WASHINGTON, D.C. – A new analysis by legal scholar César Cuauhtémoc García Hernández challenges the Justice Department’s defense of President Donald Trump’s executive order limiting birthright citizenship, arguing the government’s framing is historically inaccurate and built on misleading global comparisons.
According to Hernández’s SCOTUSblog commentary, the Justice Department argues the United States should align itself with countries that restrict citizenship based on parental nationality rather than birthplace. But Hernández writes that the United States has followed broad birthright citizenship since 1868, when the 14th Amendment was adopted.
Courts reviewing Trump’s order have already raised concerns. Hernández notes that multiple federal rulings suggest the policy is likely illegal, and the issue is now moving toward Supreme Court review.
Hernández explains that the solicitor general claims broad birthright citizenship “degrades” and “dilutes” U.S. citizenship. He says the solicitor general argues that “hardly any developed country retains a theory of citizenship similar to the United States’ current approach,” a statement Hernández calls incomplete and lacking examples.
Hernández’s analysis highlights why this comparison is flawed. Countries such as Germany, Japan, and several Nordic nations historically rely on jus sanguinis, awarding citizenship through biological lineage. The United States also uses this principle for some children born abroad, but its constitutional model is different.
Under the 14th Amendment, the United States follows jus soli. Since the Supreme Court’s 1898 ruling in Wong Kim Ark, people born on U.S. soil have been recognized as citizens unless their parents are foreign diplomats, invading armies, or fall under narrow historical exceptions. Hernández notes that this interpretation has held for more than a century.
Throughout the Americas, broad jus soli is common. Hernández points out that Canada, Mexico, Brazil, and Argentina all use similar birthplace-based citizenship rules. The U.S. approach is not an outlier in the Western Hemisphere.
Hernández also traces the roots of jus soli back to England. In the 1608 Calvin’s Case, the court recognized that anyone born under the king’s protection was not an alien. He notes this principle endured for centuries before the United Kingdom narrowed its policy in 1983 as migration patterns changed.
According to Hernández, global differences in citizenship law reflect each nation’s colonial history and political development. Countries relying on jus soli often share a history of European settlement and Indigenous displacement, whereas jus sanguinis nations typically followed different trajectories.
Despite this long history, Hernández writes that the Justice Department’s petition does not address these distinctions. Instead, it frames Trump’s order as bringing the United States “in line” with unnamed developed nations, an argument he says lacks context and clarity.
The Supreme Court is expected to consider the government’s request soon. Hernández notes that the outcome could influence not just immigration enforcement but the fundamental meaning of citizenship in the United States.
The Supreme Court is expected to review the petition this week. Legal experts warn that the administration’s argument risks reshaping not only immigration policy but the longstanding understanding of who is entitled to American citizenship.
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