Is the Supreme Court Unsure About Birthright Citizenship?

The big prize for the White House, of course, would be an end to birthright citizenship, which many conservatives and opponents of immigration have come to deeply resent, with talk of “anchor babies” and demographic doom. Unfortunately for them, birthright citizenship is not some misty, novel concept or expansion of ill-defined rights. It is the hard promise, in plain language, of the Fourteenth Amendment, which gave citizenship to previously enslaved Black Americans but was recognized from the beginning as having a broader effect. The citizenship clause reads, “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 opponents of birthright citizenship hang their arguments, such as they are, on the words “subject to the jurisdiction thereof.” In 1898, which was only thirty years after the amendment was ratified, the Supreme Court ruled definitively on the meaning of that phrase in the case of Wong Kim Ark, a man born in California to Chinese immigrants who were precluded from becoming citizens by the Chinese Exclusion Act. The Court ruled that the only babies born in the U.S. but not “subject” to its jurisdiction in this sense were those born to “foreign sovereigns” or diplomats (for example, if a French ambassador happened to give birth in the U.S.); or those born on a foreign-government-owned ship within U.S. territorial borders; or those born to “enemies within and during a hostile occupation of part of our territory.” The “single additional exception,” the Court said, was the case of children born to certain Native American tribes, based on treaty relations that they then had with the federal government.

The Native American exception was, at the time, the most consequential, and had its own dark history. It was, however, for the most part done away with as a result of the Indian Citizenship Act of 1924. One fascinating aspect of Trump v. Barbara will be seeing what Justice Neil Gorsuch—a conservative who is also, somewhat idiosyncratically, an expert on and champion of tribal legal rights—makes of Wong Kim Ark’s legacy. In sum, Wong’s was a landmark case, not an obscure one, and the Court referred back to it in the decades that followed; its majority opinion in a 1957 case, for example, notes that a baby born to parents in the United States illegally “is, of course, an American citizen by birth.” Legislators shared that understanding of birthright citizenship when Congress incorporated the Fourteenth Amendment’s language into federal law, in 194src and 1952.

Trump’s executive order represents a complete break with that history. It says that a baby is not a citizen if the mother has no legal status, or if her status is legal but only temporary (for example, if she is on a work or student visa), and if the father is not a citizen or legal permanent resident. Incredibly, the Administration, in its petition to the Supreme Court, argues not only that the order is legal but that the Court can uphold it without overruling the Wong Kim Ark precedent, which it claims has been “misread” for more than a hundred years.

In defense of this indefensible position, the Administration notes that Justice Horace Gray, who wrote the majority opinion in the case, mentioned a number of times that Wong Kim Ark’s parents were “resident” or “domiciled” in the United States. But, as the lawyers for the Barbara babies have argued, Gray went further, saying that anyone residing in the U.S. is clearly subject to its jurisdiction and, importantly, that those here just temporarily are subject to it, too. (Again, the narrow exceptions had to do with diplomats, invaders, and Native Americans.) If you are in the U.S. just temporarily, as a tourist or a student, say, you are still bound by American laws and the government’s authority.

Yet the Administration not only acts as if residency is a magic condition but offers a completely illogical and contradictory definition of what residency is. If parental residency is a requirement, then Trump’s lawyers are making a pretty good case for the citizenship of babies whose parents have lived established lives in this country for years or decades—whatever their legal status. But the Administration’s brief slips between the terms “resident” and “lawful permanent resident,” as if they meant the same thing. And if a parent acting unlawfully, perhaps by staying in the U.S. despite a deportation order, precludes a baby’s citizenship, why are the children of native-born criminals unquestionably citizens? (Actually, one might worry about how Trump would answer that question.)