AG Cox says some children should be denied 'birthright citizenship' based on their parents

On behalf of all Alaskans, Temporary Attorney General Stephen Cox signed this amicus brief claiming that not everyone born in the United States deserves to be a citizen.

For more than a century, lawyers and government officials have misinterpreted the 14th Amendment to the U.S. Constitution, according to Cox, who said he reached this conclusion over the last couple of years—more or less corresponding to the second Trump era.

Cox’s final confirmation hearing is Monday at 1 p.m. before the House Judiciary Committee.

Cox decided—without raising this issue with Alaskans for a public discussion—to aid an Outside court fight to oppose birthright citizenship for some people born in the United States, aligning with the anti-immigrant hysteria fomented by Trump.

He told the Senate Judiciary Committee Friday he got the OK from Gov. Mike Dunleavy’s office to sign this amicus brief that begins, “Recent years have seen an influx of illegal aliens—over 9 million—overwhelming our nation’s infrastructure and its capacity to assimilate.”

The 14th Amendment begins: “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.”

Cox tried to mollify Sen. Gary Stevens, who said he was baffled by Cox’s opposition to birthright citizenship, which is in the U.S. Constitution.

Cox, who wants to appear to be a voice of moderation and win a confirmation vote, tried to downplay the significance of the opinions he endorsed. He claimed the amicus brief was “very narrow” and didn’t deal with the full details of which children born here would be denied citizenship if he had his way.

It’s not narrow at all, according to the AG in Iowa and the AG in Tennessee, who led the campaign to get the other Republican generals to sign their brief. They entered this fray to support Trump’s campaign to go after immigrants, claiming they only want to punish illegal immigrants.

“Our Constitution was not written with the intent to reward people for breaking the law,” said Iowa Attorney General Brenna Bird. “President Trump’s executive order closes the birthright citizenship loophole and restores the Constitution's original intent. I am grateful the Supreme Court agreed to take up this important matter, and for the states that joined us to support this important policy.”  

“The states’ brief explains that the Fourteenth Amendment never intended to grant automatic citizenship to tourists or illegal aliens who are coming into our country to have children,” the Iowa AG said in her press release.

“The idea that citizenship is guaranteed to everyone born in the United States doesn’t square with the plain language of the Fourteenth Amendment or the way many government officials and legal analysts understood the law when it was adopted after the Civil War,” said Tennessee Attorney General Skrmetti. “If you look at the law at the time, citizenship attached to kids whose parents were lawfully in the country.”

The Brennan Center says Trump’s order means that “U.S.-born children of undocumented immigrants and the children of parents residing in the country under temporary legal authorization, such as student visas and work visas, would not be considered U.S. citizens.”

The Brennan Center contradicts Cox’s analysis and says, “Congressional records indicate that the 14th Amendment’s broad guarantee of birthright citizenship was always intended to include the children of immigrants, regardless of their parents’ legal status.”

Stevens said that to him this is not just a legal dispute, but a moral issue.

He asked Cox for a clear explanation of what the AG believes. Cox managed to talk at length without providing one, speaking in a calm, vague and polished manner, dropping bits of legal jargon and trying to stay as dry as dust.

His position is that not all people born in the U.S. should have the rights of citizens and it’s largely about who their parents are, though he would never state it that simply.

He said he thinks that children born here from “temporary visitors” and people sent here “for the sole purpose of having a child and then returning to their home,” should not be citizens.

Cox said the 1866 Civil Rights Act is a key to understanding the original meaning of the 14th Amendment, which came two years later.

He said the 1866 act, “was about not just being subject to the jurisdiction thereof, but also not being subject to a foreign jurisdiction. There were discussions around that act about allegiance and whether it was not just a matter of Jus soli (right of the soil) of being born on the land. Or whether there had to be some kind of allegiance. There were also contemporary, contemporaneous decisions of secretaries of treasury and state dealing with temporary visitors and sojourners. And I do think it’s a very hard question and a very important question. And I will acknowledge, I could be wrong.”

I think what he tried to say was that the phrase in the 14th Amendment about “subject to the jurisdiction thereof,” means that one or both of the parents had to show allegiance to the U.S.

Cox said he thinks the people trying to defend the historic interpretation of birthright citizenship are wrong. But he expects, based on the oral arguments, the Supreme Court will not rule in a way that follows Cox’s interpretation of the Constitution.

“I think it’s an important question. And it’s one that I’ve thought about. And I’ve looked at some of the documents and I realize that there is room for disagreement among some of the smartest lawyers I know, including of course at the U.S. Supreme Court,” said Cox.

“I’m not sure of your answer,” said Stevens. “What is your answer?”

“My view of the Constitution under the 14th Amendment, is that it is not simply birth on the territory. That you also have to be not subject to a foreign jurisdiction and there has to be some kind of allegiance,” he said.

As Cox said, he might be wrong.

Former Attorney General Bruce Botelho, who is opposing Cox’s confirmation, wrote clearly about the many elements of this situation ignored by the AG.

He said regardless of what you think about immigration, this case “has profound implications for Alaskans and their families, including those in military service, on temporary work visas, or in mixed-status households. It invites the creation of a hereditary underclass of U.S.-born children whose status is perpetually uncertain, in direct tension with the inclusive, forward-looking values in Alaska’s own Constitution.”

He said there was “no Alaska-specific legal necessity that compelled our attorney general to weigh in on this national controversy in this way.”

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