OPINION: Attorney General Raul Labrador flunks the birthright citizenship exam

Idaho’s attorney general circulated a political opinion piece on March 31 suggesting that babies born on US soil are not entitled to U.S. citizenship if their parents are not lawfully residing in America at the time of their birth. This is completely counter to the language of the Fourteenth Amendment to the U.S. Constitution, as well as a landmark decision of the U.S. Supreme Court issued in 1898.

Labrador admitted as much in his opinion piece: “Automatic citizenship for anyone born on American soil, regardless of their parents' legal status, has become so accepted that courts have treated it as settled law. Even I agreed with this interpretation for a while.” So, what could have changed Labrador’s mind? It was likely a royal edict, issued by that universally recognized legal scholar, Donald J. Trump. On Jan. 20, 2025, Trump issued an executive order calling for an end to what is known as birthright citizenship. Almost immediately, Labrador snapped into line, claiming that he and the rest of us have all been wrong about our reading of the Fourteenth Amendment for all these many years. Labrador and 23 other Republican attorneys general have asked the Supreme Court to overturn what has long been the well-established law of the United States.

The actual words of the Fourteenth Amendment are so clear that anyone with a basic understanding of English should be able to understand what they mean: “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.” It does not take a law degree to gather that almost every baby birthed on American soil is subject to the jurisdiction of the United States. In its 1898 decision, the Supreme Court indicated that “children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State” were not subject to U.S. jurisdiction and not citizens.

These extremely narrow exceptions to birthright citizenship came to us from the English common law, which still applies in the U.S., except where it is changed by laws enacted since our country was born. As an example, an Idaho statute incorporates the common law, except where changed by federal or Idaho law. Trump has falsely claimed that no other country has birthright citizenship, but all countries in North America and almost all in South America derived it from Western European countries and still observe it today.

Labrador’s opinion piece was published the day before the U.S. Supreme Court heard arguments on the birthright citizenship issue. The Court appeared to throw cold water on Labrador’s flawed viewpoint. It was an uphill fight for the 24 GOP attorneys general because there is no language in the Fourteenth Amendment that supports their contentions. It says nothing about the residence, domicile or allegiance of any parent. Citizenship is bestowed on the newborn merely because the birth took place on U.S. soil.

It is close to a certainty that the Supreme Court will turn aside the effort of Trump and Labrador to destroy America‘s birthright citizenship tradition. It has been the law of the country since 1868 and the only lawful way to change it is to amend the Constitution. An unlawful executive order won't suffice.

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Jim Jones is a Vietnam combat veteran who served eight years as Idaho Attorney General (1983-1991) and 12 years as a Justice on the Idaho Supreme Court (2005-2017). He also publishes at substack.com/@jjcommontater