Plus, a question about the different responses to Daniel Penny and the healthcare CEO shooter.
I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”
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Today's read: 14 minutes.
Tomorrow.
Every now and again, a story punctures the news cycle in a way that feels culturally important. This week, that story was the murder of UnitedHealthcare CEO Brian Thompson. We received a deluge of reader feedback, criticism, and questions about our coverage of his murder and what we can learn about the U.S. from the story. Tomorrow, we’re going to address those responses with a reader feedback edition. Stay tuned.
Quick hits.
- The Federal Bureau of Investigation announced its director, Christopher Wray, would resign at the end of the Biden administration. Wray had three years remaining in his appointed ten-year term as director, but President-elect Donald Trump recently stated his intention to seek Wray’s resignation or fire him. Trump will nominate former federal prosecutor Kash Patel to lead the agency. (The announcement)
- Hamas has reportedly agreed to two Israeli demands as part of a proposed ceasefire deal in Gaza:, allowing Israeli forces to remain in Gaza temporarily when the fighting stops and sharing a full list of hostages it would release. The concessions raise the prospect of a ceasefire or truce after months of stalled talks. (The report)
- Grocery companies Kroger and Albertsons ended their planned $24.6 billion merger, which would have made it the largest in U.S. supermarket history, after two judges halted the deal earlier this week. Albertsons said it had filed a lawsuit against Kroger for allegedly failing to fulfill its obligations. (The breakup)
- President Joe Biden commuted the sentences of approximately 1,500 people and pardoned 39 others, all of whom were convicted of nonviolent crimes. The White House said the actions represent the largest single-day act of clemency in modern history. (The announcement)
- A U.S. bankruptcy judge halted the satirical news site The Onion from purchasing Alex Jones's Infowars website as part of Jones’s bankruptcy proceedings, ruling that the auction to sell the site was marred by procedural errors. (The decision)
Today's topic.
Trump’s birthright citizenship comments. On Sunday, President-elect Donald Trump gave his first network television interview since the election, speaking with NBC's Kristen Welker for Meet The Press. During the interview, Trump said he would seek to end birthright citizenship, possibly through executive action, calling the practice “ridiculous” and saying the U.S. is the only country that grants the right. Legal experts doubt that the president has the power to curtail birthright citizenship, but Trump’s transition team has indicated it will attempt to do so as one of his first executive actions when he returns to office.
Refresher: In the United States, birthright citizenship takes two forms. Jus sanguinis, or ancestry-based citizenship, means that a child born outside of the U.S. to at least one citizen parent is entitled to U.S. citizenship under certain conditions. Jus soli, or birthplace-based citizenship, grants automatic citizenship to everyone born in the U.S. The Citizenship Clause of the Fourteenth Amendment guarantees citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof,” and the Supreme Court affirmed the constitutionality of jus soli citizenship in its 1898 decision in United States v. Wong Kim Ark.
During Trump’s first term, he stated he would sign an executive order removing birthright citizenship but ultimately did not do so. However, he raised the prospect again during his 2024 presidential campaign, vowing to take executive action on his first day in office to restrict citizenship to those with at least one citizen or lawful permanent resident parent.
Many Constitutional scholars have argued that any executive action targeting birthright citizenship would be struck down by the courts, citing the precedent established in Wong Kim Ark. In his interview with Welker, Trump suggested that he could take the issue “back to the people” if executive action failed, suggesting passing a Constitutional amendment. Doing so would require two-thirds approval from the House and Senate, as well as ratification by three-fourths of state legislatures (or three-fourths of conventions called in each state).
However, Trump’s transition team has contended that the language of the 14th Amendment does not guarantee citizenship for children born in the U.S. to non-citizens, arguing that unauthorized migrants are not “subject to the jurisdiction” of the United States as stipulated by the Citizenship Clause. In response, opponents say the Supreme Court’s Wong Kim Ark decision makes clear that the only groups not subject to U.S. jurisdiction (and thus excluded from birthright citizenship) are people who cannot be prosecuted in the U.S., such as ambassadors and foreign ministers.
Today, we’ll explore arguments about Trump’s proposal to end birthright citizenship, with perspectives from the right and left, followed by my take.
What the right is saying.
- The right is mixed on the proposal, but many argue that Trump has a credible legal case to curtail birthright citizenship.
