Birthright Citizenship and the Fourteenth Amendment, Part II

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Subcommittee will come to order. Without objection, the chair is authorized to declare a recess at any time. We welcome everyone to today's hearing on birthright citizenship and the fourteenth amendment. Without objection, uh, my friend, Mister Schmidt, will be able to participate in today's hearing purpose of introducing a witness uh and um uh asking questions of the witnesses if a member yields him time for that purpose and our friend mister from Virginia will be uh allowed to participate again if a member yields time for that purpose. I will now recognize myself for an opening statement. On June thirtieth, twenty twenty six, the Supreme Court majority ruled against sovereignty and our nation's right to determine who is a United States citizen, a key pillar of a sovereign nation. Recognizing the decades-long absurdity of automatic citizenship to the children born to illegal aliens and certain classes of legal immigrants, President Trump directed his administration to curb this ridiculous practice of birthright citizenship as it had become to be known. President Trump's executive order protecting the meaning and value of American citizenship declared that certain categories of individuals will no longer be considered to be born subject to the jurisdiction of the United States and therefore will no longer be U. S. citizens at birth. The president's mandate simply said children born to mothers who were quote " unlawfully present" or whose presence was quote " lawful, but temporary" and fathers who weren't either U. S. citizens or lawful permanent residents would prospectively receive U. S. citizenship. Most Americans would agree with a common sense order that safeguards who constitutes a United States citizen. Without waiting for the ink to dry on President Trump's executive order,

Yeah.

lower courts rushed to stop it. Eventually, the president's order made its way to the highest court in the land where a majority concluded I believe incorrectly that the citizenship clause of the fourteenth amendment was to be interpreted under the English common law principles that the majority in Wong Kim Ark had followed, not one under premised on the concepts of legal domicile of the child's parents that US Solicitor General Sauer was promoting during oral arguments before the court. In other words, the majority's reliance on the eighteen ninety-eight Wong Kim Ark decision is misplaced. Wong Kim Ark dealt with the child of legal permanently domiciled immigrants, not temporary visitors or illegal aliens. To be sure, the word " domicile" in this context means more than a temporary residence, but a fixed permanent home, unlike temporary beast holders or illegal aliens returning home after working for a stint in the United States. Justice Clarence Thomas rightly rejected the majority's argument that Wong Kim Ark settled the birthright citizenship question without including requirement for domicile. He said in his dissent, quote, " Scholars and government officials continued to agree after Wong Kim Ark that the citizenship clause did not extend to the children of foreign temporary visitors." The rule remained what it always was. A child born on American soil of a stranger, a traveler passing through the country or temporarily residing here was not a citizen. He also contextualized the historical foreign policy concerns raised by dual citizenship. And that dual citizenship could create divided loyalties during wartime, competing claims over individuals by foreign powers to meddle with domestic affairs or undermining national cohesion. Just as Thomas' analysis of the majority's position on Wong Kim Ark holds true today, as it did in the eighteen hundreds, with a record high foreign-born population at over fifty-one million aliens in the United States, many of whose legal statuses and loyalties are in question. Today we will discuss a question foundational to the identity of our nation, who is an American citizen? While the Supreme Court has attempted to remove it entirely from our elected branches, I believe such a fundamental question must be answered by the people's elected representatives. in Trump versus Barbara. The Supreme Court, led by Chief Justice Roberts, failed the American people, the Constitution, and the rule of law, and put at risk the national sovereignty and security of the United States. The majority invented, out of whole cloth, a radically new understanding not only of the fourteenth Amendment but what it means to be an American. According to the court, American citizenship is nothing more than a function of where you are born. If an illegal alien or temporary visitor arrives in America today and gives birth, her child is an American citizen. If a Chinese national flies to America days before her due date to give birth, her child is an American citizen. If that sounds insane to you, it's because it is. The Fourteenth Amendment was never meant to turn American soil into a factory for manufacturing United States citizenship. But the S- Supreme Court has effectively done just that. The court has opened the floodgates to the abomination that is birth tourism. A member of this subcommittee, Mister Gill, held a hearing on this in the oversight committee just yesterday. exposing the horrors of what happens when people for profit try to make citizens from people around the world. Birth tourism allows bad actors to prey on vulnerable mothers with the promise that by coming to America their child will be guaranteed American citizenship. It devalues the meaning of American citizenship by bestowing it to the children of lawbreakers who entered the United States without the consent of its people, almost rewarding them for trespassing onto the country's soil. It steals our nation's medical resources and other finite resources from American mothers and babies. and it allows our adversaries to manufacture a cohort of American citizens who do not live in here nor hold any allegiance to our nation, but who will one day be able to vote in our elections if they choose to do so. Will they have America's best interests in mind when they cast their ballots? A January article estimated there are at least seven hundred and fifty thousand and as many as one and a half million Chinese nationals with US citizenship who likely obtained it through a combination of the United States' absurd birthright citizenship policies and the resulting birth tourism industry. To make matters worse, the demand for U. S. citizenship for the children of Chinese nationals has led to unscrupulous companies assisting these individuals for profit. The People's Republic of China is home to over five hundred companies offering birth tourism services resulting in, quote, "more than fifty thousand Chinese nationals delivering babies in the United States every year," according to one estimate. My colleagues and I, many of whom serve on this full committee, mobilized on this alarming information in March of this year, sending a letter to the administration to end this madness. More recently, the administration dismantled a West African birth tourism ring comprised of a hundred foreign nationals using fraudulent documents and visa, quote, fixtures, end quote, to get themselves visas to get US citizenship for their children. I can list countless examples. If we saw large numbers of foreigners from the Soviet Union committing birth tourism in the nineteen eighties, the federal government would expeditiously close these legal and policy gaps. The Supreme Court had an opportunity to put an end to this exploitation, defend our sovereignty, and protect our national security, But it failed to do so. Rather than hiding behind the fiction that a constitutional amendment is necessary to fix this abuse of our laws, Congress should act immediately to rectify the Supreme Court's disastrous decision. Put simply, the Supreme Court got the decision wrong. But don't take my word for it. Justice Sam Alito began his dissent by stating the court, quote, made a serious mistake in one of the most important decisions in the history of the court. He wrote that the decision confers to citizenship on virtually everyone who happens to be born in the country including the children of birth tourists." Contrary to the majority's holding, Justice Alito argued, quote, the fourteenth amendment confers citizenship on only those children who at birth owe allegiance solely to the country. Justice Alito ended his dissent by asserting that the court's interpretation creates a strong incentive for individuals to enter or remain in the country illegally. He wrote, quote, the fourteenth amendment does not include the rule that the court now imposes on the country and this ruling will seriously affect the country's future. Joining Justice Alito on the majority's decision, Justice Thomas argued that there is clear distinction between recently emancipated slaves and foreign temporary visitors, and explains that foreign temporary visitors " are attached to their home country, lack similar bonds to this country, and would not be called upon in time of war." Trump v. Barbara is our modern day Roe versus Wade, a blatant misinter- misinterpretation of the constitution with harmful policy outcomes. To do nothing legislative would be an abject failure of the United States Congress. It is up to Congress to define, subject to the jurisdiction thereof, to put a stop to birth tourism and to uphold the integrity of what it means to be an American citizen. The Supreme Court's ruling determining that the United States must be subject to unrelenting theft of our sovereignty and security at the hands of illegal aliens and other lawbreakers from across the globe who use their United States-born children as anchors to remain in the country, leaving the American people to endure the consequences. Justice Thomas, Justice Alito and the others that joined them made their decisions

Thank you, Mr. Chairman. Thank you, Mr. Chairman. It seems that my Republican colleagues believe that no matter how false or bizarre a claim repeating it over and over again will somehow make it true. What else can explain the hearing that they've scheduled for today? As I explained last time, the majority swung and missed on this topic, the text and legislative history of the fourteenth amendment clearly establish that aside from uh rare exceptions, a person's birth in the United States guarantees citizenship in the United States. To suggest otherwise is nothing more than an disingenuous attempt to rewrite our nation's history and the very words of the constitution. And you don't have to take my word for it. The Supreme Court resoundingly agreed just two and a half months ago in its decision on this issue in Trump versus Barbara. The fourteenth amendment guarantees that all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States. That plain text is about as clear as the law can be. The Supreme Court and our Constitution only recognize to very narrow exceptions for children of foreign diplomats and children of an occupying army's soldiers situations where US law cannot be applied. Simply tweeting that there is an invasion of immigrants is nothing more than a desperate and bigoted attempt to fabricate an end run around birthright citizenship, and doesn't meet either of those exceptions. The American children of undocumented immigrants and the American children of visa holders are persons born here in America. At the moment of their birth, they're subject to the same laws of the United States as me or you or the chairman here. With an undeniable constitutional claim to the rights, duties, and protections of that reciprocal relationship, in other words, citizenship. So why are Donald Trump and our Republican colleagues continuing to question the plain, long-settled meaning of the Fourteenth Amendment? Why are they peddling obviously unconstitutional proposals to end

Right.

