would say the plain meaning subjects to jurisdiction but apparently nothing is plain to people who are trying to make another kind of argument. The people who are born in this country, born on our soil and I think Ms.
▶ 1:37:58Prof. Frost: Frost, you mentioned there are 255,000 children born on american soil and I would say that most of them are probably not here because of tourism or birthright tourism or whatever you call it.
▶ 1:38:17Prof. Frost: I heard your testimony that there's little evidence as to how many people come in through the kinds of fraud that they were told but to the extent that there is fraud you are saying that there is already a law against this type of so-called gaming of the system.
▶ 1:38:35Prof. Frost: Yes, there's a regulation on the books that should ben forced and that would solve the problem of birth tourism and we wouldn't have the question the citizenship of every other child born in the united states.
▶ 1:38:48Prof. Frost: >> I would say one should not toss out the amendment or the codification of this amendment based on a circumstance that can be addressed in some other ways without having to throw out basically the constitutional amendment and the codification and I believe your testimony was that a president cannot seek to change the law through executive order.
▶ 1:39:14Froufrous: Yes, and I would say president trump recognizes this. He doesn't claim to be rewriting the citizenship clause but claims to be restoring it and adopting an interpretation that at no point in history has ever been adopted by any executive official. He claims he's restoring the meaning.
▶ 1:39:36Froufrous: >> to some of that that is not a restoring but undoing the meaning, the meaning of the 18th amendment as it has been intermented for 100 years or so. So once again, this is a regime that has an -- is antithesis cal to immigrants and they will try to get rid of immigrants in any way possible, including those by virtue of being born in our
▶ 1:40:06Froufrous: Country. The impact of this kind of interpretation could affect millions of -- if there is retroactive application, which there's nothing in the executive order or anything that the supreme court would deem that this kind of interpretation cannot apply retroactively so there would be millions of U.S.
▶ 1:40:38Froufrous: Citizens who could be denied citizenship as a result. Isn't that right?
▶ 1:40:43Prof. Frost: That's correct. The trump administration says this is absolutely retroactive. >> so if you're denied citizenship and if the regime gets its way with the save act which would require proof of citizenship in order to vote, does that mean that millions of people in our country who are citizens by virtue of being born in this country would be denied the right to vote?
▶ 1:41:10Prof. Frost: Yes, including the right to vote and serve on a jury. >> so this kind of interpretation would lead to utter chaos in my view and in there's already another way to deal with the fraud that we are told is going on, I think there is an appropriate way to deal with the fraud without totally undoing the constitutional protects that millions rely on. Thank you, Mr. chairman.
▶ 1:41:38Chair Schmitt: Thank you, the statement that no check active branch or officers have taken that position is false. The entirety of the 19th century was littered with examples. The attorney general john williams did and secretary of state, frederick freelying house also deny also denied birthright citizenship because his parents were here temporarily. Senator cruz?
▶ 1:42:08Sen. Cruz: Thumb. From 1861 to 1865 nearly 400,000 union soldiers fought and fell to prove where the principles of the declaration would remain mere words on a parchments or become the moral foundation of this republic.
▶ 1:42:25Sen. Cruz: The theirs proclaims a simple but yet revolutionary truth, that all men are created equal, that they are indown do youd by their createddor with certain unailable rights, among them life, liberty and the pursuit of happiness but for nearly a century, america struggled with that promise. One of the darkest chaps terse in our history.
▶ 1:42:54Sen. Cruz: You're familiar with the decision of dred scott. That decision held that african-americans, whether slave or freed could not be citizens of the united states. Correct? >> that is correct.
▶ 1:43:06Sen. Cruz: The court also denied african-americans equal political rights by denying citizenship. >> correct, they were denied all privilegeses and ahumanities.
▶ 1:43:20Sen. Cruz: Would you agree that that pushed the country even closer to civil war? >> it did.
▶ 1:43:28Sen. Cruz: It is hard to imagine a decision more corrosive to the theirs. Many post its the dread scott helped cause the civil and war and when that ended in 1865 the legal status of the newly freed slaves was far from settled.
▶ 1:43:51Sen. Cruz: Was it clear as a matter of law that the freed slaves would fully enjoy the rights of citizenship? >> not in dred scott was still good law.
▶ 1:44:04Sen. Cruz: If the constitution remained sensed silenced, the rights of the newly freed saves could be undermined and even stripped away by potential courts. So congress acted. In 1866 it passed the civil rights act declaring that the newlymans paided slaves were citizens of the united states.
▶ 1:44:29Sen. Cruz: Even after that act passed were from serious doubts about whether congress has the constitutional authority to enacts it? >> yes,er in.