- Some say ending birthright citizenship is key to Trump’s immigration agenda.
- Others say Trump’s plan is ill-advised.
In The Daily Signal, Amy Swearer said “Trump can end universal birthright citizenship. The Constitution never required it.”
“It’s true that, in an 1898 case, United States v. Wong Kim Ark, the Supreme Court held that the U.S.-born child of Chinese immigrants who were lawfully present and permanently domiciled in the United States was a U.S. citizen under the 14th Amendment,” Swearer wrote. “But the holding in Wong Kim Ark only deviates from the original meaning of the 14th Amendment if one chooses to read it under the assumption that the Supreme Court intended to upend decades of precedent and supersede Congress’ clear intent. That assumption is unnecessary, illogical, and dangerous.
“At its core, Wong Kim Ark was about the government’s attempt to circumvent the 14th Amendment and keep Chinese immigrants and their children from ever becoming citizens, by any means,” Swearer said. “This type of race-based discrimination in citizenship was precisely what the 14th Amendment was intended to prohibit, and the Supreme Court rightly recognized the system for the unconstitutional travesty it truly was. While the opinion can also be read as affirmatively adopting jus soli and universal birthright citizenship as the ‘law of the land,’ it can just as easily be read as adopting only a flexible, ‘Americanized’ jus soli limited to the factors of lawful presence and permanent domicile.”
In The New York Post, Daniel McCarthy argued Trump’s proposal could help “stem [the] border crisis.”
“‘Birthright citizenship’ may sound benign, but thanks to an overreaching Supreme Court decision 126 years ago, it’s the biggest legal hole in our border. President-elect Donald Trump has the opportunity to seal it, but it won’t be easy,” McCarthy wrote. “When the Supreme Court handed down its United States v. Wong Kim Ark decision in 1898, illegal immigration was nothing like the crisis it is now. And the subject of that case, Wong Kim Ark, was the son of legal immigrants — permanent residents, in fact. But in the 21st century, liberal legal experts insist the court’s ruling now means any child born on American soil is automatically a citizen.”
“The dangers of birthright citizenship are about more than just illegal immigration: Holders of valid tourist visas, who don’t have any intention of becoming Americans, can arrive pregnant and depart with a newly minted US citizen added to the family. It’s a threat to national security and sovereignty itself,” McCarthy said. “Trump is trying to restore us to the understanding of citizenship held by the framers of the amendment that guaranteed equal protection for all Americans… It’s a battle Trump must fight — all the way to the Supreme Court.”
In The Wall Street Journal, Jason L. Riley criticized “Trump’s misguided attack on birthright citizenship.”
“In an interview with NBC News that aired Sunday, Donald Trump said he wanted to work with Democrats in Congress to ‘do something’ about the legal limbo of so-called Dreamers, the name given to undocumented immigrants who were brought to the U.S. as children and have lived most of their lives here,” Riley wrote. “Like many supporters of the Dreamers, Mr. Trump believes that it would be unjust to make children pay for the illegal acts of their parents… In the same NBC News interview, Mr. Trump vowed to ban birthright citizenship by executive order on his first day back in office.”
“Mr. Trump campaigned successfully on a promise to reduce the size of the country’s illegal population, and prioritizing the removal of foreign nationals with criminal histories is popular and makes sense. But ending birthright citizenship would almost certainly be at cross-purposes with his larger goal. Children who automatically become citizens would be counted going forward as illegal, like their parents, and the size of the illegal population would swell by the millions,” Riley said. “There’s also a moral case for leaving birthright citizenship in place, including for the offspring of undocumented parents, and it’s similar to the case that Mr. Trump has made for accommodating the Dreamers. Why punish children for the sins of their parents?”
What the left is saying.
- The left opposes Trump’s plan and doesn’t think it will survive in court.
- Some say the effort underscores Trump’s authoritarian impulses.
- Others say Trump may be foreshadowing other moves to reduce legal immigration.
In The Boston Globe, Jeff Jacoby wrote “birthright citizenship is a constitutional right that Trump can’t revoke.”
