Response to Birthright Citizenship Episode

In this episode, my friend – and now collaborator – Stan Werne provides his response to the recent episode on Birthright Citizenship.  If you haven’t already done so, you’ll probably want to listen to that episode, which was episode 13,  before you listen to Stan’s response.  It’ll make a lot more sense that way.

Stan references some of the notes from Episode 13 in his comments, and so those notes are repeated here for convenience.

1. Executive Order that would end birthright citizenship for certain immigrants
2. FAQ about the Executive Order from the Legal Defense Fund, an entity that is opposed to the Executive Order
3. Article about Senate hearing on birthright citizenship held March 12, 2026
4. Full transcript of Oral arguments before the Supreme Court on April 1, 2026
5. Takeaways from Supreme Court arguments, CNN article April 1, 2026
6. U.S. Conference of Catholic Bishops (USCCB) Brief Submitted to Supreme Court
7. Selected Catholic commentaries critical of USCCB brief by Kelsey Reinhardt, Philip Lawler, and Jacob Neu
8. US Bishops Brief Gets Mixed Reviews, article from National Catholic Register March 6, 2026
9. Projection: Repealing Birthright Citizenship Would Significantly Increase the Size of the U.S. Unauthorized Population
10. German research showing birthright citizenship impact on education and youth crime
11. Catholic Social Teaching: Call to family, community and participation
12. Podcast website with full transcripts for this episode and all other episodes

Transcript

Tom:

Welcome to “Headline News and Catholic Social Teaching,” where we take a brief look at stories in the news, not from a left or right political perspective, but through the lens of Catholic Social Teaching.  I’m your host, Tom Mulhern, and my aim is to help us grow in our love of God and love of our neighbors.

In this episode, my friend and now collaborator Stan Werne provides his response to the recent episode on Birthright Citizenship.  If you haven’t already done so, you’ll probably want to listen to that episode, which was episode 13,  before you listen to Stan’s response.  It’ll make a lot more sense that way.

And to learn more about Stan and how and why he is contributing to the podcast in this manner, I invite you to listen to Episode 16.

OK, with those preliminaries out of the way, here’s Stan. 

Stan: 

This is a follow-up to Tom's episode 13 about whether President Trump's Executive Order (EO) about birthright citizenship (BC) is constitutional or legal and about the United States Conference of Catholic Bishops' friends of the court brief arguing against the EO. Before I get to the details, since the words United States Conference of Catholic Bishops or even USCCB get to be a bit of a mouthful, I'm going to use a shortcut and just say the Bishops—in the transcript with a capital B.

Tom does an excellent job in his podcast of providing an outline of the Bishops' argument in its friends of the court brief. He also provides a good summary of the main criticisms of the brief he has found, and he concludes that the main point of the brief is that positive goods supported by Scripture and Catholic Social Teaching (CST) are preserved by retaining BC and that allowing the EO to take effect will result in some consequences that violate Scripture and CST.

As a reminder to our listeners, BC is currently built into the 14th Amendment of the U.S. Constitution,  part of which states that “All persons born or naturalized in the United Sates, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” The EO claims, correctly, that the 14th Amendment has always excluded from BC persons who were born in the US but “not subject to the jurisdiction thereof.”  A simple example is a child born in, let's say, New York to a foreign government's ambassador to the US who is residing in New York. Because that child is born to parents not subject to the jurisdiction of the US, being born in the US does not give that child American citizenship. The main issue before the Supreme Court is whether the EO is correct in asserting that citizenship should not be granted to individuals born in the US when the mother was unlawfully present in the US and the father was not a US citizen or lawful permanent resident at the time of the birth, or when the mother's presence in the US was lawful but temporary (for example, being here on a student visa) and the father was not a US citizen or lawful permanent resident at the time of the birth.

I started reading the transcript of the oral arguments before the Supreme Court to see if I could see the main outlines of the government's argument and the argument of the legal counsel for the opposing side.  Not being a lawyer, much less a constitutional lawyer, I abandoned that effort about three fourths of the way through the transcript. I was able to see that the Attorney General was saying that the 14th Amendment was never meant to apply to immigrants who aren't already citizens or lawful permanent residents because they are not subject to the jurisdiction of the US. The opposition's attorney was saying that no, the Amendment means what it has historically meant—that anybody born in the US, excluding the traditionally recognized exceptions, is and should continue to be recognized as a citizen, and that the government is twisting the meaning of the 14th Amendment.  Since most, maybe all, current members of the Supreme Court are originalists of some sort in constitutional interpretation, the attorneys and the Justices spend a lot of time in the weeds about what the framers of the 14th Amendment meant when they discussed and passed it. To put it in its simplest terms, (apologies to constitutional attorneys if this is too simple) an originalist holds that to correctly apply the Constitution to new issues, a judge has to understand the words of the law at issue as those words were meant at the time the law was passed. In other words, applying the original meaning of the terms in the law rules the day.