birthright citizenship even after the Supreme Court settled the matter once again? It's because Donald Trump and his Republican flunkies think they can profit at the polls. If they strip away from an entire group of our American neighbors their rights, their votes, and their identities, and turn them into a permanent underclass. These Republicans want to pick and choose who is worthy of citizenship based solely upon who someone's parents are and where their parents are from. In our country, where the founders banned noble to- titles and declared that no man is guilty for his father's sins, there's nothing less American than that. In short, the people who want to end birthright citizenship are pro- proposing to resurrect the infamous Dred Scott decision which tried to make bloodline the mark of citizenship. Thankfully, most Americans reject this bigoted view, one that is diametrically opposed to our nation's long-standing history and ideals. Patriotism requires us to resist the backsliding and injustice that the president and his allies are pushing. Our history, our quest for a more perfect union, has always been about opening up opportunity and civic participation, not ripping it away. Expanding our electorate has been an important part of that progress, enfranchisement, not disenfranchisement. We passed constitutional amendments that guarantee citizenship and access to the ballot box no matter a person's race or sex. In doing so, we've made our country and its government more representative, more fair, and slowly but surely, more perfect. That's a vision shared by patriotic Americans and rooted in fundamental American ideals. Any attempt to radically reinterpret the citizenship clause only serves the schemes of right-wing extremists and limits who can have a political voice in this country. Donald Trump's unconstitutional executive orders to end birthright citizenship, not to mention copycat legislation by our Republican colleagues, even after the court's barbered decision, would drag us backwards. Their efforts would upend the promise of America and consecrate a government that's not for the people, but for some people. It's been nearly a hundred and sixty years since the fourteenth Amendment rebuked the Dred Scott decision, and re-established birthright citizenship as the law of our land. In that time, the US has been made better by Americans born here to immigrants regardless of their parents' birthplace, or citizenship status. Countless prominent Americans are US-born children of immigrants, including the Chairman of the Congressional Progressive Caucus, Congressman Greg Kassar, the Chairman of the House Freedom Caucus, Congressman Andy Harris, and for the region I represent one of the greatest Eagles players of all time, Chuck " Concrete" Charlie Bednarek. If you're looking for prominent Americans who've benefited from birthright citizenship, you can look no further than senior officials in the Trump administration, like Marco Rubio or Nikki Haley, who were born to non-citizens and received their US citizenship at birth. Defending birthright citizenship is a moral as well as a constitutional imperative. The US Conference of Catholic Bishops wrote in its Trump versus Barbara Americas uh I'm sorry amicus brief that ending birthright citizenship denies the innate dignity and freedom of the person. The moral imperative, historical evidence, legal arguments, and US Constitution are apparently no obstacle to our Republican colleagues, however, as they persist in conjuring up all kinds of nonsense to justify limiting birthright citizenship. We've already heard some of our colleagues' hallucinations about birth tourism and anchor babies, the claim that nefarious expectant mothers enter the country on tourist visas just to give birth. Setting aside the fact that the Republicans' own witnesses cannot chew actual proof that birth tourism happens on any meaningful or widespread basis, any congressional response certainly does not involve upending constitutional fundamentals about the meaning of American citizenship. In fact, birthright citizenship is about as American as apple pie. Americans overwhelmingly back birthright citizenship, and extremists like Stephen Miller know they don't have the votes or the public support to pass a constitutional amendment to repeal it. So instead they're trying to do an end run, by a liberate obliterating more than a century and a half of legal analysis, and forcing a tortured reading of the English language which the Supreme Court just rejected again. Finally, let's be abundantly clear, the through-line that links this attempt to end birthright uh citizenship and every cruel immigration policy propped up by this administration serves the same goal. turning our melting pot democracy into a white nationalist ethno-state. And we will do everything in our power to fight that vision, as a Congress, as a government, as a nation. We should not be in the business of turning back the clock and allowing our country to backslide into the most shameful parts of its past. Instead, we should be passing laws that shepherd it towards a brighter future, where the promise to form a more perfect union rings true for all, rather than just a titled few. Policies that bring us toward this vision of a more just, more fair America, guided by all Americans are exactly what I and my democratic colleagues will use this committee to fight for and with that I yield back.

Thank the ranking member, I now recognize the ranking member of the full committee, uh the gentleman from Maryland, Mister Raskin.

Thank you. Thank you kindly, Mister Chairman, and uh thanks to all of our witnesses for joining us today. Well, um, the cupboard is now officially empty and the game is up. Having picked uh an illegal forever war with Iran and driven our national debt over forty trillion dollars, one quarter of which comes from this president alone, uh the Republicans are now officially barren of any new proposals or ideas to bring down the price of gasoline or diesel or groceries or housing or health care were to control the spiraling corruption and lawlessness of the administration. As a result, our friends on the Judiciary Committee are like hamsters on a wheel, spinning in place with utterly spent and discredited ideas. The summer's over, but every day we are treated now to twenty-four seven summer reruns. Yesterday we held a sixth hearing on the GOP's Defund the Police sanctuary jurisdiction bill, a bill that already passed out of committee six months ago, but is so toxic, futile, and counter-productive that even Speaker Johnson can't be convinced to bring it to the floor. But through the awesome power, I suppose, of magical thinking, our colleagues simply held another hearing as if they had not already passed the bill that the hearing was about. Today, our colleagues wish away the Supreme Court's recent five to four decision in Trump versus Barbara. And so here in Never Neverland, we are once again debating the fourteenth amendment's guarantee of birthright citizenship, which uh even the Roberts court could not disappear with its magic mega wand. In our Sisyphean effort to drag our friends back towards reality, let me recite the first sentence of the fourteenth amendment. Um, you know, some parts of the constitution may be difficult and ambiguous, like due process or establishment of religion. But this sentence is perfectly clear. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside." This sentence overturned the Dred Scott decision and reflects our commitment to a republic in which the rights of privileges of citizenship are shared by everyone born or naturalized here, not just the people who fall within an officially sanctified racial or ethnic group. In eighteen ninety-eight, thirty years after passage, the Supreme Court closed the door on the argument being advanced yet again by our colleagues in this outburst of constitutional amnesia and political nativism. In eighteen ninety eight, the court held in one key mark that the citizenship clause guaranteed the rights of all people born in the United States, including, yes, even the children of the reviled non-citizen Chinese immigrants. Despite the question of birthright citizenship being settled law for uh more than a century now, this lawless president tried to nullify that right by way of an imperious and totally unconstitutional executive order. In the aftermath, judges appointed by Presidents Ronald Reagan, George W. Bush, Barack Obama, and Joe Biden have repeatedly ruled that the order was unconstitutional and void. One of those judges, District Judge John Kuhnauer of the Western District of Washington State, a Ronald Reagan-appointed judge, did not mince words. He said, " Citizenship by birth is an unequivocal constitutional right. It is one of the precious principles that makes the United States the great nation that it is. The president cannot change, limit, or qualify this constitutional right by executive order. I can't remember a case that presented a question as clear as this. Despite, despite the court's six-three ruling on Trump's first unlawful executive order, the incorrigible nativist in the White House simply cannot take no for an answer. On August sixth, He issued two new executive orders in another attempt to refuse citizenship to people deemed unworthy. One order restricts birthright citizenship for specific categories of people, including children born to adults with connections to foreign organizations or embassies as well as anyone considered an alien enemy. It also restricts birthright citizenship to anyone whose parents are engaged in fraudulent activity to obtain citizenship. Stripping people of citizenship is a hallmark of authoritarianism. The Reich citizenship law, one of the Nazis and Nuremberg laws, stripped German Jews of their citizenship and robbed them of full political and civil rights in nineteen thirty five. Following Hitler's moves, Mussolini revoked the citizenship of tens of thousands of Italian Jews, and ordered them to leave the country within six months. The Chilean dictator, Augusto Pinochet, famously claimed to have revoked the citizenship of Ambassador Orlando Letelier, before ordering his assassination in Washington, D. C., Letelier Letelier responded, " I was born a Chilean, I am a Chilean, and I will die a Chilean." They were born traitors, they live as traitors, and they will be known forever as fascist traitors. To this day, authoritarian countries purport to deprive people of citizenship, to punish them for their speech or dissent. Stripping rightful Americans of birthright citizenship is not this administration's first dissent into authoritarianism. Alas, the president and his extremists have built a masked paramilitary force in ice, and unleashed it along with CBP agents to harass, attack, arrest and even kill American citizens, simply for exercising their First Amendment rights to record and protest government actions. Without any legal justification, Trump's ice soldiers shot down and killed in cold blood. Two American citizens, Renee Goode, a thirty-seven year old mother of three, and poet and Alex Prettie, a VA ICU nurse who were peacefully observing and protesting the actions of immigration officers. Many others have died or been wounded in the administration's reign of terror against American communities. A young man protesting in California is now permanently blind in one eye thanks to federal officers hurling a projectile at him. An emergency room nurse in Oregon, peacefully protesting government violence, was hit in the face with a tear gas canister. Homeland security agents have repeatedly entered people's homes, forcibly, without judicial warrants, and without consent to conduct arrests. In one episode, masked agents forced open a door and entered the home of a terrified US citizen, Scott Tao, in Saint Paul. Agents refused to produce a warrant or look at the identification. He scrambled to show them, to prove that he was a citizen. They manhandled him, held him in his home at gunpoint, then hauled him from the house into sub-freezing cold, weather wrapped in a blanket wearing nothing but sandals and underwear. After realizing that they had entered the wrong home and that Mister Tao was a US citizen with no criminal record agents brought him back checked his ID and left without apologizing for their humiliating and unconstitutional conduct. Mister Chairman, immigrants and their American-born children are not poisoning the blood of our nation. They are a vital part of our nation's political bloodstream. All of us in America today are the descendants of immigrants, lawful or unlawful, or somewhere in between, except for Native Americans whose roots long predate the Republic and the descendants of enslaved Americans who were brought here involuntarily as part of the slave trade. We should not punish American children by stripping them of their citizenship, what Chief Justice Roberts called in his opinion in Barbara, the right to have rights, simply because of who their parents are. that is a desecration of our constitutional heritage. Remember, always said FDR, speaking to the daughters of the American Revolution, that all of us are descended from immigrants and revolutionists. In seventeen ninety eight, at a time of anti-immigrant hysteria surrounding the alien and sedition acts, Jefferson wrote a letter to his despondent friend, John Taylor, in which he counseled, "patience to survive a moment not unlike the one we see today, a little patience and the reign of witches shall pass over." Their spells dissolve and the people recovering their true sight restore their government to its true principles. Thankfully, rereading the fourteenth Amendment itself, we constitutional textualists will continue to exercise a little patience until we can dissolve this spell and extinguish this nightmarish fantasy offered by the president just as the Supreme Court emphasized only nine weeks ago. Thank you, Mr. Chairman. I yield back.

Without objection, all other opening statements will be included in the record. We will now introduce today's witnesses. Miss Rosemary Jenks. Miss Jenks is the Co-founder and Policy Director of the Immigration Accountability Project. She's previously was the Director of Government Relations for Numbers USA and Director of Policy Analysis at the Center for Immigration Studies. I now recognize the gentleman from Kansas, Mister Schmidt, to introduce his friend and Attorney General, Chris Kobach.