“Birthright citizenship isn’t a privilege that presidents can bestow or withdraw at will. It is a constitutional mandate, enshrined in the 14th Amendment,” Jacoby said. “The meaning of that constitutional language has never been in doubt. Though the amendment’s Citizenship Clause was drafted specifically to nullify the Supreme Court’s execrable Dred Scott decision, which denied birthright citizenship to anyone of Black African descent, its intended scope was considerably broader.”
“If Trump or Republican nativists in Congress want to change generations of settled law and withhold citizenship from children born to migrants who entered the country without authorization, their sole option is to amend the Constitution,” Jacoby wrote. “It is one of the finest aspects of American exceptionalism that American citizenship is extended to all who enter the world within America’s borders. Thanks to the 14th Amendment, their rights do not depend on the color of their skin, the blood in their veins, the religion of their forbears, or the immigration status of their parents. The Constitution says that every baby born here is the equal of every other.”
In The Hill, Max Burns called Trump’s plan “Authoritarianism 101.”
“America’s legal institutions may not be as strong a bulwark against the MAGA movement’s xenophobia as institutionalists think,” Burns said. “Democrats’ high-minded plan to wave the Constitution in Trump’s face isn’t going to win many arguments in a government that openly idolizes the muscular use of executive power. At any rate, some of the MAGA movement’s most loyal lawmakers are already hard at work undermining the clear meaning of clauses like the 14th Amendment’s grant of birthright citizenship to all people born within the country.”
“Sen. Mike Lee (R-Utah) offered the opening salvo in the right’s war on citizenship rights… He argues that the Amendment’s first sentence — ‘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’ — empowers lawmakers to determine who is a citizen. That reading is exactly backward in every possible way,” Burns wrote. “Lee needs to make these big theoretical jumps because otherwise Republicans would need to amend the Constitution in order to remove birthright citizenship, something even they acknowledge is politically impossible.”
In New York Magazine, Ed Kilgore said “Trump’s birthright-citizenship threat shows his true target.”
“Reducing all forms of immigration has been an abiding goal of Stephen Miller, Trump’s longtime immigration adviser and future White House deputy chief of staff for policy… So it was always safe to assume that a second Trump administration would attempt to reduce various forms of legal immigration,” Kilgore wrote. “But now Trump himself has pledged to do something far more sweeping on his first day in office: issue an executive order eliminating birthright citizenship… This would presumably expose millions to deportation from the land where they were born.”
“Raising the question of birthright citizenship right off the bat could benefit Trump strategically in two ways. First, challenging this right might make it more politically palatable to separate the estimated 4.3 million U.S. citizens whose parents are undocumented from their soon-to-be-deported family members,” Kilgore said. “Second, Trump and Miller may simply want to begin their nativist crusade with the most expansive and audacious proposals in their arsenal. Perhaps they believe that once eliminating birthright citizenship is on the table, their more legally defensible plans will seem less draconian.”
My take.
Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.
- I don’t think Trump has any legal basis as president to challenge birthright citizenship.
- However, theoretical questions about how we determine citizenship are worth engaging.
- Ultimately, I think the right’s arguments against birthright citizenship for the children of unauthorized migrants fall short.
I want to start with two simple but important points before I get into what I think is the most interesting part of this story:
1) I'm extremely skeptical Trump can change birthright citizenship or related precedent in the U.S. If he goes the executive-order route, he’ll need some very friendly help from the Supreme Court (and the courts under them). He could try passing a narrow piece of legislation that invites the kind of 14th Amendment challenge he wants to take to the Supreme Court, but that also seems like a losing venture. I’m not even sure he could get such legislation passed. Otherwise, he’ll need a constitutional amendment, which obviously isn't happening.
2) It is not true that other countries don't have birthright citizenship laws. Over 30 do, including both of the countries we border (Canada and Mexico). These laws can differ by country, and it’s true that some, like the United Kingdom, have indeed abandoned them. However, it’s untrue that the U.S. is unique in birthright citizenship, as Trump has repeatedly claimed.
Instead, what I found interesting was that most of the left’s analysis of that debate simply avoided the right’s main points. Instead of engaging in good faith legal or historical arguments, many are just pointing to ghoulish past comments from people in Trump’s orbit and proclaiming this plan a monument to xenophobia.
So, absent this discussion from the left, I’d like to engage in the arguments from the right. First of all, the 14th Amendment has been interpreted in a very specific way for a very long time, and since legal precedent undergirds our current system, it is not at all likely to be overturned in court. But the language in the amendment itself is not at all crystal clear, and its historical context obscures its meaning further.
