One of the first battles between the incoming Trump administration and the City and County of San Francisco could come over the expected attempt to end birthright citizenship. The constitutional principle that “if you’re born in the United States, you’re a U.S. citizen” comes, appropriately enough, from an 1898 United States Supreme Court decision about a Chinese American laborer, Wong Kim Ark, who was born in San Francisco on 751 Sacramento Street. In 1895, he was denied entry into the United States after a trip to China on the grounds that he was not a U.S. citizen and was barred by the Chinese Exclusion Act. As early as January, the battle could pit the federal government against our Department of Public Health over issuance of birth certificates for infants.
San Francisco City Attorney David Chiu has pledged to be at the forefront of protecting immigrants against an expected rollback of rights, heightened immigration law enforcement, and attacks on our sanctuary city status. President-elect Trump has long fixated on birth certificates and immigration ever since his challenges to President Barack Obama’s citizenship. Despite the Supreme Court’s 1898 Wong Kim Ark ruling that the Constitution means what it says at the start of the 14th Amendment that “all persons born or naturalized in the United States” are citizens, Trump plans to limit its application to children born to either U.S. citizens or legal residents. He has promised to issue an executive order on Day 1 of his administration but will run into a practical obstacle — while the federal government has wide authority over immigration, the power to issue documents related to citizenship originates with doctors, hospitals, and midwives who have responsibilities under state and local law to document and report births.
On average, 19 children are born every day in San Francisco. Under California Health and Safety Code 102425, medical practitioners attending a birth are required to complete a federally created form with birth information. At the same time, parents are required to provide identification, and list the places of their own births, to receive the infant’s birth certificate. The process is routine and often electronic. Local and state officials recognize that some parents may not have state or federal government-issued identification documents and accept documents from a foreign government or consulate. San Francisco City Health Officer Susan Philip, in charge of the system locally, might continue to accept foreign documents in defiance of an executive order barring them or could challenge the executive order in federal court. Or the city could force the Trump administration to sue to require compliance or to begin a longer process to cut off federal health care funds to San Francisco.
The Constitution means what it says that “all persons born or naturalized in the United States” are citizens.
A court would have to decide whether birth certificates will continue to be regarded as largely the province of state and local governments. In contrast to other countries, we have no federal birth or death recording system. It’s been that way since the 1630s when Massachusetts and Virginia first began to maintain birth record systems. Even the conservative originalist justices of the current Supreme Court tend to respect the traditional divisions of labor between states and the federal government. While the federal government entered the field of mandating security aspects of driver licenses, the Real-ID Act was enacted 20 years ago and is still not fully implemented and enforced. In short, even if the court ruled that the president’s authority extended to local and state birth records, it might take years for a system limited to U.S. citizens only to replace the current one.
The Trump administration also might try to force San Francisco’s compliance by shutting off federal funds if the city does not go along. That path, too, would be complicated. A court would need to decide whether there is a connection between the conflict over birth certificates and the funds it wants to take away. For example, providing a birth certificate for a child born at a private hospital or by a midwife would hardly be connected to the city’s health system or Medicaid dollars. Those and other federal funds might not be lost.
Ultimately, a challenge by San Francisco to the threat to ending birthright citizenship would reach the United States Supreme Court where there will be some votes, but not necessarily a majority, for ruling that the United States v. Wong Kim Ark has been misunderstood for over 125 years and covered only children of U.S. citizens and legal residents. But Chinese living in the United States were not eligible for naturalization at the time of Wong Kim Ark’s case and the court enumerated just three exceptions to the rule: the children of American Indians not taxed, foreign ambassadors, or occupying soldiers. Even if the Supreme Court did pull back from the long-standing understanding of Wong Kim Ark, it is doubtful that anyone already a citizen would be at risk of having it taken away.
Litigation over these and other issues may last well beyond the four years of the Trump administration. If it’s not resolved in court, a future president could reverse the executive order. Questions remain as to whether the child of a foreign student or H-1B temporary resident would be denied citizenship and, what, if any, citizenship status that child would have instead because some countries do not grant overseas citizenship.
How San Francisco officials respond to the Trump administration on birthright citizenship may well determine the fate of over a century of constitutional and immigration law as well as the futures of tens of thousands of children heretofore known as Americans.