▶ 1:44:37Sen. Cruz: So congress chose a more permanent solution. The mistake and the gross injustice of dred scott. All persons, born or natural under the jurisdiction thereof are citizens. That sentence settled the question of citizenship after the bloodiest war in american history. Mr.
▶ 1:45:05Sen. Cruz: Cooper, would you agree that the sitship clause sets forth two requirements for sitship? First, that a person must be born or naturalized in the quiet and seconds that the person must be" subjects to the jurisdiction thereof." >> that's clear from the fails of the amendment.
▶ 1:45:23Sen. Cruz: And is it fair to say that the current debate over the birthright citizenship centers on the meaning of the seconds phrase? >> that's right, subject to the jurisdiction thereof.
▶ 1:45:38Sen. Cruz: When the amendment was adopted in 1868 was the phrase subjects to the jurisdictions tulloch understood to require alleges in a resip ro cal sense? >> it certainly was required by noise who authored it and supported it in the united states congress.
▶ 1:46:02Cenacles: So it was understood that way by scholars, by judicial members. >> and by those in the supreme court in the elk case.
▶ 1:46:13Sen. Cruz: Mr. cooper, was this also the you think soing of the authors of theth amendments?
▶ 1:46:22Mr. Cooper: Yes.
▶ 1:46:22Sen. Cruz: And as you noted again, this was the same understanding reflected across the board in the early decision of the courts such as the slaughterhouse cases elk vs. Wilkins and king arc. And also the leading comment at a timers of the period and the view overmeek they've officials responsible for enforcing the law, including the attorney general of the united states in 1873 and the solicitor of the treasury in 1889?
▶ 1:46:52Mr. Cooper: The consistency was remarkable, yes.
▶ 1:46:55Sen. Cruz: Would it be accurate to say that the view espoused by my democratic colleagues that the 14th amendment conferred citizenship on anyone born on in land, here lawly or unlawfully, temporarily or permanently is a relatively recent view and directly contrary to the almost universal view at the time the amendment was ratifyed?
▶ 1:47:22Mr. Cooper: It's not at all clear to me when that view took root. The united states in its brief to the supreme court suggested during the administration of f.d.r. But it is certainly inconsistent with most everything that preceded it. Everything I would say against the dicta in won kim arc. The incorrect dicta.
▶ 1:47:49Sen. Cruz: Thank you. Mr. cooper was my very first boss in private practice and I came to work for him as a baby lawyer and he quite literally taught me how to practice law so let me apologize to the committee for all of my sins. Please do not hold Mr. cooper responsible for all of my many errors in the decades sense. Mr.
▶ 1:48:14Sen. Cruz: Coop pressuren I think you were trying to hold me to the exam you too took and only got a b +just now.
▶ 1:48:28Sen. Cruz: Thank you. >> professor frost, I want to get back to the point about the individual in won kim mark. I know he was born in the united states but what about his names weren't he is parents living here in a status we would correctize as lawful practice?
▶ 1:48:52Prof. Frost: Saying my statement was frost. The quotes he read are not inconsistent with what I said. No executive branch official has ever taken the position that people who are domiciled in the united states that their children are not sits and that's not inconsistent with the quotes he read. Just to clear that up. Now your question.
▶ 1:49:20Prof. Frost: Kim's parents had left the country at the time the case was decided. They left when he was about 11 years old. He had to keep working in the united states but they left. >> prior to that had he acquired lawful status?
▶ 1:49:37Prof. Frost: That provision wasn't there then but they were lawfully present at the time he was born. >> Mr. cooper, first, you want to respond any to that? You looked pensive.
▶ 1:49:51Mr. Cooper: Yes, thank you. Only the proposition that unlawful -- illegal immigrants, nose who are here illegally weren't properly domiciled. These are irreckonnable comments. You cannot have a domicile unless the sovereign consents to your presence.
▶ 1:50:19Mr. Cooper: That was clear unthe law of nations and I believe it's equally clear under the law of this country. >> and how does that relate to the point you were making earlier? You describe in your written testimony that it didn't survive the french revolution, for example. Tie that in.
▶ 1:50:38Mr. Cooper: Yes, well, the common law of england was a futile concept, medieval phutted ill concept that didn't survive the declaration of independence. >> neither the american or the french --
▶ 1:51:01Mr. Cooper: Certainly, it didn't survive our revolution and it survive our revolution and it didn't survive that these united colonies are absolved from all alleges from the british crown. That's directly from the declaration of independence.
▶ 1:51:16Mr. Cooper: The notion that perpetual indesoluble subjectship, survived the declaration, survived our revolution is simply not correct.