Thank you, Mister Chairman, I appreciate the opportunity to introduce our state's Attorney General, my successor in that office, and uh, Some of you know General Kobach, but uh for purposes of this committee, uh you know he has a remarkable academic record, a graduate of Harvard, of Yale, of Oxford, clerked on the tenth circuit, was a professor of constitutional law for fifteen years, was a White House fellow at that time, and was counsel to Attorney General John Ashcroft in the years not long after nine eleven when many of these issues uh were freshly presented uh for the first time in some time. As well as a lengthy career in public service, uh he was our state's

I thank the gentleman. He is of course welcome to stay if he wishes to stay, if anybody wants to yield time, and I appreciate his coming here and joining us. I would note that uh the uh Attorney General has brought his young daughter with him. Uh, what is her name? Josie, welcome. Thanks for joining your your dad. I've often had my kids sitting back behind me here on the dais, and they're much taller than they were when I started. Um, I will now introduce uh, Mr. Cuccinelli. Mr. Cuccinelli is a senior fellow for Homeland Security and Immigration at the Center for Renewing America. He previously served as the Deputy Secretary of the Department of Homeland Security and the Director of United States Citizenship and Immigration Services. From two thousand ten to two thousand for- fourteen, he served as the Attorney General of the Commonwealth of Virginia. Professor Jonathan Weinberg. Mister Weinberg is a distinguished professor of law at Wayne State University Law School. His work focuses on privacy, internet law, immigration and citizenship law, the First Amendment and administrative law. We thank our witnesses for appearing today and we'll begin by swearing you in. Would you please rise and raise your right hand? Do you swear or affirm under penalty of perjury that the testimony you are about to give is true and correct to the best of your knowledge information and belief, so help you God. Let the record reflect the witnesses have answered in the affirmative. You may be seated. Please know your written testimony will be entered into the record in its entirety. Accordingly, we ask you summarize your testimony in five minutes. And I will also note we're gonna have votes called in an hour-ish. So if we can be relatively quick and we'll be pretty quick on our questions, hopefully we can wrap before we have to run to quest- uh, run to vote. But we'll see how that plays out. Ms. Jenks, you may begin.

Chairman Roy, Ranking Member Scanlon, Ranking Member Raskin, and members of the subcommittee, thank you for the opportunity to testify before you regarding the fourteenth Amendment's citizenship clause and the role Congress must play in defining citizenship following the Supreme Court's erroneous decision in Trump v. Barbara the Supreme Court's decision in Barbara overturned an executive order it did not strip Co- Congress of its constitutional plenary power over immigration and naturalization. In fact, I would argue that the ruling actually invites Congress to step into the breach that the court has created. And in fact, in response to some of the statements we've just heard, I want to point out that prior to nineteen sixty-six, the federal government required parental status information on passport applications. It was a nineteen sixty-six bureaucratic revision by the State Department, unaccompanied by any new legal or constitutional developments, that dropped the parental status questions and began treating birthright as, birthplace, as solely dispositive. So our modern application of this policy is the result of bureaucratic drift, not constitutional law. Congress should begin to address this problem first by codifying President Trump's border security policies, by passing Chairman Roy's permanent Trump secure border act, which has already been approved by the Judiciary Committee. If illegal aliens cannot enter the United States, they cannot give birth here. Justice Kavanaugh in the Barber decision explicitly noted, in his separate opinion, that Congress could amend the Immigration and Nationality Act to establish exceptions to birthright citizenship for children born to illegal aliens, and temporary residents in the country. Congress should pass Representative Brian Babin's Birthright Citizenship Act to do exactly that. Importantly, the Supreme Court's ruling in Barbara stated, that automatic birthright citizenship is not universal. The majority relied heavily on the extraterritorial fiction to explain that Native Americans diplomats and invaders were excluded from automatic birthright citizenship because they are not subject to the jurisdiction of the United States. There is a similar fiction in immigration law called the entry fiction. Under long-standing Supreme Court precedent, aliens who cross the border unlawfully or are paroled into the country are treated legally as if they are applying for admission to US territory, even though they are physically present on US soil. Just as the children of diplomats are excluded from birthright citizenship because their parents are considered to be residing on foreign soil under the fiction of extraterritoriality so too the children of unadmitted aliens should be excluded because they are considered to be residing outside the United States under the fiction of entry. The exclusion of these children from automatic birthright citizenship Congress should ensure that illegal aliens cannot obtain immigration benefits through their US born children by enacting representative Eli Crane's nuclear family priority act as well as by making aliens who have resided in the United States illegally ineligible for LPR status and for the non-immigrant parent visa included in Congressman Crane's bill. The Barbara in Trump v. Barbara is a Honduran national who was paroled into the United States under President Biden's unlawful parole program. She admitted in a supplemental declaration in the case that she wanted her child to receive US citizenship at birth so her family could take advantage of the welfare benefits that would be available. While current law makes illegal aliens ineligible for most non-emergency welfare benefits, illegal alien parents collect the benefits on behalf of their US born children. Congress should amend current law to prohibit the payment of any welfare benefits directly to any individual who is not a US citizen or lawful permanent resident. Illegal aliens and non-immigrant visa holders should be required to designate a citizen or LPR to receive welfare benefits on behalf of any US born child, and that individual should be required to use the benefits exclusively to provide for the US citizen child. Congress should clarify in the law children born in the United States to aliens employed by foreign embassies are not eligible for birthright citizenship but instead should be given the same visa status as their parents. Congress should also pass Representative Scott Perry's preventing International Surrogacy Exploitation Act to void commercial surrogacy contracts between US citizens and foreign nationals seeking to buy birthright citizenship. American citizenship is a precious commodity. Our government must zealously protect U. S. citizenship and ensure it is only granted to aliens we have legally invited to permanently join our American community. The Trump v. Barber decision, while wrong on its face, presents an opportunity for Congress to do just that. Thank you and I welcome your questions.

Thank you, Ms. Jenks. I now recognize Attorney General Kobach for your five minutes. You may begin.

Thank you, Mr. Chairman. I present this testimony uh in part as one of the twenty-five attorneys general who filed an amicus brief in support of the government's position in Barbara and also as a uh former professor of constitutional law uh at UMKC where I served for fifteen years uh the I'll just jump to the the points of contention here. The majority opinion in Barbara effectively read out of the fourteenth amendment two crucial phrases in the citizenship clause. All persons born or naturalized in the United States and subject to the jurisdiction thereof, is one of the phrase, are citizens of the United States and of the state in which they, wherein they reside. Those phrases have to be given meaning and not be uh relegated to mere surplusage, and that is a common principle of constitutional interpretation. Any meaningful analysis of this case has to really begin with Ju- Justice Thomas' dissenting opinion which at ninety-one pages is the second longest dissent ever written in the history of the Supreme Court. um, particularly long compared to the, uh, twenty-six page, uh, majority opinion. Now, normally you would say length doesn't matter, and that would typically be true. Uh, but in this case it is not, because Justice Thomas offered so many indicia of historical intent and original intent in the drafting Congress, that went completely unrebutted by the majority. I'll, I'll get to that in more detail in a minute. Justice Thomas's, uh, analysis of the citizenship clause uh rested on five things that every competent analysis has to rest on. Number one, the text, number two, the intentions of the drafters, number three in this case, the citizenship uh Civil Rights Act of eighteen sixty-six, which was drafted by the same Congress, number uh four, the practices of the US legislature branch and executive branch immediately after ratification and five subscri- Supreme Court holdings. Uh look at the text first. Uh Justice Thomas explained you have to give meaning to uh and subject to the jurisdiction thereof. Uh the clear meaning at the time was domicile. Every uh drafter referred to domicile, which is of course a a phrase, a a term meaning permanent residence when defining that term. An additional textual clue is the one I just alluded to, and of the state wherein they reside. The domicile rule aligns the state citizenship with national citizenship, and that phrase, wherein they reside, modifies both citizenship clauses. So you can't be a um, a US citizen unless you are also a citizen of the state. This is something Justice Story said in his commentaries way back in eighteen thirty three. And so the word reside is read completely out of the clause as well. The majority opinion doesn't even mention that, doesn't even address that problem with their holding. The uh second uh thing is the the second uh indicia of intent are the statements of the framers. Uh, Senator Trumbull expressed it most concisely, " What do we mean by subject of to the citi- subject to the jurisdiction of the United States?" not owing allegiance to anybody else. That is what it means." The third indicia of original intent is what did Congress do right after it passed it? What did the executive branch do right after it became part of our constitution? Um, that is the the best example of that is the uh enforcement act of eighteen seventy, which the act expressly excluded the children of temporary foreign visitors who were subject to s- the power of foreign countries from the benefits of the citizenship clause. If the majority opinion were correct, then Congress in eighteen seventy was violating the amendment it had just passed, it had just been ratified uh and just been passed by them three years earlier. The fourth thing that needs to be uh understood is the Civil Rights Act of eighteen sixty six. The reason the fourteenth amendment was drafted the way it was, was to uh constitutionalize the Civil Rights Act. Now they, and that's why they're very, they're parallel in construction in in what they do. It was thought that if Democrats regained control of Congress they would uh n- they would uh rescind the Civil Rights Act of eighteen sixty six. It was also suspected that a Supreme Court might hold that the Congress did not have the authority to pass the Civil Rights Act of eighteen sixty six. So that's why they constitutionalized it, and that's why they used parallel language, especially in the citizenship provision. Representative Bingham, who was uh instrumental in both the Civil Rights Act of sixty six and in the citizenship clause explained that the act granted citizenship only to children, quote, " of parents not owing allegiance to any foreign sovereignty." Uh end quote. And then fifth and finally, looking at Supreme Court decisions after the fact, the the Thomas decision uh Thomas' opinion looks at Slaughterhouse in eighteen seventy-three, Elkley-Wilkins in eighteen eighty-four, and Plessy v. Ferguson's dissent in eighteen ninety-six. Majority opinion all but ignores those. Instead the majority opinion rests on this futile notion that you are attached to the lord of the soil, and ignores the normal hallmarks of determining uh original intent of a constitutional provision. It is truly bizarre that they do so. I suggest that this decision may not stand the test of time. That's what Justice Thomas said. It's a five-four decision. This one, because it is so weakly reasoned, is particularly vulnerable. And I encourage this Congress to do something akin to what President uh Trump did on August sixth but in the form of a statute and that is to pick a narrow category, such as the beneficiaries of birthright uh of birth tourism and say that those individuals may not be benefiting from the citizenship clause. Thank you.

Thank you, General Kobach. I appreciate your testimony. Attorney General Cuccinnelli, it's now your time. You have five minutes.

