GREGG JARRETT: President Trump has a valid argument on birthright citizenship

It did not take long for the litigation lollapalooza to light up.

Not so fast.

As I explained Tuesday morning on Fox News, Trump has a credible and defensible argument that the amendment was never intended to apply to people who broke the law by coming here fraudulently or illegally.

Let's begin with the text of the Citizenship Clause itself:

"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."

The operative phrase, "subject to the jurisdiction thereof," is at the heart of Trump's justification on birthright citizenship. What does it mean?

Simply put, the mere act of setting foot on U.S. soil does not necessarily constitute allegiance or otherwise "subject" an individual to complete American jurisdiction.

The legislative history of the 14th Amendment supports this point. It was ratified after the Civil War in 1868. Its sole objective was to grant citizenship and full rights to formerly enslaved people. There is little evidence that Congress and the states meant to extend citizenship to children of diplomats, temporary students, tourists, and illegal aliens.

The ruling in Wong does not stand for the proposition that citizenship is automatically conferred to the children of parents who are here in the United States illegally. Their citizenship derives from the home country of their mother and father.

More directly relevant are two other Supreme Court cases in which the Justices explained the original intent behind the 14th Amendment. Its qualifying phrase, "subject to the jurisdiction thereof," excludes citizens of foreign countries born in the U.S. (The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 1872;  Elk v. Wilkins, 112 U.S. 94, 1884)

By his executive order, President Trump has finally set in motion a contentious issue that will now be determined in courts of law. Lest we forget, it is the primary function of the Supreme Court to interpret the Constitution and to resolve disputes such as this.  

Trump's critics are wrong in claiming that he is abusing power. As noted above, he is properly asserting it and moving the matter forward for judicial review.

This is precisely what our Founders intended when they constructed a unique government of checks and balances.  

Predictions of Trump's defeat - as usual - are premature.