Ohio AG questions birthright citizenship. His argument is ‘just silly,’ immigration lawyer says
It had been considered settled law: If a person is born in Ohio or anywhere else in the United States to anybody other than a foreign diplomat or a member of an invading army, that baby is a U.S. citizen. Period.
But now Ohio Attorney General Dave Yost and some other Republican attorneys general are in court defending President Donald Trump’s executive order claiming that “birthright citizenship” doesn’t extend to children of the undocumented.
Trump also claims the power to unilaterally deny citizenship to babies of those with “lawful but temporary” presence in the United States.
The arguments made by Trump, Yost, and the other attorneys general are “just silly,” a Cleveland immigration attorney said. And she added that they further endanger some of the most vulnerable.
Trump issued the executive order on his first day in office. It claims that the 14th Amendment of the United States Constitution doesn’t guarantee citizenship to babies born to undocumented immigrants or those with temporary status, such as holders of student or visitors’ visas.
The order directed federal agencies to stop issuing citizenship documents to those babies. The courts blocked enforcement of the order a few weeks later. Trump is appealing the matter to the U.S. Supreme Court.
On March 20, Yost took to X to defend the president’s stance.
“Birthright citizenship in the United States is limited by the Constitution to those persons who are ‘subject to the jurisdiction thereof,’” he wrote. “Those words must mean something, and they mean *at least* this: it doesn’t include those who are here illegally.”
Unsettling
Yost is running in the 2026 governor’s race, and he’s shown sympathy with some of Trump’s extreme statements about immigrants as he has.
Trump and now-Vice President J.D. Vance last summer repeated the lie that Haitian immigrants in Springfield were stealing neighbors’ pets and eating them. That prompted dozens of bomb threats to elementary schools and other public buildings in the small Ohio city, which Vance was then representing in the U.S. Senate.
Yost, Ohio’s top law-enforcement officer, piled on, criticizing the news media for taking the word of the Springfield police chief over rumors as they assessed whether the racist claims were true.
Now Yost is backing Trump’s claims about birthright citizenship.
The right is embedded in the 14th Amendment, which was ratified 1868 in the wake of the Civil War. Its main purpose was to safeguard the rights of newly freed slaves and repudiate the 1857 Supreme Court decision Dred Scott v Sandford.
That decision held that slaves and former slaves were not citizens and therefore could not sue in the federal courts. It is widely regarded as one of the worst Supreme Court decisions ever rendered — largely because it was rooted in racist dogma.
Blacks “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit,” Chief Justice Roger Taney wrote in the decision.
The ruling was a key factor in provoking a civil war that killed more than 35,000 Ohioans. After it was over, the Constitution was amended to expand citizenship rights and ensure that the forces of racism could not trample them.
“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,” the first section of the amendment says. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
“Some dumb campaign promise”
A century-and-a-half later, Trump is trying to narrow the application of those rights by presidential decree.
Yost and 16 other Republican attorneys general signed on with Iowa AG Brenna Bird in a friend-of-the-court brief supporting Trump’s executive order. While the 14th Amendment was intended to expand citizenship rights, the brief seeks to limit them.
“This case is not about whether birthright citizenship is guaranteed under our Constitution,” the brief says. “It is. Instead, the proper framing of this case asks where the limits of birthright citizenship end.”
Regardless of the merits of that claim, the brief ignores an even more fundamental issue — whether the president has the power to unilaterally declare the courts’ long-running interpretation of the U.S. Constitution null and void, said Heather Prendergast, a Cleveland immigration attorney.
“The whole thing seems so silly to me,” she said. “It’s a joke. (Trump) made some dumb campaign promise that he really doesn’t have the authority to produce. Then he says on day one, ‘Here’s an executive order doing something I can’t do, but I’ve convinced myself is possible.’”
She added, “This is not something the president has the authority to do via executive order. Our government has three branches. If they wanted to change the rules regarding birthright citizenship, it would require an act of Congress, a constitutional amendment. The president doesn’t make the laws. He executes the laws. He doesn’t just get to say, ‘Today this is how we’re going to interpret birthright citizenship.’”
In a January interview with Harvard Law Today, law school Professor Gerald Newman said much the same thing.
“The president of the United States has no authority to change citizenship rules at all,” he said.
Who is subject?
Yost’s office didn’t respond to a series of questions for this story other than to refer to the friend-of-the-court brief.
In it, Yost and his colleagues don’t address one extreme aspect of Trump’s executive order — that the children of people legally here on temporary visas aren’t automatically citizens under the 14th Amendment.
They instead argue that those rights don’t extend to the children of undocumented immigrants. To support this argument, they claim that undocumented immigrants are not “subject to the jurisdiction” of the United States as required by the 14th Amendment.
“The Constitution never required every person who happened to be born on United States soil to be a citizen,” the Republican AGs’ brief says. “Nor is that the original meaning of the Fourteenth Amendment’s ‘subject to the jurisdiction thereof.’”