Chairman Roy and Ranking Member Scanlon, members of the subcommittee, thank you for having me today. I'll give you the bad news first and then what I think we ought to do about it. Uh, the bad news is, of course, that on June thirtieth, the Supreme Court struck down executive order fourteen one sixty, and the court held that children born here to parents unlawfully or temporarily present are citizens at birth. You'll see it reported as six to three in many places, but as General Kobach just referenced on the constitutional holding, it was five four. Justice Kavanaugh concurred in the judgment on a statutory basis, and did so, but did not join the opinion of the court. And of course, a five vote constitutional holding is binding, uh, exactly as a unanimous one is. Until the court revisits it or the constitution is amended, it is the law. and statutes directly contradicting that ruling uh that suggests someone who is a citizen at birth on the day it's enacted uh that that law is not going to survive very well. Uh, I suggest you build every bill in this fight with that in mind. Um, there is work to be done. Um, but I'd like to start with why the court was wrong. The majority tells us the Reconstruction Congress meant to settle citizenship once and forever. This is the most extraordinary error of the case to me. They settled the question they had. The question we're talking about, primarily the status of the children of illegals, was not the question they had in eighteen sixty-six. There were no illegal aliens in eighteen sixty-six. They didn't exist, literally, until eighteen eighty-two was the first time the United States excluded anyone from the United States. Prior to that, if you landed on American shores, you were legally present. Didn't mean you automatically became a citizen, but you were legally present in the United States. Um, and so given that that didn't exist, those drafters couldn't address the question. There was no such question. There was no excludable class. The fourteenth Amendment drafters didn't weigh on lawful presence and decided against us. There was no such problem to weigh. The distinction this entire debate turns on could not have been drawn by anyone alive in eighteen sixty eight, because Congress had not yet created the two categories to draw it between. At Ellis Island of twelve million arrivals, roughly two percent were turned away. Ninety-eight of every hundred walked through lawfully. Not very many people here illegally. they were turned back and they were sent home at the point of arrival. So there was no large illegal population even during that very substantial period of immigration in the United States. Today the unauthorized population is far into the millions, approximately five percent of everyone living in the country, depending on which estimates you believe, with the fastest addition ever under President Joe Biden's open borders policies. A rule written when presence and permission were legally identical is now applied to millions of people for whom presence and permission are plainly not identical. The court got there not because the framers directed it, but because a categorical rule appears to have been easier than the question in front of them. So what should Congress do? Well, three things. First, and I've heard discussion of it, shut down the birth tourism industry. Your authority over visas, admission, fraud and commercial brokerage is uncontested. A statute reaching the marketing and the financing of travel arranged to obtain a citizenship raises no citizenship clause at all. And while others may discount the frequency of this occurrence, that doesn't suggest they disagree with the fact that if it occurred, they would oppose it. That's encouraging. And I would press hardest here precisely because it doesn't depend on getting a justice to change his or her mind and Frankly, I haven't heard even from the other side that they oppose uh shutting down that industry. Second, if you wanna test the constitutional question, do it deliberately. You heard of uh Justice Thomas's dissent, very thorough. Justice Gorsuch also drew a line. He'd sustained restriction as to genuinely temporary visitors, but doubts it as to families who have made their permanent home here, as he referenced it. Touching on the domicile-ish-ry. Draft that line and not pass it, add expedited review. And you get legitimate constitutional review to flesh out the boundaries. Third, oversight, not appropriation, writers. The agency directives issued in August carry a September five deadline. Watch them closely. The warning is this. Section five of the fourteenth amendment won't work. You need to work other ways. to solve this problem, including an amendment to the Constitution. Thank you, Mister Chairman.

Uh, thank you, Attorney General Cuccinelli. Professor Weinberg, the time is yours.

Chairman Roy, Ranking Member Scanlon, distinguished members of the subcommittee. Thank you for your invitation to testify here. Birthright citizenship is a matter of surpassing importance. You all know that in the case of Trumpy Barbara, Supreme Court held that the Constitution guarantees US citizenship to every person born in this country, subject only to a few tiny exceptions with minimal relevance to the modern world. I could take my five minutes today to explain why that decision was correct as a matter of constitutional law, which it was. But I don't think that would address any live issue before the subcommittee. The court has issued its decision. folks in debating societies can debate whether they agree with the ruling, if that's how they like to spend their time. Law professors do that a lot. But for lawyers and lawmakers, the law has been decided. So instead of explaining why the Supreme Court's decision was correct as a matter of constitutional law, I want to take my five minutes to tell you why it was correct as a matter of this country's long established understanding of what American citizenship is about. Ronald Reagan once described this country as a city upon a hill, one where, if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here. In this city, all who are born here are welcome. In America, we don't say that one person is a citizen and another is not, based on their parents' race or status or attributes. Citizenship rules that allocate citizenship one peopl- group of people, deny them to another, based on who their parents are. That's how they do things in Europe and Asia. Rules like that for a ground race, ethnicity, purity of blood. But that's not how we do it here. Our strength, now and throughout our history, has derived from our embrace of everyone who's migrated to our shores. So we don't have a citizenship re- regime that's based on who your parents were. We're rolling this together. That birthright citizenship rule has been the source of the most powerful tool for assimilation and loyalty that the world has ever known. Twenty-five members of Congress last I checked could say they were born in this country to two immigrant parents. Adult US children of s- of immigrants, beneficiaries of our birthright citizenship rule, they have a stronger belief in the power of hard work. They're more likely to believe that this country is a place where people can get ahead if they're willing to work hard. stronger than the rest of us. So in that sense, they're more American than the rest of us. If you wanna know h- how not to do it, look at European countries like France. Over there, you know, we see large populations of people who, you know, in part because they didn't get birthright citizenship, never came to identify with the country they were born and are living in. Rest of the country sees them as strangers. That's a recipe for trouble. But we don't do it that way here. If you are born here, you are ours, you see yourself as an America an American, others see you as an American. We don't have a hereditary class of non-citizens and we shouldn't want one. Framers of the fourteenth amendment insisted on this rule because they had lived through that dread scot they knew well what happened when somebody decided that the government could deny citizenship to people who were entitled to it because they were born here. Framers enacted the fourteenth amendment to remove citizenship from political control. Now there was a Senator Cowan back in eighteen sixty six now hears that the fourteenth amendment was a mistake. He said it would tie government officials' hands if they later decided that, hey, you know, maybe people born in this country whose parents had migrated from Ch- China, maybe they shouldn't be citizens. But the American people rejected that. They adopted the constitutional rule that everyone subject to the jurisdiction of the federal government is a citizen. They saw that rule, in the words of Michigan Senator Howard, as both natural law and national law. And they denied politicians the power to muck with it. So our birthright citizenship rule is a simple rule, it's a fixed rule. Supreme Court has said those temporarily in office those temporarily in office have no power to limit it, so as deprive another group of their citizenship. That's what the framers told us, that's what the Supreme Court told us in Trump v. Barbara. It's the right way to go.

Thank you, Professor Weinberg. We will now proceed under the five-minute rule with questions. I now recognize the gentleman from North Carolina, Mister Harris.

Thank you, Mister Chairman, and uh thank you to all of you panel and uh to our chairman kudos this is one of the most distinguished panels we've had of witnesses your experience and your expertise uh certainly uh speaks well a topic that makes this conversation on birthright citizenship so timely is birth tourism and this of course of course has been mentioned several times already today and occurs when foreign born uh foreign born women come to the united states on tourist visas to give birth so that their child becomes a us citizen Ms. Jinks, uh, you have worked on immigration policy for, uh, decades, and we've seen President Trump recently take action with two executive orders aimed at ending birthright citizenship and continuing to protect the meaning and value of American citizenship can you tell me what impact will the birthright executive order have on the birth tourism industry?

Well, obviously, a lot of it depends on how it's actually enforced, but I know that USCIS is looking at the ways that they can enforce it and the state department is looking at better vetting of aliens before they can enter the united states um i am skeptical to be perfectly frank that we as a nation have the will to pregnancy check women coming into the united states i i just don't see that happening um you know i think there there will be complications there um but Certainly you can go after the businesses in the United States. That is something that should be easy to do, although they apparently tend to plead the fifth when they're called before Congress to talk about their business. But um so there are enforcement ways to get around the issue of are you going to be able to stop pregnant women from coming into the country. You can certainly make it clear that it's a criminal offense. to come into the country to in order to give birth um but you can also reform the immigration laws and that's that's kind of what my focus is reform the immigration laws so that you're not giving any benefits to people who abuse our laws by giving birth here so they don't get welfare payments paid to them only the us citizen child gets them um you know there are various ways to do this potentially a residency requirement so that if the parent takes the child home with them, and the child has never lived in the United States except the day they were born, maybe they can lose their citizenship.

Let me ask you as a follow-up. How sophisticated have birth tourism businesses become in helping foreign nationals obtain visas, enter the country, and give birth here?

Frankly, I don't think they've had to become very sophisticated because it's been so easy. Um, you know, the the the industry has grown. Uh, obviously, it it's huge. Now it's multi-billion dollars. But I don't think anyone has really been thinking or talking about it until fairly recently so they didn't really have to try to do much but I mean they have pretty elaborate set-ups uh with you know the uh accommodations for the people coming in and they get them the visas and then they have a period after the birth. where they get them the documents so they have everything they need before they take the babies home. Um, so there are a lot of ways to interrupt that cycle that we should be pursuing.

Thank you. Mr. Cuccinelli, I wanna focus for just a moment in my last minute on the practical impact of birthright citizenship on our immigration system and particularly the incentives it may create based on your DHS and USCIS experience. What challenges does birthright citizenship create for immigration enforcement?

Well, m- Mrs. Jenks men- mentioned a number of the practical challenges of vetting, uh, for this problem in light of the Supreme Court's decision that are not gonna go away any time soon and you're not likely to see another administration with the kind of political will to confront an issue like this that we have right now ever again. Um, and that practical reality needs to be kept in the forefront of Congress's mind as you legislate in this area, because that vetting is very difficult. So I would agree with Miss Jenk's testimony about targeting the commercial aspect of this, where Congress has tremendous legal authority already to deal with those businesses

Hmm.

that are, as she noted, facilitating illegal activity, uh because at least the parents coming into the country are lying on applications to come in, otherwise they would be excluded if they told the truth, um, under current rules of entry. So, uh, that's a legal hook that is r- readily available to you all, and it should be used.

Thank you. Mr. Chairman, I yield back.

Thank you, gentlemen from North Carolina. I now recognize uh the gentleman from Maryland, the ranking member, Mr. Raskin.

Thank you very much, Mr. Chairman. Um, Wh- what would the practical consequences be, Professor Weinberg, uh for individual Americans in the country as a whole, uh if President Trump had succeeded in having the Supreme Court ratify his executive order which has been struck down as unconstitutional?

