After more than 100 years of birthright citizenship, Supreme Court appears skeptical of change
A presidential order reinterpreting how the Constitution defines U.S. citizenship faced a skeptical Supreme Court on Wednesday.
The case, Trump v. Barbara, is one of the most important the justices will decide this term. The oral argument, in fact, made history as the first to be attended by a sitting president. President Donald Trump left about halfway through the proceedings, according to reports.
The case stems from an executive order Mr. Trump issued hours into his first day back in office. It attempted to redefine the citizenship clause of the 14th Amendment and the 1952 Immigration and Nationality Act, which codified the clause into federal law. The clause provides automatic U.S. citizenship to 鈥渁ll persons born or naturalized in the United States, and subject to the jurisdiction thereof.鈥� Mr. Trump鈥檚 would make the children of parents in the country illegally 鈥� or temporarily, such as on a student visa 鈥� ineligible for citizenship because they are not 鈥渟ubject to the jurisdiction鈥� of the U.S. government. The order would apply only to future births.
Why We Wrote This
In one of the biggest cases of the year, Supreme Court justices sounded wary of the government鈥檚 argument that the Constitution does not guarantee birthright citizenship. In a first, the president of the United States attended the oral argument.
The challengers claim that upholding the order would violate the Constitution and upend centuries of settled law. The American Civil Liberties Union led the class action lawsuit on behalf of families whose children鈥檚 citizenship could be brought into question.
The Trump administration, meanwhile, argues that the order is both legal and necessary to crack down on illegal immigration and 鈥渂irth tourism,鈥� in which a woman enters the United States for the sole purpose of securing American citizenship for her newborn.
Many of the justices sounded skeptical of the government鈥檚 arguments, however.
The current interpretation of birthright citizenship 鈥渃ertainly wasn鈥檛 a problem in the 19th century,鈥� said Chief Justice John Roberts at one point.
Solicitor General John Sauer, arguing on behalf of the administration, pushed back, arguing that modern times require a reinterpretation. Unlike the 1800s, he said, foreign visitors are now only an eight-hour flight away. 鈥淲e鈥檙e in a new world,鈥� he added.
鈥淲ell, it鈥檚 a new world. It鈥檚 the same Constitution,鈥� replied Chief Justice Roberts.
After he left the Supreme Court, Mr. Trump posted that 鈥淲e are the only Country in the World STUPID enough to allow 鈥楤irthright鈥� Citizenship!鈥� In actuality, about three dozen countries provide for unrestricted citizenship at birth. Some countries around the world have chosen in recent decades to tighten, or get rid of, their birthright citizenship policies.
Lower courts have consistently ruled against the White House鈥檚 interpretation of birthright citizenship. If the justices rule in the government鈥檚 favor, there could be as many as 6.4 million U.S.-born children without legal status by 2050, according to a by researchers at Penn State University.
A 鈥渄omicile鈥� debate
Much of the oral argument on Wednesday focused on a different Supreme Court case. The in United States v. Wong Kim Ark held that a child born in California to Chinese citizen parents was a U.S. citizen under the 14th Amendment.
The Civil Rights Act of 1866 granted automatic citizenship to persons born in the U.S. and not 鈥渟ubject to a foreign power.鈥� But when Congress codified the citizenship clause in the Immigration and Nationality Act, it used the 14th Amendment鈥檚 鈥渟ubject to the jurisdiction thereof鈥� language.
鈥淥ne might have expected Congress to use a different phrase if it wanted to try to disagree with Wong Kim Ark on what the scope of birthright citizenship ... should be,鈥� said Justice Brett Kavanaugh during the oral argument.
But, Mr. Sauer told the justices repeatedly, they could uphold Mr. Trump鈥檚 order without overturning Wong Kim Ark. What the court should do, he argued, is acknowledge the importance of the Wong court鈥檚 use of the term 鈥渄omicile鈥� in that decision. The word appears nearly 20 times in the decision, and Mr. Sauer said it refers only to people 鈥渨ho are lawfully present and have an intent to remain permanently鈥� in the U.S.
The word 鈥渏urisdiction鈥� in 鈥渟ubject to the jurisdiction thereof,鈥� he added, 鈥渕eans allegiance.鈥� He continued: 鈥淭he allegiance of an alien present in another country is determined by domicile.鈥�
With that argument, the Trump administration is 鈥渢rying to characterize that [Wong] decision as more narrow than it was,鈥� says Rachel Rosenbloom, a professor at Northeastern University School of Law.
Instead, she says, the Wong decision 鈥渆stablishes a very broad rule of birthright citizenship.鈥�
The Trump administration, meanwhile, is arguing that 鈥渦nless you鈥檙e here lawfully, and unless you鈥檙e domiciled here in the United States, the birthright clause in the 14th Amendment doesn鈥檛 apply to you,鈥� says Andrew Arthur, the resident fellow in law and policy at the Center for Immigration Studies, which advocates lower immigration rates.
The Wong court 鈥渞elied upon English common law and ... feudal principles; but they all flow from the idea that you are a subject to the liege or the king,鈥� he adds. 鈥淲hat Sauer is getting at is that [interpretation] is not a good fit and [Wong] is not a proper precedent for a republic like ours to follow.鈥�
The administration鈥檚 domicile theory preoccupied the justices even during their questions to Cecillia Wang, the national legal director at the American Civil Liberties Union, who represented the challengers.
鈥淚sn鈥檛 it at least something to be concerned about ... since it鈥檚 discussed 20 different times?鈥� Chief Justice John Roberts asked her.
Big case, big (potential) consequences
The practical implications of the Supreme Court upholding Mr. Trump鈥檚 executive order are noteworthy. Narrowing birthright citizenship in that way would increase the country鈥檚 鈥渦nauthorized鈥� population by 2.5 million in one decade, according to a By contrast, the number of 鈥渂irthright tourism鈥� cases is much smaller, according to the from the Center for Immigration Studies. In 2020, they found that between 20,000 and 26,000 babies a year are born to a parent flying to the U.S. to give birth.
Enforcement could also be a challenge, particularly for parents with certain temporary statuses. Those include asylum-seekers and people living under Temporary Protected Status, which grants legal status to citizens of countries deemed unsafe to return to because of catastrophes such as natural disasters or war.
鈥淚t鈥檚 not as simple as documented immigrant versus temporary visa,鈥� says Ming Chen, a professor at the University of California聽College of the聽Law聽in聽San Francisco.
鈥淭emporary visas are all very different,鈥� she adds. 鈥淧arent status shifts a lot.鈥�
Those potential practical implications didn鈥檛 get much attention from the justices. Instead, their hours of questions about how to interpret the citizenship clause, the Wong decision, and various associated statutes illustrate how the debates between them will likely focus on the more technical aspects of the case.
Those more arcane questions can be boiled down further, says Mr. Arthur.
鈥淚s the [citizenship] clause of the 14th Amendment vague or not?鈥� he asks. 鈥淎nd if it is vague, how do you interpret it, and who can properly interpret it for legal purposes?鈥�
A decision in the case is expected by late June or early July.