▶ 1:51:33Mr. Cooper: That the key element in yooso lee was irrelevant unless the king agreed. This nation adopted the right of ex pate irritation.
▶ 1:51:54Mr. Cooper: It was founded on the proposition that the only just government is one by the consent of the governed, not by the edict of a king. >> so to conclude otherwise, one would have to conclude that with the resurrection of the 14th amendment that policy was resurrected, resuscitated by that and your response to that is nothing in the text supports that, nothing in the ratification detectives would
▶ 1:52:25Mr. Cooper: Support that.
▶ 1:52:27Mr. Cooper: Doesn't support it and the detectives within in body -- debates within in body, under both the 1866 civil rights act, which is inextricably intertwined with the debates and the language of section 1 of the 14th amendment absolutely refute it. Refute yoo sol lei.
▶ 1:53:01Mr. Cooper: >> and that probably would have been one of the concerns of john marshall in the dicta, is that not fair to say?
▶ 1:53:12Mr. Coop Collar: He said that in his opinion. >> tell me what oversight gaps currently exist in the united states in the surrogacy industry. Particular, I want to know about states with particularly permissive laws and how might those gaps in those laws, in those states lead to large international networks operating with minimal scrutiny.
▶ 1:53:41Mr. Coop Collar: >> primarily surrogacy is regulated a is the state level so it varies from state to state. Some states are quite permissive. Essentially unregulated. California would be an example and I believe arkansas would be another. Some states have specific rules governing how the arrangement is done, what it includes, etc.
▶ 1:54:01Mr. Coop Collar: One of the shocking details that uncovered from the accounts of some of the women who have served as surrogate mothers is that they give birth to the child and oftentimes it's not even the parents with whom they have the contract with who pick up the baby. It's a third party and there's obviously a lot of anguish about that.
▶ 1:54:24Mr. Coop Collar: >> so there's no contract really a connectivity between the mother and the person purchasing that service? >> it's usually the surrogacy company itself which acts as the middle person and the broker but some of the birth mothers compress concern because they never even meet the parents.
▶ 1:54:48Mr. Coop Collar: They were under the impression that the child would be picked up by the parents but a third party picks up the child and I think ostensibly returns it to china. >> I would imagine many places would be prohibittable to that. Which states are amenable to this type of arrange yes. >> I'd have to do more research on that to answer it with authority. >> understood.
▶ 1:55:16Mr. Coop Collar: To what extent are foreign governments themselves -- or if the foreign government itself isn't officially involved and acting through somebody not inextricably intertwined with a foreign government. Using the U.S. birthright citizenship, understanding, doctrine, practice, whatever you want to call it to promote these arrangements that might benefit their own government or high-profile individuals within it.
▶ 1:55:44Mr. Coop Collar: >> you see that on that couple of levels. First of all, the c.c.p. As I mentioned earlier as expressed that chinese nationals, particularly members of the chinese communist party have the right to this. They describe the 14th amendment, which is kind of ironic so you have this open expression that this is your right and simply who is employing these birth tourism companies. They list their clientele and these are military officers.
▶ 1:56:13Mr. Coop Collar: There's one gentleman, a -- military officer who's had three children born in the united states through this practice so these are members of the elite. Part of the c.c.p. Elite. In fact, I believe it was two foreign ministers ago, the chinese foreign minister had a child born in the united states to birthright citizenship. >> do you have a high-end estimate of how many people born in the united states over the last 15, 20 years? >> the only estimates we have are chinese estimates and they vary.
▶ 1:56:42Mr. Coop Collar: The chinese government has said they believe it may be 50,000 a year. That includes saipan. U.S. territories and the united states. Professor salvatore borbobus from australia believes it might be closer to 100,000 a year. And private research firms in china, one that said in 2018 they believe there might have been 185,000.
▶ 1:57:07Mr. Coop Collar: I don't know how to verify those but these are you a authoritative sources and it is an industry with more than 1,000 active companies so it clearly is a vigorous one. This really began en masse around 2013, 2014. That's when it really took off so if you do the math, you're potentially looking at anywhere between 750,000 to 1.5 million U.S.
▶ 1:57:32Mr. Coop Collar: Citizens that are being raised in china because these children are born here as soon as they are capable of flying. They are flown back to china and that is where they'll be raised. >> one quick argue that when looking at this arrangement on the scale that you're describing -- perhaps with as many as 50,000 annually, that -- and to whatever extent you see foreign governments themselves involved in the process, this might go far beyond the
▶ 1:58:07Mr. Coop Collar: Frustrational sought-for benefits associated with U.S. sisship that might flow to an individual or to a family. This could be more like a sovereign government wanting to have influence over the united states of america. Is that fair to say? >> absolutely. In fact, you could look at the situation in hong kong. Hong kong used to have this birthright arrangement for chinese nationals.