Gotta learn to manipulate the technology. One of the things that's notable about President Trump's executive order is that the executive order said it was going to apply only prospectively. It was only going to apply the people born in the future. But you know, either the president, you know, either folks in this room who support that view are right about the Constitution, or they're wrong. I believe they're wrong, but if they're right, it's not just people born in the future who would be rendered not citizens. It's also everybody living now. It's also their par- our parents and their grandparents who are potentially not citizens. Because if President Trump is right, those people never were citizens of the United States. So we'd all have to look around and find out whether we're citizens or not. Trace our lineage back and see if w- our parents or our grandparents, you know, could pass the test set by President Trump's executive order. So the answer is it would be chaos, it would be chaos just prospectively. But it would be in particular chaos, you know, because of what it would mean for us going back. I mean, the president said he wouldn't apply his rule to people except prospectively. But that just means, you know, he'd be illegally allowing people to vote, um, who under his own theory weren't even citizens of the US.

Um, Ms. Jenks, um, do you favor pregnancy checks for all non-citizen women coming into American airports? It sounded like you favored it but you weren't sure whether other people had the stomach to do it, and I just wanted to see what your position was.

Well, my position is that it is a privilege, not a right, to come into the United States, so we obviously have the right to do whatever vetting we want to do. Um.

But did you support that policy? Is that a policy that's

I have never I've never been even right.

Just cuz you raised it, that never occurred to me before. Um.

It it's actually been proposed quite a number of times, not by me. Because I don't think it's feasible.

Okay.

I'm not opposed to it though, I just don't think it's feasible.

Okay. Um. Let's see. Um, Professor Weinberg, there are other provisions of the constitution like the prohibition on bills of attainder, taints of blood, the granting of titles of nobility, that embody the ideal that a person's status cannot be defined by the state through their parentage. And after all, we're a country that was conceived in a revolution against monarchy, in the idea of hereditary succession. Um, would you agree that birthright citizenship guaranteed by the fourteenth Amendment is not just a policy choice but a reflection of American values that we don't have different classes and casts that are passed down from one generation to the next?

I think that's absolutely right. Um, one of the part of debates during the S- Civil War over citizenship, the question was, do we want oligarchy or do we want democracy? And the answer we gave was that we wanted democracy. We don't want people's status to be determined by blood. Rather, we're all equal, we're all citizens. That's the choice the framers made.

Yeah. Um, the vast majority of the arguments I heard from your distinguished co-panelists were really against the Supreme Court's decision, arguing uh why Chief Justice Roberts and the majority got it wrong. Um, can you see any utility in our keeping this political dialogue going? I mean, is there something that we could actually get out of this? Or, yeah, I mean, is it essentially just a question of, you know, sour grapes at this point that people don't like the way that the court ruled?

Well, I mean, the court ruled. It's, I mean, it's easy for me to say that because, you know, the court was right. And if you're committed to the belief that the court was wrong, you might wanna sort of claw at that, I have cats, and they go And they add things they don't like. But no, the Supreme Court is ruled. think that the committee would do well, you know, as, you know, one of my co-panelists just said, to accept that the court has ruled and move on, consider what its options are in the light of the court's ruling, not relitigate it.

Yeah. Well, it does seem like that we go through these periodic outbursts of nativism and anti-immigration, feeling we seem to forget that almost everybody here is descended from an immigrant if they're not Native American, or if they're families weren't brought over involuntarily as slaves. Um, but there does seem to be these periodic um, pushes to negate birthright citizenship and uh anyway, I appreciate what you've had to say about the values of the country. You're back.

Uh, I think this is someone from Maryland, I'll now recognize the gentleman from uh California, my friend, Mister McClintock.

Uh, thank you, Mister Chairman. Well, you can put me down as one who believes that the Supreme Court was dead wrong. in its decision, but it does have the legitimate authority to be dead wrong under our constitution, and I think we have to respect that. After all, we're not socialist democrats on this side of the dais. We don't question the sup legitimacy of the Supreme Court or threaten to upend its membership when we don't agree with w- its decisions. It's and it's but it's not clear to me what Congress can do, in the presence of the Supreme Court's decision. I think, Mister Cucinelli, you made you made that point fairly clearly and and and and their decision might have been wrongly reasoned but it was definitively stated. Given that, it seems to me the only clear path is a constitutional amendment um which for some very good reasons is a very heavy lift. The other clear path is to to wait until circumstances have changed and attempt to get the court to reconsider. But as I read Barbara, the court held that subject to the jurisdiction thereof, applies to anyone born in the United States. And that anyone born in the United States as a citizen, they explicitly rejected any exception. So anything we pass in contradiction to this ruling is obviously unconstitutional. And again, let me be crystal clear. I fervently disagree with the decision. I fervently agree with Justice Thomas's brilliant dissent. I agree with all the arguments we've just heard in opposition to the decision. But that's irrelevant. I'm not sitting on the Supreme Court. Um, I'm for all of the the stringent entrance restrictions and the strongest enforcement of immigration law, but I don't see how a law barring pregnant women entering the country wou could be enforceable as either a practical or a privacy matter. Uh, I don't see how any visa restrictions on birth tourism would work in the presence of Barbara. Uh, a foreign national can be here illegally. They can violate all of their visa restrictions. But under Barbara, that doesn't seem to matter. So, Mister Kuchinelli, what am I missing?

Uh, you're not missing anything there, Congressman. Um, you know, we've talked a lot about where you can work, which is the birth tourism commercial side. And it is true that, uh, a simple question about pregnancy, knowingly and falsely answered, makes that person a criminal in the United States, a felon actually.

But it doesn't make any difference to the

Doesn't change, doesn't change the status of the child born by that process.

So the bor- if the child's born in the United States, the mother leaves with the child the next day, they're out of the jurisdiction, but under Barbara, that child is a US citizen.

And you noted the subject to the jurisdiction there of language, and I would agree with Attorney General Kobach's initial assessment of that, that the majority opinion effectively turns that language into surplussage. It makes it irrelevant,

Yeah.

which is a constitutionally inappropriate way to interpret a constitutional provision. And yet they have, and they are the Supreme Court,

A

not the almost Supreme Court.

Right.

So we're you're stuck with this.

And a and as I said, I agree with all of the arguments that have just made an opposition to that decision, but that doesn't matter. It's their decision to make. So the the the question that I still haven't hear had clearly answered is short of a constitutional amendment or a

So there are we've talked about birth tourism. There are other n uh I'll characterize them as narrower

Yeah, but again, birth tourism doesn't work bec- in the presence of a decision it might be.

Well, uh, no, you can reduce that industry very substantially through legislation and regulation. Um, the the fact that um you have businesses all over the world, not just in the United States, facilitating that whole process is something that on the US side you can go a long way to shutting down. And um uh under law, and you can beef up the law in that respect by what you pass here. Uh that is not a hopeless undertaking, it is not a useless undertaking, and it's also targeting people who are being particularly abusive of the benefit of American citizenship. I mean, they are leveraging it for their own advantage to in a way that even, uh, the vast majority of illegals who come into our country illegally are not, um, because they do wanna be here, uh, for rather more complete reasons than the folks who are fraudulently taking advantage of the birth tourism opportunity to, uh, obtain citizenship for their children.

But under Barbara, it doesn't matter if they're fraudulently entering the country.

Correct.

They're, yeah.

Thank you, gentlemen of California. And I recognize the gentlelady from Washington, Miss Jaipal.

Thank you, Mister Chairman, um and I appreciate that my colleague across the aisle who just spoke is at least even if he disagrees with the Supreme Court decision, recognizing that there this is somewhat of a waste of time to continue to re-litigate this, um been very clear from the very beginning, birthright citizenship was established through the fourteenth amendment, over a hundred and fifty years ago, it is essential to our country for all the reasons that Professor Weinberg has talked about and any efforts to not recognize such citizenship is blatantly unconstitutional. When our subcommittee uh first held a hearing on this last year, we heard over and over again why the history and the language of the amendment guaranteed birthright citizenship. This past June, the Supreme Court agreed with that analysis and struck it down. Trump's executive order attempting to, but here we are again, uh, because Trump's executive order attempting to eliminate birthright citizenship is continuing in different forms. Not because the law changed, not because the court left the door open, but because Donald Trump refuses to accept no foreign answer. Trump's response to the court's clear decision wasn't to comply with it, but rather to sign two more executive orders, dressed up in new language, chasing the same unlawful goal. So Professor Feinberg, one of Trump's new executive orders, strips citizenship away from children of parents who are branded, quote, alien enemies, defined to include members of a foreign terrorist organization, or FTO. What are the origins of that term, And how broadly does it apply? And how has this president weaponized the idea of, quote, alien enemies to advance his deportation agenda? Turn on your mike, sir. Thank you.

Thank you.

Excuse me.

Thanks uh thanks so much. Just a few things about that executive order. It says you're not a citizen if you have a parent who was an alien enemy, defined to include any member of a secretary of state designated FTO, or any of the thousands of people who are subject to economic sanctions, cuz they're on the Office of Foreign Assets Control specially designated nationals list. Now, you know, for starters, not everybody on that list is an is an enemy of the US. Trump administration has put four judges of the International Criminal Court on the specially designated nationals list so I guess if they had children in the US they wouldn't be citizens. That weren't blatantly unconstitutional, it would still be incredibly petty. Um, not every organization on the FTO on the foreign terrorist organizations list has any beef with the United States. They may be someone's enemy, but they're not our enemies. Also worth noticing that the word " enemies", uh, that the term " enemy" includes people on these lists, the EO says. It doesn't, the EO doesn't say it's limited to people on those lists. So presumably it can clu- it can include anyone the Trump administration thinks is an enemy. And we know this administration has a really broad view of who its enemies are.

And so why does this exception as practiced by the Trump administration violate the Supreme Court's decision in Barbara?

In Trump v. Barbara, the court said that you're not born within the jurisdiction of the US if the place you're born is military b- militarily been taken over by a hostile occupying power so that the US government literally has no power of it. But that doesn't mean, as the EO would have it, that someone who's born in a hospital in Denver or Philadelphia isn't born within the jurisdiction of the United States, just because his daddy is, you know, a member of Hamas. That's ludicrous. You know, that's not what the court on explained that the term means.

The executive order also, you mentioned this, strips citizenship from children of green card holders, other lawfully present non-citizens who happen to work for a foreign body or an internet foreign government or international body. How broadly does that category apply? And does that also violate the Supreme Court's decision?