I think Amy Swearer in The Daily Signal advanced the best argument that this language could have been misinterpreted for the last many years. Swearer starts by hingeing the question of birthright citizenship on the phrase "subject to the jurisdiction thereof.” Are people here illegally subject to the jurisdiction of the U.S.?
By our current understanding, the answer is yes: They must abide by our laws and we can put them in prison if they don't, or deport them if they are detained. On the other hand, there’s a way to interpret “jurisdiction” differently: Unauthorized migrants can't vote, don't have access to certain rights, and are not recognized in many legal contexts — that could easily mean that they are not subject to the jurisdiction of the U.S., but to the country from which they came.
To me, this is the crux of Swearer's argument:
"Sen. Lyman Trumbull, R-Ill., a key figure in the adoption of the 14th Amendment, said that 'subject to the jurisdiction' meant not owing allegiance to any other country. It seems obvious that a child born to Mexican citizens illegally in the U.S. is a citizen of Mexico, owes his political allegiance to Mexico, and does not meet this jurisdictional requirement in the amendment."
Swearer makes the case that the people who wrote the 14th Amendment intended birthright citizenship to apply to people under the “complete political jurisdiction of the United States… not owing allegiance to any other country.” She further argues that it’s “obvious” a child of Mexican citizens illegally in the U.S. does not meet this burden.
There are some serious holes there — dual citizens are still under U.S. jurisdiction while owing another country allegiance, and Trumbull’s was not the only opinion that mattered. Even so, I actually don't think Swearer’s contention is obvious at all.
Take a personal example: As longtime readers know, I own property in West Texas and have spent my summers or winters along the U.S.-Mexico border every year since I was 13. Over the years, I’ve met several Mexicans who are living here illegally and have been for decades — some since childhood. Having come to know these people, I can assure you their "political allegiance" is not to Mexico, but to the U.S. This is representative of broader trends: Many feel foreign in their country of origin, and despite their illegal status here, consider the U.S. their home.
And remember, it's their children we are talking about, who would be even more Americanized and have stronger allegiances to the U.S. than they do. In some cases these Mexicans already have kids in their teens who know nothing of life in Mexico, and don't even speak the language. Is it obvious that these people have “less” allegiance to America than, say, a person like Sen. Ted Cruz (R-TX) — born in Calgary, Canada, to a Cuban father with no U.S. citizenship and an American mother? To me, it’s not obvious at all — yet ancestry citizenship makes Cruz an American while Swearer thinks birthright citizenship shouldn’t extend the same right to a hypothetical child of two Mexicans.
Of course, Trump has floated some kind of exception for people brought to the U.S. as children, but this just illustrates how the line Swearer is drawing (and defining political allegiance or jurisdiction) is really not all that clear.
Swearer, like every writer I found making the case Trump has a path to undo birthright citizenship, also makes the point that we draw the line somewhere. Even conservatives who disagree with her, like Jason L. Riley in The Wall Street Journal (under “What the right is saying”), point to the words of Walter Dellinger, a former head of the White House Office of Legal Counsel, who has said the framers believed “every child born within the territory of alien parents was a natural-born subject, with the exception of children born of foreign ambassadors, of alien enemies during hostile occupation, and of aliens on a foreign vessel.”
In other words: By the definition we use today, there are already exceptions to the “rule” that every person born within the U.S. is granted citizenship. Which makes sense. If a Russian ambassador in the U.S. for a month of work gave birth here, we would not consider her child a U.S. citizen. The same is true for the children of an invading army.
So we clearly draw some lines, and the people backing Trump are just arguing that, court precedent aside, people here illegally should be on the other side of these lines.
In a vacuum, I think this is an interesting debate. But we don’t live in a vacuum. Instead, we have over a hundred years of precedent behind the interpretation of the 14th Amendment, starting with United States v. Wong Kim Ark, and Swearer’s opinion appears to be in the minority amongst legal professionals. Even stalwart conservative judges appointed by Donald Trump, like Judge James C. Ho of the Fifth U.S. Circuit Court of Appeals, have written that birthright citizenship "is protected no less for children of undocumented persons than for descendants of Mayflower passengers."
