Thomas H. Lee, Fordham University School of Law, has posted The Citizenship Clause's Residence Requirement:
The debate about President Trump’s January 20, 2025 Executive Order denying automatic American citizenship to children born in the United States to unlawfully or temporarily present foreign parents is divided into two polar-opposite camps asserting that it’s wholly constitutional or wholly unconstitutional. In a new academic paper, I make the case that the 1868 original meaning of the Fourteenth Amendment's Citizenship Clause supports a middle position: a child born in the United States to alien parents is automatically a citizen if the parents reside in the United States even if they entered unlawfully, but the child is not a citizen if the alien parents are in the United States as temporary sojourners, like tourists. This original, revisionist interpretation of the Citizenship Clause is faithful to the Clause’s text and original meaning and also consistent with the Constitution’s other citizenship-related provisions, relevant Supreme Court decisions, and the larger, evolving context of domestic and international citizenship controversies the Clause was ratified to address, while recovering an original meaning that sensibly speaks to modern realities.
--Dan Ernst