Yeah, according to the EO, if you're born within the US to non-citizen parents, but one of your parents say works as a janitor in a foreign embassy, or one of your parents is an employee of an international organization like, you know, the International Pacific Halibut Commission or the Great Lakes Fisheries Commission, well, I mean, you're not a citizen. And there's the same problem there. I mean, the children of ambassadors are an exception to birthright citizenship because the children of ambassadors have diplomatic immunity. The children of embassy janitors do not have diplomatic immunity, so they don't fall within the exception that Trump feed Barbara Obregne.

And so is Trump's new executive order just as unconstitutional as his initial executive order?

It is even more un- blatantly unconstitutional because it comes after Trump

Even more unconstitutional. Remarkable that we're here with just so few legislative days less left in the session and here we are doing this again. Thank you.

I think the General Leader from Washington, I now recognize the General Leader from Wyoming, Ms. Hagerman.

Thank you, and I'd like to begin by stating that I also strongly disagree with the United States Supreme Court's majority interpretation of the Fourteenth Amendment citizenship clause. There is simply no way that the framers of the Fourteenth Amendment intended birthright citizenship to operate as it does. today, and we know the amendment was intended to establish citizenship for those who already had a meaningful connection and allegiance to the United States, namely enslaved people. The court's egregious and incorrect interpretation has had significant consequences for our immigration system, and in turn for those who follow our laws and go through the legal process to earn the privilege of American citizenship. In fact, I very much appreciate the fact that Professor Weinberg just admitted that the Supreme Court's decision uh would cover the children of members of the terrorist organization Hamas, and that alone should be sufficient for the uh folks on the other side of the aisle to want to work with us to fix this horrific mistake from the United States Supreme Court. While there are many arguments that can be made,

With with with respec- with respect to that,

actually you did say that,

I think you may have I think you may have misspoke.

Professor Weinberg, no, Professor Weinberg, I didn't ask you any question. You made that comment a moment ago, that a child of Hamas would be covered by the Supreme Court decision.

Yes, that's right.

You stated that.

That's right.

Yes, you did. So there are many arguments that can be made against the Court's misinterpretation of birthright citizenship, but today I want to focus on one specific issue that is enabled by the current interpretation as well as our nation's lax surrogacy laws, and that is international surrogacy. International surrogacy allows foreign nationals to essentially rent the wombs, of American women to obtain US citizenship for their children, and perhaps eventually for themselves. This unfairly affects American women, children born through these arrangements, and our national security, as some reports indicate that over forty percent of those who use international surrogacy are Chinese nationals. This is an issue that has been occurring across the US for years, with studies showing that the practice has increased each year since twenty fourteen, While it has been con concentrated primarily in states such as California, Illinois and New York, I have even heard reports of it occurring in my home state of Wyoming. A Wall Street Journal investigation revealed that one wealthy Chinese man has fathered over one hundred American-born children through surrogacy. Another Chinese man reportedly used American models as egg donors to have ten daughters with the intention of one day marrying them off to powerful men. In another case, an American surrogate was reportedly left

Uh, none. And it exposes our, both our country security-wise It exposes our, both our country security-wise, um, and the individuals involved in, uh, to extreme exploitation.

To what extent do other countries permit international surrogacy and under what conditions?

Uh, I'm not aware that there has been much regulation of this industry anywhere in the world at this point, but it is the United States where people all around the world would like to go and be and live. the that's part of why our citizenship is so valuable. It's a cycle. We've made it so as a country over two hundred and fifty years. And uh and so we're the target of those landing places.

Well, the Trump administration has taken steps to address the use of birthright citizenship in connection with international surrogacy and again everyone on the other side of the aisle should support those efforts including you Professor Weinberg. You apparently don't seem to think that that's very serious. I do. I think that it is exploitation of the women and I think it's incredibly dangerous. I have encouraged the administration to go further by addressing the incentives that allow this practice to continue, including considering whether visas should be restricted for foreign nationals who come to the US specifically to obtain a child through surrogacy and whether American surrogacy agencies should face accountability for facilitating these arrangements. Attorney General Kobach, could Congress restrict or deny visas to foreign nationals who come to the US for the specific purpose of participating in an international surrogacy arrangement.

Yeah, absolutely. That's within Congress's authority. It's uh, you know, I'd in fact it's already uh arguably within the authority of the executive branch to do the under-existing laws, too, but I which are more generally worded, but certainly a specifically worded law would be well within con the constitutional authority of the government.

In cases where the intended parents are unable to enter the US, we have heard reports of third parties being sent

It could be done. It would be much harder to enforce,

Mm.

obviously, because you're then looking at multiple people involved in it. But if it were established, yeah, a law could a law could certainly prohibit it. Uh, and and enforcement authorities could potentially find some of the cases, but it would be it would be difficult.

I'm out of time, but I do ask to have several uh items for unanimous consent to insert into the record. Uh, the international gestational surrogacy in the United States, twenty fourteen to twenty twenty, from the National Institute of Health, dated April first, twenty twenty five. The Chinese billionaires having dozens of US-born babies via surrogate The Wall Street Journal December thirteenth, twenty twenty five. A Florida surrogate, a father in China, and the babies caught between Wall Street Journal July thirty first twenty twenty six and a letter from myself to the President of the United States dated August twentieth twenty twenty six trying to address this international surrogacy uh situation that we're dealing with. Um

With that objection.

Thank you.

Thank you, gentlelady from Wyoming, and I now recognize the gentlelady from Vermont.

Thank you, Mister Chair, and I thank the witnesses for their time. So I was fortunate enough to spend August back in Vermont with my constituents and I heard a lot about the war in Iran, I heard a lot about the outrageous trade war with Canada, I heard about Vermonters losing their health care, I heard from people who can't find housing, I do not know how they're gonna make ends meet right now in this terrible economy. So you can imagine my disappointment and frustration when I see that um a very first hearing back is on a topic that has no connection to the lives of Vermonters right now. And this is the second time this Congress, that this subcommittee, has spent time on birthright citizenship. A year and a half ago we sat right here and our Republican colleagues argued that the Supreme Court should overturn a core principle of our nation that people born in this country are citizens. They urged the court to overturn a century of law based on a wild theory That didn't happen, and yet here we are again. So, for the record, Mister Weinberg, Professor, thank you for being here. Did the Supreme Court uphold birthright citizenship in Trump v. Barbara? Thank you. Republicans pushed their wild theory. The Supreme Court has spoken. The court confirmed what any law student can tell you. The fourteenth amendment guarantees citizenship to the people born in this country, asked and answered, black letter law remains black letter law. So why are we here? Why are we having this hearing? We are here because conservative legal uh activists are playing the long game. That's what this is about. This is about history. I'm a former history teacher and it's about a historical pattern that they are trying to establish. It's a deliberate, bad faith, strategy and effort to strip people of their citizenship and expel Americans from this country.

Yeah.

Extremists conservatives have worked for decades to mainstream this idea. The Supreme Court said no, and yet they are still grasping. It was a lawyer named John Eastman, yes, that same John Eastman who was disbarred for his part in the January sixth insurrection, who first proposed this legal theory back in two thousand four. So I ask you, Professor Weinberg, what was your reaction when you first heard that the Constitution actually does not guarantee citizenship to people born on US soil?

Mr. Weinberg, your microphone, please.

Thank you. I'll say that it's not the first time, because if you look at the US history, from seventeen eighty nine through the enactment of y- of the fourteenth amendment through till the eighteen eighties, with the single exception of the citizenship of black people, there was never any doubt about the basic birthright citizenship rule upheld in Juan Camargo and Trump v. Barber. It was entirely accepted. What changed in the eighteen eighties was that there was a new political movement, you know, with its legal hangers-on, that be- tried to find a way to deny citizenship to the Chinese. And you see one of the briefs in Wong Kim Ark, on - on behalf of the government, says, " Gee, you know, if a Chinese person can become a citizen, then surely in that case American citizenship is not worth having." So, repeatedly in this country, we've seen the argument that the birthright should - we've seen arguments to try and displace the birthright citizenship rule when groups have found it expedient to try and deny citizenship to some disfavored group. You know, that's what we saw at the civil in the eighteenth.

Yeah.

I think that's what we're seeing again.

I mean, that's that's exactly what tr- we're trying to get at today. This is really about who gets to define who a citizen is over and over again. And we've talked about in this committee on this side of the aisle, it is about narrowing the view of who is a legitimate citizen of this nation. As you said, it is tied to nativism, it's tied to extremism, and I want to go back to where I started. This is not what we are hearing from, from voters back home. Open your ears. What they're saying is we can't afford to live right now, we don't have health care, we don't have housing, we want to get ourselves out of this war in Iran, This is now settled. The Supreme Court has settled this. Can we please get back to doing the work of the people in this committee? And before I yield back, Mister Chair, I have unanimous consent.

Sure.

I ask unanimous consent to enter into the record an article written for The Atlantic on August third, twenty twenty six entitled " How the Right Could Actually End Birthright Citizenship".

Without objection. Um, now the chair's not gonna recognize uh myself for five minutes. Um, Quick question here to just level set. As a matter of policy, as a as a matter of what is good for the United States, should corporations be able to profit by bringing people to the United States to have babies, and then they return to their home countries? Is Jenks yes or no?

No.

Mr. Kobach, yes or no?

No.

Mr. Cuccinelli, yes or no? Mr. Weinberg, yes or no?

Why prohibit that? Be my guest. Just don't mess with the Citizens Plus.

Okay, well, we'll come to that. But, but I just want to know whether we agree with that premise. Number two, take, take aside the profit motive. Should an individual from around the world be able to come here, pregnant, come across to Rio Grande in Texas or fly to Miami or New York or LA or anywhere else, and have a child, have that child, become a citizen, and then leave immediately? Ms. Jenks, yes or no?

No.

Mr. Kobach, yes or no?

No.

Mr. Cuccinelli, yes or no?

No.

Mr. Weinberg, yes or no?

Tempts to prohibit that would cause more problems than the than the benefits

No, no, so yes or no? So you're a yes then. You think someone should be able to do that.

Um, I think a law against that would be bad.