So, while the thought experiment is interesting and engaging, I just don't see a world where Trump has a path to any major changes, and I don’t think he’d be on the right side of this argument even without the legal winds blowing against him.
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Your questions, answered.
Q: Can you explore the juxtaposition of the UHC CEO assassination VS the ex-marine who killed the man on the subway? Why is one man celebrated, and the other vilified? And this goes both ways, it seems that one group of people celebrates one, and hates the other, and another group of people just the opposite.
— Jack from St. Louis, MO
Tangle: We received some version of this question a lot this week, and frankly I think these two stories provide a perfect example of how our environment of hyperpartisanship seems to always force people to an extreme: If I strongly believe something, then anyone who disagrees with that thing must be my enemy. And then if I strongly disagree with something, anyone that fights against that thing must be on my side.
When you think like that, it’s easy to see disagreements as fights and people who disagree with you as enemies, and when you’re fighting an enemy there are no half measures. So, it isn’t enough to dislike or disagree with Biden or Trump — you’ve got to lock them up. It isn’t enough to criticize Israel — you have to align with Hamas. It isn’t enough to say that some people struggling with homelessness or addiction are threats, but that they’re literally enemies. It isn’t enough to say that our healthcare system needs to be seriously reformed, but that those who lead a health insurer are literally enemies.
This hyperpartisan framework flattens the world into comic-book narratives of good versus evil, and the right side versus the wrong side.
And I can hear the responses now: Those are false equivalencies. My thing — whichever one it is — is different (“Daniel Penny was protecting people while the CEO shooter was a vigilante,” or, “The healthcare system is way more deadly than mentally ill people on trains”). But the question isn’t about which of those things is worse — it’s about why people are so forgiving of one and not the other.
Think about yourself, here: Were you more forgiving of Penny or the CEO shooter than the other? When you first learned about either of these stories, did you see one side as the right side and one side as wrong? Think about how that changes the way you interpret things; it is really really hard to deprogram that way of thinking.
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Under the radar.
The price of coffee beans has surged in 2024, with arabica coffee beans, the most popular beans in the world, reaching a 47-year price high this week. While adverse weather conditions in southeast Asia are partially responsible for rising costs, consumer preferences and farmer livelihoods are also factors. According to Will Corby, director of coffee and social impact at supplier Pact Coffee, suggested the higher prices are a natural response to conditions in the coffee trade. “Huge coffee companies might say that these market highs are bad news, but, in reality, farmers are finally being paid enough to live on,” Corby said. The Independent has the story.
Numbers.
- 275,000. The approximate number of babies born to unauthorized migrant parents in 2014, according to Pew Research.
- 4.7 million. The approximate number of U.S.-born children younger than 18 living with unauthorized-immigrant parents in the U.S. in 2014.
- 33. The number of countries with unrestricted birthright citizenship, according to World Population Review.
- 32. The number of countries with some form of restricted birthright citizenship.
- 58%. The percentage of Americans in 2015 who said being born in the United States is important to be considered “truly American,” according to a Public Religion Research Institute survey.
- 44%. The percentage of Americans in 2022 who said being born in the United States is important to be considered “truly American.”
- 42%. The percentage of Americans who favor changing the Constitution to prevent children who are born in the United States to non-U.S. citizens from being granted citizenship.
- 67%. The percentage of Republicans who favor this change to the Constitution.
- 25%. The percentage of Democrats who favor this change to the Constitution.
The extras.
- One year ago today we wrote about the antisemitism testimony from college presidents.
- The most clicked link in yesterday’s newsletter was the footage of Jordan Neely’s death (warning: graphic content).
- Nothing to do with politics: Why are celebrity lookalike contests suddenly so popular?
- Yesterday’s survey: 2,711 readers responded to our survey on Daniel Penny’s acquittal, with 85% agreeing with the verdict. “I think it was good he was charged, and good he was acquitted. Shows the justice system working,” one respondent said.
Have a nice day.
Animal trafficking has led to rare species from Madagascar being illegally smuggled into Thailand. But during an operation in May, Thai police recovered 1,117 animals, including the endangered species of spider tortoises, radiated tortoises, ring-tailed lemurs, and brown lemurs. Although some of the animals passed away while in captivity, 961 live animals are being repatriated to Madagascar in the largest ever effort between the two countries. CNN has the story.
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