America First Legal (AFL), in partnership with Boyden Gray LLC, has filed a high-stakes amicus brief with the U.S. Supreme Court, seeking to redefine and restrict the scope of the Citizenship Clause of the Fourteenth Amendment.
The brief, filed on behalf of eighteen Republican members of the House Judiciary Committee, led by Chairman Jim Jordan, argues that U.S. citizenship should be granted only to those who demonstrate total, exclusive allegiance and lawful presence, not merely those born within the country’s physical borders.
The Allegiance and Jurisdiction Argument
The core of AFL’s argument rests on the principle of reciprocal allegiance, asserting that citizenship is a bond requiring loyalty from the individual and consent from the sovereign (the United States).
The brief contends that the Fourteenth Amendment’s clause—granting citizenship to those “born or naturalized in the United States and subject to its jurisdiction”—requires more than just being physically present. It maintains that “subject to its jurisdiction” means owing “total, exclusive allegiance,” thereby excluding children born in the U.S. to parents who are unlawfully present.
“Citizenship is not automatic, nor is it a right: it is earned through allegiance, consent, and law,” the brief states, echoing a long-held view among some constitutional scholars that the clause was not intended to include “aliens or anyone owing allegiance to a foreign sovereignty.”
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Rejecting ‘Birthright’ for Children of Undocumented Aliens
AFL uses the established examples of children born to foreign ambassadors or invading soldiers—who are not automatically granted U.S. citizenship—to illustrate its point. The brief argues this exclusion is not due to parental immunity, but because the parents owe allegiance elsewhere.
This same principle, AFL asserts, must apply to children born to aliens unlawfully present in the country, as their parents are here without the consent of the United States and owe allegiance to another nation.
“Citizenship cannot be born of defiance, and allegiance cannot exist without consent,” emphasized Dan Epstein, Vice President of America First Legal. “U.S. citizenship is a privilege, not a right, and the touchstone is total allegiance to the United States, not mere location or subjection to its laws.”
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Congress’s Sole Authority to Confer Citizenship
Furthermore, the brief highlights that only Congress holds the power to confer citizenship. Citing Supreme Court precedent, AFL argues that neither courts nor the executive branch can invent citizenship outside the scope set by law.
The brief concludes that since the Fourteenth Amendment, as interpreted by AFL and its congressional allies, does not confer citizenship on the children of illegal aliens, and since Congress has not granted it by statute, then it may not be conferred upon them, regardless of their birthplace.
America First Legal, representing its allies in the House Judiciary Committee, is urging the Supreme Court to use this case to restore the “true meaning” of the Citizenship Clause and reaffirm that U.S. citizenship “is a duty, a bond, and a privilege reserved for those who are subject to our laws and our sovereignty.” The outcome of the case could have profound implications for immigration and constitutional law across the nation.
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