Okay, so the answer is yes. You think people should be able to come here pregnant, have a child, become a citizen, and then be able to leave and go home to their home country. And I I think this is a really important philosophical point that we need to recognize in the differentiation here in the witnesses. Then there's the question of policy. We are a policy-making body, the United States Congress. There's a question of law, which we've been discussing here, pre-Supreme Court ruling and post-Supreme Court ruling. Mister Kobach, you testified early, and and when you when you first started your opening statement, and I believe you have stated, and I agree, that uh Justice Kavanaugh, obviously, you know, in terms of how we look at the majority and the numbers, I'll talk about that in a minute going forward. Justice Kavanaugh raised the point about congressional action versus, say, executive order, that Congress could act, that Congress should set certain definitions. certain set limits. Am I interpreting that correct? And can you expound on that briefly?

Yes. Yes. And and that's why I think um in i- in opposition to uh Professor Weinberg's point, uh it would not be unconstitutional out of the gate for Congress to act in this area. The Supreme Court did not uh issu- the Supreme Court simply ruled that this particular wide broad executive order that the president first issued was unconstitutional he the Supreme Court did not hold that a n- all narrower all imaginable uh, statutes on the question are also unconstitutional out of the gate,

Correct.

which is why a narrow statute focused on birth tourism would absolutely be something that - that the court might reach a different result on. If it were a statute, I think you gain Justice Kavanaugh, I think also the Supreme Court didn't even address the examples that Justice, uh, Thomas gave of not - there wasn't birth tourism back in the eighteen hundreds, but he gave an example of, uh, a - a Mary Devereux an Irish uh immigrant who came to the United States and gave birth the next day. And the administration of President Harrison in the in the immediate wake of the fourteenth amendment said no birthright citizenship does not attach there.

Right.

So if you present that historical evidence to the narrow question, I think you very likely may get a different Supreme Court outcome on a on a narrow statute.

Agreed. Um, uh, Mr. Kuchnelli, do you agree with that legal reasoning as well?

Yes, I do.

Okay. And Ms. Jenks, do you agree as well?

Yes.

And, Mr. Weinberg, I'm gonna put you down as a no on on agreement with that. But but I I I'll give you a second.

I'm uns- uns- Unsurprisingly no. I think that's completely wrong.

Right, okay. So so um I think the point here is Congress can act, okay? And that Congress can act, and of course we can act. We can act in the face of a Supreme Court ruling, and then the court can uphold it or strike it down. That happens all the time, by the way. And when the court makes some sort of a ruling, we then react as a Congress, as a body, as the people. in article one. So my question here, with my minute remaining, is did we not pass laws in the wake of Roe versus Wade, um, that put constraints around abortion, whether it was federal funding and whether it was limiting time and scope of abortion? Ms. Jenks, yes or no?

Yes.

Mr. Kobach, yes or no?

Yes.

Mr. Kuchnelli, yes or no?

Absolutely.

Mr. Weinberg, yes or no? Right or wrong, policy, good or bad, did we not put constraints?

If if if if if you if you want if you want to pass unconstitutional laws, I think you're wasting my money.

Did we pass what? Did we not pass constraints? So why would it, so why would they implore you to try and stick to the laws of the Constitution? Did Congress not act, Mr. Weinberg, to pass constraints after Roe versus Wade? They did. And that's just factually true. That's not a debatable topic. They did. Congress has passed laws that the Supreme Court struck down before, Where's the point? The point is that ho- it's it's my time, Mr. Weinberg. and you know what? It's my time, Congress was wrong to do that. Mr. Weinberg, Mr. Weinberg, that's it's my time. It is a beyond disputable fact that Congress did because the body, the people, spoke and they said it was abhorrent. And here the people are saying very clearly, the people I represent in the state of Texas are very clearly saying They don't think there ought to be baby factories to try to claim American citizenship, and that the court can't create that out of thin air which it did. So Congress can act, Congress can take a step, and a future Cong- uh, court can be put to the test on that legislation. I now would recognize uh, Ms. Lee.

Thank you, Mr. Chair. Every day in this committee, to which I'm, which I'm new in. We find ourselves in uh the strangest timeline. Um, I guess we can probably also say that about the Congress, and I would also say just the - the - the topics that come up every day are discouraging and disappointing, and honestly I don't know why we're here today, cuz the Constitution is remarkably clear on birthright citizenship. It's been clear since it was ratified in eighteen sixty eight. Republicans are just making up ambiguity to justify their bigotry. This country has a history of demonizing people it doesn't like. We had to enshrine citizenship to people born in the United States because the Dred Scott decision would have continued to allow the US to deny citizenship to black people like me Trump and Republicans are now trying to deny that birthright citizenship to immigrants and while the children of immigrants, of course, haven't been subjected to child enslavement, these are kids who have only ever known this country, have only ever lived here. America is all they know. Are these people, some of whom are children of course, supposed to just be sent back to places that they've never been and they have no connections? just because Republicans believe that they're not the right type of person to be an American citizen. The fourteenth Amendment was passed post- chattel enslavement and in the wake of the Drescott decision, right? The the Birthright Citizenship Clause in the amendment was meant to get rid of what was essentially a caste system imposed on the descendants of in chattel enslavement chattel enslavement is not just a title of citizen as we view it now, but it also means being fully recognized as a person in this country, and all the rights and responsibilities that entails. Professor Weinberg, was birthright citizenship already assumed to be the law of the land for white people since the founding of this country?

It was.

Why is that?

Birthright citizenship was the law of the land for English people. Before we got here, we came to the US and it was universally assumed and held and written that that law of the land for white people was the law of the land, um, white people in England was the law of the land for white people. in the US. It was even the law of the land for black people in some northern states, in North Carolina for a while, until as slavery got more and more entrenched, the courts of the southern states said, " No, wait, wait, wait, we can't do that. We can't really have free black people be citizens." And we went down the road that led to Dred Scott.

Mm-hmm.

I will say, that brings me right next to my my next question. Without uh the birthright citizenship clause, under Dred Scott, uh the Dred Scott ruling, Could our country have a permanent legal subclass?

Absolutely.

So why were the drafters so broad with the wording? Was there a concern that they, when they drafted this amendment, that politicians could try to roll back the citizenship of black people or others in this country?

I think absolutely. I mean the famous quote um from Senator Howard that uh Mr. Critchinelli already mentioned is that is that the framers of the fourteenth amendment meant to resolve this issue. They meant to take cit- citizenship rules away from politicians and have them enshrined in the constitution that, no, abs- except for the exceptions in the English common law, one other that's not relevant here, we're all citizens and co- and politicians can't mess with that.

So would the framers be shocked by this hearing and uh the executive orders from Trump?

Well, the framers would be shocked by a lot of things if they were if they were alive today. But yes, I think this would be one of them.

The framers of the class were were right to be worried, as you say, about the rolling back. In the case of Wong Kim Ark, which reaffirmed the fourteenth amendment just thirty years later, the Solicitor General argued in his brief that the passage of all three reconstruction amendments was a quote " a blot on our constitutional history", unquote. This former Confederate officer felt that these amendments, which also emancipated the enslaved and granted black men voting rights were forced upon the ten southern states. Wong Kim Ark wasn't just about a challenge to the citizenship of children of Chinese immigrants, but also a challenge to the legacy of the Reconstruction era, when we finally ended the cruelty and the inhumanity of child enslavement. Every time birthright citizenship is challenged, the goal seems to be to get this country back to when it was only white people who were guaranteed the right to call themselves a US citizen. Birthright citizenship shouldn't be, uh, subject to the whims of politicians. When Trump tried to end birthright citizenship with his executive order, he was deciding who is worthy of that right. and who is not, when he himself is the child of an immigrant. Unfortunately, that fight isn't over. Just after the Supreme Court ruling, Trump issued two new executive orders to chip away at birthright citizenship. Republicans are also trying to go after it by offering constitutional amendments and bills which would restrict it. My Republican colleagues, nearly all of whom are descendants of immigrants themselves, are not more deserving of citizenship than people who got here a bit later than them, or who are a bit browner than them. Birthright citizenship doesn't depend on your skin color or your religion or your wealth or who your parents are. The fourteenth Amendment is clear. If you were born here, you are one of us. Thank you and I yield back.

Thank you, gentlelady, I'll now recognize the chairman of the full committee, Mister Jordan.

Thank you, Mister Chairman. I I actually wanna shift a little bit. Professor earlier said that, you know, good people come to the country cuz they, you know, who wouldn't wanna come to America? Best country ever and they w- they come and it's good people wanna come here, work hard, chase down their dreams, achieve their dreams and goals, but through through working hard. I I I agree with that. But there's also some bad people coming to the country. Um, and I think uh when you have the situation we had under the previous administration where there was no border, and ten million people came in the country in four years, we know a bunch of them are bad people coming for the wrong reasons. We know that cuz there's one time they wound up on the terrorist watch list. And I would argue one of the things that attracts bad people to come to the country is when you have that open border but even worse is when you have sanctuary jurisdiction. That becomes a magnet for people to say, oh, I can just walk into the best country ever with whatever motives and intentions I have, and there are eighteen cities, eleven states, three big counties like Fairfax County next door and the District of Columbia, where I got sanctuary. Would you agree that that is a reason that some bad people, I'll I'll go to the the law enforcement folks here, mister uh uh the the Attorney General, mister Cuccinelli, mister Kobach, would you agree that's a that's probably an attraction for some bad people to come to this country?

Absolutely, and we absolutely know that they respond to the incentives in place.

Yeah, Mr. Kobach, would you agree with that?

Yeah, absolutely. We we we see that many of them are well infor- many of the people who entered the United States under the prior administration were well informed as to which jurisdictions were sanctuary jurisdictions where they would least likely be arrested uh and and and if they were caught speeding it wouldn't matter because ev- that officer would have no authority over the whole thing.

And it's my it's my belief, my contention, I'd just uh tell me if you agree with me, that this is a systematic plan of the left. open up the border, let in ten million people, that was that was intentional, that was deliberate, we know that, it happened, we all saw it with our own eyes, create sanctuary jurisdictions which makes it difficult to remove those individuals even when they commit another crime. And then they also said, and you know what, we won't pay the guys who do the removing. We won't fund ICE. In fact, they shut down the government twice in one congress for that reason. So I believe it's a systematic plan that the left has. Would you agree with that?

So, last month, the Trump administration was reported to have uh detained the largest number in the administration, and it still hasn't crossed fifty thousand. I don't think the Biden administration ever had a month that got anywhere near fifty thousand only crossing the border,

Right.

uh illegally, and they were welcome to stay because of the catch and release. So this is a one-way ratchet.