Never mind that in 1868 the United States had open borders, so the concept of being undocumented would have been alien to those who wrote and ratified the 14th Amendment.
Writing in January, Alex Nowrasteh of the libertarian Cato Institute said arguments such as the one in the AGs’ brief misstate what the 14th Amendment says. The concept of birthright citizenship predates it in U.S. jurisprudence, and even goes back to 17th century English common law, he said.
Nowrasteh quoted U.S. Sen. Jacob Howard of Michigan who introduced the 14th Amendment. In a statement defending it, Howard said birthright citizenship extended to everybody, but “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers” who have diplomatic immunity.
Trump and his supporters might try to torture that sentence into meaning undocumented immigrants and the babies of foreign diplomats are not entitled to birthright citizenship. But Nowrasteh said that goes against what Howard was plainly saying.
“Howard was describing the families of ambassadors as being foreigners and aliens,” Nowrasteh wrote.
Case in point
Even after Congress began restricting who could become a citizen merely by coming here, the Supreme Court ruled that being born in the United States made one a citizen with two exceptions — being born to a foreign diplomat or to a member of an invading force.
The Chinese Exclusion Act of 1882 placed a 10-year ban on Chinese immigration and prohibited Chinese who had already entered from getting citizenship. The legislation is considered highly racist because it singles out one ethnicity and it arose out of concern over the ethnic composition of the United States. Trump’s attempted Muslim bans have faced similar criticism.
Despite the Chinese Exclusion Act, the Supreme Court in 1898 ruled in U.S. v Wong Kim Ark that children born on U.S. soil to non-diplomat Chinese parents are citizens.
As a young man in 1895, Wong Kim Ark visited China and was denied reentry to the United States. He took the matter to court and three years later, the justices ruled 6-2 that the 14th Amendment made him a citizen.
“The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States,” Justice Horace Gray wrote for the majority. “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”
In their brief, Yost and his colleagues claim that immigration laws passed after the 14th Amendment was ratified limit its scope.
“… Wong Kim Ark repeatedly emphasized that its facts involved lawful, permanent United States residents... ” the brief says. “Even its holding stressed the importance of lawful residence: ‘so long as they are permitted by the United States to reside here’… Wong Kim Ark did not address children born to illegal immigrants or birth tourists.”
However, that statement seems to ignore the plain language of the Supreme Court ruling — that Congress can’t pass laws that shrink the rights provided by the 14th Amendment.
“The acts of Congress known as the Chinese Exclusion Acts, the earliest of which was passed some fourteen years after the adoption of the Constitutional Amendment, cannot control its meaning or impair its effect, but must be construed and executed in subordination to its provisions,” it said.
In other words, statutes passed by Congress can’t trump the Constitution.
“The 1898 Supreme Court decision of United States v. Wong Kim Ark established that the US-born children of immigrants were and remained citizens even if there were changes in law that would not have allowed them or their parents to legally immigrate here or naturalize,” wrote Nowrasteh of the Cato Institute.
Shaky justification
Prendergast, the Cleveland immigration lawyer, also questioned a key justification Yost and the Republican AGs gave in their attempt to limit birthright citizenship.
The brief said it was important to remove incentives for undocumented people to come to the United States with the sole purpose of having citizen children. That implies that having citizen babies would make it easier for their parents to stay. And that ignores that it’s much, much harder than most people think for undocumented parents to get permanent residency, Prendergast said.
“They act like somehow, birthright citizenship is a real draw; that people can come over here, have babies and somehow the babies themselves are going to acquire legal status for them,” Predergast said. “But a child can’t petition for their parents (to have permanent-resident status) until they’re 21 years old.”
She added that if the parents are in the United States without documents, they’re subject to more requirements when the child finally turns 21. In the vast majority of cases, they have to return to their home countries, go to a consulate, apply, and then wait 10 years.
“It’s a complicated process,” Predergast said.
The brief onto which Yost signed also echoes Trump’s claim that crossings at the southern border amount to an “invasion.” Despite their claims, Trump, Yost and Texas Gov. Greg Abbott have never shown that the typically peaceful southern border has been crossed in recent decades by hostile tanks or helicopters as part of a coordinated military force.
Yost’s office didn’t respond when asked if he was worried that such inflammatory rhetoric would result in another racist massacre like the one that happened in 2019. Spun up on racist rhetoric, 21-year-old Patrick Crusius, drove 600 miles from the Dallas area to an El Paso Walmart and started shooting every Hispanic-looking person he saw. In a manifesto he posted just before he murdered 23 and wounded 22, he wrote, “This attack is a response to the Hispanic invasion of Texas.”
Prendergast said the friend-of-the-court brief the Ohio attorney general joined isn’t a serious legal effort — it’s just more toxic politics.
“I don’t think most people take it seriously,” she said. “It’s a chaos agent, meant to create fear and division.”