Now to turn to the Bishop's friend of the court brief and the critics that Tom cites and accurately summarizes. The outline of the brief in the text shows that it has two parts.  The first says that the Western tradition, the Constitution, and the teachings of the Catholic Church support BC because it recognizes the equal dignity of every human person. The second part says that the EO is immoral because it denies the innate dignity and freedom of the person, inflicts harm on vulnerable people, and weakens and threatens the family. I was really struck how baldly and boldly the brief says the EO is immoral.  It is that assertion that the critics focus on, and Tom correctly summarizes their criticisms.  I'll provide a little more detail of the criticisms in case you didn't read the citations in Tom's show notes. Kelsey Reinhardt and Phil Lawler both point out that to say the EO is immoral is to conflate what CST always carefully distinguishes, that is, the inherent dignity of the person  and the prudential authority of the state.  The brief blurs the boundary between theology and public policy. True, the Bishops should speak out about moral matters involved in public policy. But since Scripture and Catholic tradition say nothing about BC, the Bishops' brief trespasses on the proper realm of Catholic laity, whose role is to apply moral principles to prudential questions of political life.  All three critics ask how the Bishops can argue that denying BC is immoral when many countries, some with significant Catholic populations, base citizenship on the legal status of one or both parents rather than on the fact of being born in the country. All three critics also implicitly--and Jacob Neu explicitly—say that the Bishops waste some of their moral authority by so starkly arguing that the EO is immoral. Neu specifically points out that the brief makes a moral argument, not a constitutional argument that the Court would have to pay attention to, and he thinks that such a constitutional argument based on natural law would be possible except that natural law does not provide support for BC over parental status citizenship. That is certainly true with respect to how citizenship is determined across multiple countries in general. Natural law and the Church's understanding of natural law take no side on how citizenship is determined.

However, after I first read Neu's essay and was preparing my contribution to the podcast, I saw that a commenter to his essay with the user name Captain Peabody made an excellent case for how a natural law constitutional argument could have been made by the Bishops. The brief could have pointed out that although natural law may not take a stand on the grounds for citizenship status in the abstract, it does have application to legal reasoning about creating or changing a law in a particular country. In my initial email to Tom I implicitly wished I could find a natural law based argument, even though, as I pointed out earlier, current Supreme Court Justices are originalists of some sort and even though current legal theory doesn't think natural law has much helpful legal application. Captain Peabody argues that in the particular context of the US Constitution, the 14th Amendment, and current facts about the United States, a natural law legal argument can be framed. I'm paraphrasing some of this, and if I was speaking from a formal text, I would indicate which exact words are those of Captain Peabody with the phrases quote and end quote. That would probably get tiresome for you, so I'm not going to do that.  Know that this line of reasoning is Captain Peabody's, and I agree with his approach to this issue, and I apologize to him in advance if I've mistaken anything he states. 

Here's the argument. Given the large population of undocumented immigrant people in the US, given the broad historical tradition within America of recognizing BC, given the current legal norm that has been observed for many decades, given the large numbers of people who have relied on that norm of BC and would be negatively affected if it were suddenly altered, given the present climate of fear in migrant communities, given the likely harms of "statelessness" in the modern world that would result from the US moving away from BC, and given the Church's difficulties in administering even spiritually to migrants in such a situation, it would be wrong to hold that the EO is constitutional.  Captain Peabody concludes that an argument like this is well within the Bishops' role and does not conflate theology and public policy.

To be fair, if I understand the oral arguments of the attorney representing those who have challenged the EO before the Supreme Court, they make some similar points, minus of course the references to the Church, in a way that constitutional originalists might be more favorably inclined to pay attention to.

I'll conclude with some of what I wrote to Tom in my initial response to his podcast.  I hope the Supreme Court rules Trump's EO as at least illegal if not unconstitutional. First, so significant a change in US policy about citizenship should come at minimum from Congress making a law, if not from a constitutional amendment, which of course Congress would have to initiate. Based on the pledges to respect precedent that Supreme Court nominees make, and given the significant time that current understandings of the 14th Amendment have been in place, it should take WAY more than an executive order to make this change. Now I have Captain Peabody to thank for how to make this argument more specific. Second, finding that the EO passes constitutional muster and has legal force seems to me to go way beyond the unitary executive theory that Chief Justice Roberts and others on the Court have been instantiating with some of their rulings, much to my dismay and that of many others. Finally, I think Trump's EO comes from bad will and is of a piece with his harsh and in some, maybe many, cases unjust ICE practices.

Well, that's all from me related to this episode on BC.  I hope some of you found my contribution to the discussion worthwhile. If you judge that it didn't add much, blame me and not Tom.  

Until next time blessings from southern Indiana.

Tom:

Thank you, Stan, I appreciate your further development of the birthright citizenship issue.  There’s a lot to think about – and pray about.

And that’s it for this episode of “Headline News and Catholic Social Teaching.”  If you found it worthwhile, I invite you to share it with others.  If you’d like to let us know what you think about this new “response-episode” approach, there’s a link in the notes that will enable you to send a message or make a comment.

And, as always, may this episode in some small way help us live our lives guided by the Holy Spirit through the teachings of the Church.  

Thank you for listening.