The U.S. Supreme Court recently heard arguments in a case that could redefine one of the most consequential questions in American law: Who is entitled to citizenship under the 14th Amendment?
The focus, predictably, has been on constitutional interpretation — what the phrase “subject to the jurisdiction thereof” means, how it has been applied historically, and whether it extends to the children of those unlawfully present in the United States.
Those are important questions. But they are not the only ones — and arguably not even the most important.
Because the deeper issue exposed by this case is not merely what the Constitution permits. It is who gets to decide. By leaving this question first to the executive order and then to the majority of the Court, this case exposes what Congress has failed to do.
For decades, Congress has abdicated its responsibility to define and regulate the contours of citizenship in a manner consistent with both constitutional text and national sovereignty. Instead of legislating clearly and deliberately, it has allowed ambiguity to fester — leaving the courts to resolve disputes that are fundamentally legislative in nature.
That is not how our system is supposed to work.
The Citizenship Clause of the 14th Amendment was never intended to function as a blank check. Its central purpose, in the wake of the Civil War, was to guarantee citizenship to formerly enslaved persons — those who were unquestionably subject to the full jurisdiction of the United States and owed it complete allegiance.
It was not designed to incentivize the circumvention of immigration law or serve as a conduit for birther tourism.
Yet today, a growing and undeniable phenomenon exists: individuals entering or remaining in the country unlawfully and having children on U.S. soil in order to secure legal status for those children — and, in many cases, eventual derivative benefits for themselves.
Call it what it is: a form of unjust enrichment.
Citizenship is not merely a benefit. It is the highest legal status our nation can confer. It carries with it not only important rights (including voting), but reciprocal obligations — allegiance, civic participation and a shared commitment to the American constitutional order.
To treat it as an automatic byproduct of unlawful presence is to diminish its meaning and undermine the rule of law.
And yet Congress has largely remained silent.
Under Section 5 of the 14th Amendment, Congress is explicitly empowered to enforce the Amendment through appropriate legislation. That authority is not symbolic — it is operative. It exists precisely so that elected representatives, accountable to the people, can define and implement the boundaries of citizenship in a way that reflects both constitutional principles and contemporary realities.
Instead, Congress has ceded that role to the judiciary, and depending on the outcome of this case, the executive.
This creates two profound problems.
First, it distorts the role of the courts. The judiciary is forced into the position of making policy-laden determinations about immigration and national identity — questions that are far better suited to the legislative branch.
Second, it ensures that whatever the Court decides will be perceived not as a durable resolution, but as another flashpoint in an ongoing political battle. It will undermine judicial legitimacy. Majority opinions, by their nature, lack the representative and deliberative legitimacy and flexibility that legislation can provide.
If Congress believes that birthright citizenship should extend to all persons born on U.S. soil regardless of their parents’ legal status, it should say so clearly — and defend that position to the American people.
If it believes, instead, that citizenship should be reserved for those born to individuals lawfully present and fully subject to U.S. jurisdiction, it has both the authority and the obligation to legislate accordingly.
What it cannot continue to do is nothing.
The United States is a sovereign nation. Sovereignty includes the right to define the terms of membership — to determine who is admitted not just physically, but politically and legally into the national community.
That responsibility does not belong primarily to the courts. It belongs to Congress in our republican form of government.
The Supreme Court may soon provide an answer to the legal question before it. But even a definitive ruling will not resolve the broader issue of political will.
Only Congress can do that.
And until it does, we will continue to see the meaning of citizenship contested not through the deliberative process the Constitution envisions — but through litigation, ambiguity and institutional drift.
That is not a sustainable path for a constitutional republic.
Jenna Ellis is a senior policy advisor with AFA Action, national radio host of “Jenna Ellis in the Morning,” and a Florida resident. She previously served as a senior legal adviser to former President Trump.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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