One hundred twenty-eight years after the United States Supreme Court upheld the birthright citizenship case of San Francisco native Wong Kim Ark, a Bay Area-educated daughter of Chinese immigrants presented the oral argument against President Trump’s Executive Order 14160 that would reverse it. While many court observers expect the Trump executive order to be struck down, at stake in the court decision is the very definition of what it is to be an American.
On the first day of his second term, President Trump issued an executive order to deny U.S. citizenship to children of temporary U.S. residents or unauthorized immigrants. In his view, birthright citizenship has been abused by people entering the United States illegally to bear children who would gain automatic U.S. citizenship and by others, known as “birth tourists,” who enter the United States on visitor visas and remain just long enough for a child’s birth and immediate attainment of U.S. citizenship qualifying the infant for a future return to America or the ability to petition for family members to become immigrants.
The executive order, not yet in effect, would also deny birthright citizenship to children of people who have longstanding legal status here such as international students and high-tech employees. While it is not intended to be applied retroactively, both Kamala Harris and Usha Vance would have been denied U.S. citizenship if it had been in place and their graduate student parents were not yet U.S. citizens. Ironically, the executive order would keep in place “derivative citizenship” for children born outside the U.S. but who have a U.S. citizen parent. U.S. Senator Ted Cruz obtained his citizenship that way when he was born in Canada as the son of a Delaware-born mother and Cuban citizen father. He filed a brief at the Supreme Court against birthright citizenship.
Challenging the executive order, ACLU Legal Director Cecillia Wang argued that the Supreme Court already established in 1898 that the 14th Amendment birthright citizenship guarantee applies to all persons born in the United States except for three narrow categories of people who were beyond U.S. control: children of ambassadors, children of occupying soldiers; and American Indians belonging to tribes. In 1898, the court justified the exceptions on British common law dating back to 1608 and on the “unique status” of American Indian tribes that were considered countries separate from the U.S.
U.S. Solicitor General John Sauer argued that, unlike Wong Kim Ark’s parents, unauthorized immigrants and temporary residents lack the legal ability to stay here permanently so they should not benefit from birthright citizenship for their children. He also argued that they are not completely “subject to the jurisdiction” of the U.S. because, as citizens of another country, they have to follow their laws, too. Wang responded that this categorization could also include legal permanent residents and, despite the administration asking that the executive order be applied to newborn children only, a favorable ruling could permit the Trump administration or a future one to change its mind and start taking citizenship away from current residents.
Americans have relied upon birthright citizenship for centuries — especially the clear alignment between the words of the Constitution and its application.
Every Supreme Court justice asked multiple questions of the two lawyers. Asking tough questions does not always signal skepticism or opposition. Tough questions give a lawyer an opportunity to emphasize key arguments and overcome weaknesses or doubts. Many justices expressed doubt, however, that such a major change in granting citizenship could be accomplished without amending the Constitution. Americans have relied upon birthright citizenship for centuries — especially the clear alignment between the words of the Constitution and its application. The court may need more than the Trump administration’s citations to law review and newspaper articles to abandon a simple factor establishing citizenship — being born here. “Being born here” was even enough to grant U.S. citizenship to children born in the World War II internment camps to parents who, as Japanese citizens, were locked up and considered “enemy aliens.”
Wang emphasized that when Congress and the states that ratified the 14th Amendment to add birthright citizenship to the Constitution, they intended to do so permanently or until it is amended again. If President Trump can rewrite or ignore the 14th Amendment outside the amendment process, then the rest of the Constitution would be vulnerable as well. On social media, Trump has written that birthright citizenship is only intended to benefit children of freed slaves. “Previous condition of servitude,” however, is in the 15th Amendment, not the 14th. Also left unexplained is why the birthright citizenship portion of the 14th Amendment could be limited to the children of freed slaves but the Equal Protection and Due Process protections of the same amendment are not.
The court will issue its ruling in late June on the eve of the 250th anniversary of the Declaration of Independence. More than any other of its rulings, the decision here in Trump v. Barbara will define who is American and whether our Constitutional protections will be respected.