▶ 1:58:33Mr. Coop Collar: The numbers got so large in 2013, the then hong kong government, pre-complete c.c.p. Take over banned the practice and the reason cited was they believed it was a sub versive act on the part of the chinese government, it was intentional. You could look at the intentionality in the united states and come to the same conclusion. The fact it's not regulated or restricted, you can openly advertise it, I think the evidence is pretty clear.
▶ 1:59:04Mr. Coop Collar: >> ok and thank you. Again, I know -- I want to hit one more topic. I want to hear from professor wurman about any common lawed a-on you'd like to add to our previous discussion. Tell me what we ought to know in a minute or so.
▶ 1:59:28Prof. Wurman: Sure, common law, there's a question as to unlawfully present aliens would have been under the protection of the sovereign because that requires the sovereign's consent. There's also, for purposes of the birthright rule a connection to jurisdiction, which is if you are not under the protection of the sovereign, you weren't turned protection of the united states government, you were not entitled to access to the sovereign's courts.
▶ 1:59:55Prof. Wurman: In this sense, they could be subject to law, they could be subject to criminal prosecutionings but they aren't subject to the complete jurisdiction of the united states in the relevant sense and why do I agree with Mr. cooper that it is complete jurisdiction? Because that's the only way you get around the indian tribes. The indian tribes were subject to U.S. laws to some degree. It was not a complete jurisdiction and that's what they told us.
▶ 2:00:23Prof. Wurman: We don't regulate property among themselves so they are subject to some degree but not a complete jurisdiction. But the jurisdiction that the united states exercises over its own citizens now. That's what they told us and I would add that although this was in the coppingal globe, recent historical research has shown that most of the speeches in the congressional globe were not actually given in congress but put in the congressional globe for the campaign trail.
▶ 2:00:55Prof. Wurman: >> shocking, that would never happen today. >> of course not. So it was part of the public meaning. In what sense are temporary visitors, for example, not subjects to complete jurisdiction? The louisiana authorities thought they could not constrict children who are only temporarily there. What about domicile? Excuse me, what about judicial jurisdiction?
▶ 2:01:24Prof. Wurman: Everything understands that courts have a general jurisdiction over anybody had been domiciled within the court's jurisdiction. It is a injured that is less complete. There are other rules under the law of nations that generally sovereigns decline to exercise their legislative power over certain rights relative to temporary visitors like their status rights, marriage, things like that. Citizenship actually under the law of actions.
▶ 2:01:53Prof. Wurman: So there are many ways in which temporary visitors were not subject to U.S. law all the way down in the sense that U.S. citizens were. >> not being given a full opportunity for grievances in U.S. courts, for example? >> for example, connect. >> thank you. >> I don't have questions but I really want to thank all of our witnesses and just sum up my point of view.
▶ 2:02:18Prof. Wurman: We have an enormous debate in this country about immigration and I don't think this, what feels like an academic argument but has real consequences is going to mitigate but I think is going to aggravate the uncertainty about us. Our country has a right and obligation to have a secure border but our nation has a proud history of welcoming immigrants and that's being challenged now.
▶ 2:02:50Prof. Wurman: Our nation has several million people who are here and don't have a clear status that have been contributing members of the community like alejandro's dad and we have to find a way to resolve that. This is my point of view. But I think this whole tweak on what has been send law would hurt, not help us address the immigration challenges that we face as a nation.
▶ 2:03:22Prof. Wurman: It would inflict immense amount to have additional uncertainty and it's not as though this debate, which is something that appeals to lawyers, with the history. I mean, I'm very impressed with the professionalism and the intersect of the attorneys who have been testifying here. -- intellect of the attorneys who have been testifying here.
▶ 2:03:49Prof. Wurman: This is fundamentally a political problem that has to be resolved through discussion and collaboration and ultimately respect for the dignity of the people who are here, a respect for people who want to come here as long as it's done in the right way. So I just want to express to you my gratitude that I especially want to have you extend to your father my appreciation for what he did in raising three marines and a half served our country well. Thank you all very much.
▶ 2:04:25Prof. Wurman: >> I'll echo that thank each of you for your time today and the insights you were able to offer to the committee. Written questions for the record can be submitted until tuesday, march 17 at 5:00 p.m. We ask the witnesses to submit their responses within two weeks, by tuesday, march 31st at 5:00 p.m. Thanks again to all the witnesses for your testimony today. The hearing stands adjourned.