Right. Yeah, Attorney General Kobach, you you you agree that this is a planned

It I don't know how systematic it is,

the day next year.

but I agree that many people uh think that lax or no enforcement

Well, what

should be the rule for for political reasons and I think there,

Well, let me ask you this. Let me

uh, well, let me just say one thing. Uh, yeah, I think it was in two thousand six the the late Representative Barney Frank said this in a speech, uh, to a labor organization that that's why we need an amnesty, that's why we need to have less enforcement of our laws, is to change the political composition of the country.

Yeah, let me ask you this. Is is sanctuary jurisdiction maybe one of the dumbest things you've ever I mean, think about it. Sanctuary jurisdiction is the politicians tell local law enforcement don't work with federal law enforcement when it comes to enforcing federal law. I actually think that's one of the dumbest dumbest ideas ever. But that's exactly what's going in almost a third of the country, because these cities are big blue cities, big blue states. It's almost a third of the country lives in a jurisdiction where that and here are the implications here are the not implications the results the consequences. You have people like Stephanie Mentor next door in Fairfax County, where Discano lets out a guy who'd been arrested forty times, illegal migrant, lets email, there's even an email from law enforcement say, this guy's gonna do bad things, and sure enough he did. He killed Stephanie Mentor. That's the consequences. This is the dumbest thing I've ever heard. And yet these guys all defended. They all defended. They'd say, no, no, we gotta do this. Makes no sense to me. Turn to General Kobach. Would you agree that's the dumbest idea ever?

It it is a horrible idea and the having these jurisdictions and, you know, you mentioned one case, but the total number of cases is well over a hundred now of people who have been murdered and were in the possession or or rather were in the custody temporarily

Yes.

of law enforcement in sanctuary jurisdictions and then were let go. And so the the list just keeps on growing and growing. The sanctuary jurisdictions also are in affront to the supremacy clause of the Constitution.

Exactly.

Federal law must be supreme.

No, but Yeah. Finally, I would say this, and you know, we all know here's how we know this is dumb. Because county, we had one yesterday testify. County sheriffs are actually suing their own state. And I asked the sheriff yesterday from Maryland, why are you suing your own state? He said, because I am elected to protect the citizens in my county. And it's not just happened in Maryland. We got sheriffs up in New York are doing the same thing. My guess is in most of these sanctuary jurisdiction, you got law enforcement people who want to do the same thing. Some are already doing it. That's how stupid This policy is, and yet this is a fundamental principle of today's left, which unfortunately now controls the Democrat Party. With that, I yield back.

I thank the chairman, and I'll recognize the ranking member, uh, for her questions.

Thank you, Mister Chairman, I you know, there's just How many times can we say the same thing? The Supreme Court ruled. Um, Professor Weinberg, the witness to your left, Mister Cuccinelli, wrote in his testimony Quote, " Barbara is binding, it will remain binding." He went on to say, " Congress can legislate against conduct it may lawfully reach." And again, what it cannot do is legislate the holding away. Do you agree with Mr. Cuccinelli's statement?

I do.

Love that. Um, you know, yes or no, is Trump versus Barbara the ultimate law of the land?

It is.

And yes or no in Trump versus Barbara did the Supreme Court uphold

It did.

And yes or no, has the Supreme Court ever struck down birthright citizenship?

It has not.

Uh, you know, Mister Chairman, I have a neighbor from Texas and he said that it's a famous saying there, that when the horse is dead, it's time to dismount. Um, I would urge our colleagues on this committee to dismount because this is just, uh, increasingly nuts. Mister Raskin, is there anything you wanted to say?

Uh, thank you, uh, Miss Gamelin. Um, I was looking forward to the comments of uh of uh our distinguished chairman uh, Mister Jordan, because the author of the first sentence of uh section one of the fourteenth amendment is his uh predecessor in the Ohio congressional delegation, John Bingham, and I thought he would say some words about the brilliance of Mister Bingham for adding birthright citizenship permanently to our constitution, but instead we retreated to another uh discursion uh on the um uh the evils of the sanctuary jurisdictions, I think that would make our six and a half hearing on that, but I'm still puzzled as to why after passing the legislation supposedly addressing the evils of the sanctuary jurisdiction, it hasn't come to the floor yet, so I'm still waiting for an answer on that, but in in passing,

It's a lot.

Chairman Jordan also said um uh who doesn't wanna come to America? Well, I'll tell you who doesn't wanna come to America right now, Canadians don't wanna come to America, They're boycotting America because of Donald Trump's moronic, imbecilic trade war and his consistent attacks on the people of Canada, his threat to turn Canada into a fifty-first state. And if you bother to talk to anybody who lives in the northern tier of the country, the boundary waters of Minnesota or the upper peninsula of Michigan or the Adirondacks in uh New York, the small businesses are being killed by Donald Trump's ignorant trade war and illegal tariffs against the people of Canada. So yeah, it's we're not so popular anymore. I get lobbied all the time by people from the hotel industry, the hospitality industry, the tourism industry, saying Donald Trump and MAGA are killing us in the eyes of the world. People don't want to come visit us anymore. I'm certain that the general lady from Vermont uh would concur with this, but I want to come back, Miss Galen, to a question for you, which is it seems to me there's a lot of misogyny in these uh, policies being advanced by the Republicans. For some women, they wanna deny them the right to an abortion in Texas, and for other women they wanna deny them the right to have babies in Texas. How about we allow women to make decisions about their own bodies?

Sounds like a novel idea to me. I m- I mean, I do wanna come back to the problem of bigotry in this birthright citizenship discussion. I mean, just in December of this past year, the president was in Pennsylvania and he was talking about the African and the Middle Eastern and the um southern hemisphere countries that he's banned travel from, nineteen different countries because he's called them hellhole and other descriptive adjectives. But he invited people from Norway, Sweden and Denmark to send immigrants. I mean, this underlying threat of bigotry that is just infusing the Um, immigration enforcement we're seeing, the racial profiling we're seeing from ICE operatives across the country, um, these efforts to end birthright citizenship, I think it's all, uh, immoral and un-American and needs to be called out for what it is. Uh, with that, I think we've spent more than enough time on this subject for more than enough hearings, so I will yield back.

I think the re- member will now recognize the gentleman from Wisconsin, Mister Grothman.

First of all, I'd like to thank mister Kolbach for being here. For years I've read Ann Coulter columns in which she refers to glowingly, and I've never had a chance to meet you. So that's gonna be a cool thing. Uh, the next thing I wanna point out, I wanna wanna clear up something a little earlier. Uh, John Adams, after our our constitution was ratified, uh, he referred to our country as a republic, if you can keep it. And the Pledge of Allegiance, they also referred to her as a republic. And I think just about every homeschooler, in the sixth congressional district in Wisconsin would refer refer to our former government as a republic. Uh, I had to check what occupation the gentleman at the end here, uh, had, that he got his age but he thought we had a democracy. And of course he's a law professor, w- w- would say that, but, uh, in any event, just for anybody listening, there, our constitution primarily restricts what government can do, right? They can't prevent you from practicing a religion, they can't shut down a newspaper, they can't take your property without just compensation. A variety of things, which makes us a republic, not a democracy, because a democracy, a representative democracy, if you had a majority of people, a majority of congressmen saying we wanna shut down this religion, or we wanna do this or that, they would get away with it, cuz it's a democracy. I always think the d- I always think it's interesting that countries like East Germany or the Congo or North Korea all have democracy in their name and I think that's because they would probably say well we had a phony election here and the majority of people uh you know voted for us so we're a we're a democracy and we're wonderful uh but we we have a republic here which is gonna restrict the out of control uh people now mister uh kobach uh or kobach um Does d in in light of that decision, does Congress have a role in defining who is a US citizen?

Absolutely. Um, Congress retains its power under article one to provide for the rules of naturalization in the United States. And Congress absolutely retains its authority over immigration. And, you know, it's important to recognize something I I said earlier, and I wanna reiterate it now. All the Supreme Court did was say that this broad executive order, which was pretty sweeping. This one is unconstitutional, but there are lots of things that Congress can do that are not as broad, that can continue to press some of the same constitutional questions that may be seen as constitutional with under the existing Supreme Court. And sh- and I would also add that it's everybody agrees at this table, and presumably in this room, that the citizenship clause of the fourteenth amendment was meant to overturn reverse Dred Scott and to ensure the citizenship of the newly freed slaves. But there wa- and there was abundant discussion about that in Congress when, when the drafting occurred. But there was no discussion of an effort to put shackles on Congress in its ability to regulate immigration and to regulate naturalization. And so the notion that this massive block was placed in front of Congress forever or until the, it was amended again is, is, is nonsensical because there's no congressional indication of that that that was the intent and all of the congressional int- intent including uh from the great Representative Bingham, uh suggested that they were saying individuals have to have their parents have to have no allegiance to any foreign power in order for the children to be US citizens. That was what Congress was saying over and over again.

Are are you aware of any other countries that have uh laws as liberal as the majority of the court on that day seem to feel?

Uh uh it Canada is is similar, but beyond that uh this you know, puts us as an outlier in the world the vast majority of the world looks at the citizenship of the parentage and then has various rules for determining whether you were a citizen and and and by the way people who are uh who come into the United States illegally or temporarily and then have a child, that child has citizenship in the country where the parents came from. So this notion that people are displaced and left without citizenship or a country uh is nonsense.

Okay, so for example, if somebody comes here from France, uh it you france would not say and it has a child france would not say that child is not french

correct indeed they would insist that the child is french

france right and just about every other country in the world would think that way

yeah

ok um it could you be just what the first laws you'd introduce if you were in congress to try to bring things back to the international norm

um well i i did mention this earlier i i think a a a statute along the lines of President Trump's executive order dealing with birth tourism would be one that would almost certainly get the vote of uh Justice Kavanaugh and I think it would also uh gain the vote of pro- either the Chief Justice or or or possibly uh Justice Comey-Barrett a narrower one looking at this. Because again, the historical record of Congress and the executive branch for forty years after the fourteenth amendment was passed was that they clearly thought that people who came to the United States and then had a child immediately, that child did not gain the benefit of birthright citizenship.

Thank you. Um, I I'll I'll also follow up. I haven't read it myself, but I'm told that American troops during World War Two were always given an explanation of how we are a republic and and what that means. So And we've slid since then. I

I thank I thank the gentlemen from Wisconsin. Uh, I want to thank the witnesses, each and every one of you, for uh being here today. Uh, without objection, all members will have five legislative days to submit additional written questions for the witnesses or additional materials for the record and, without objection, this hearing is adjourned.