The big prize for the White House, of course, would be the end of birthright citizenship, which many conservatives and anti-immigration activists deeply resent, saying “anchor babies“and demographic doom. Unfortunately for them, birthright citizenship is not some vague, new concept or extension of ill-defined rights. It is the hard-nosed, plain-language promise of the Fourteenth Amendment, which granted citizenship to formerly 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 their jurisdiction, are citizens of the United States and of the State in which they reside.”
Opponents of birthright citizenship base their arguments on the words “subject to its jurisdiction.” In 1898, just thirty years after the amendment was ratified, the Supreme Court made its final decision regarding the meaning of this phrase in happening from Wong Kim Arka man born in California to Chinese immigrants who were prevented from becoming citizens by the Chinese Exclusion Act. The court ruled that the only children born in the United States, but No “Subject” to its jurisdiction in this sense were children born to “foreign sovereigns” or diplomats (for example, if a French ambassador gave birth to a child in the United States); or those born on a ship owned by a foreign government within the territorial boundaries of the United States; or those born to “enemies within and during the hostile occupation of parts of our territory.” “The only further exception,” the Court stated, was in the case of children born into certain Indian tribes under the treaty relations they then had with the federal government.
The exclusion of Native Americans was the most significant at the time and had its own dark history. However, it was largely ended by the Indian Citizenship Act of 1924. champion of tribal legal rights– makes the legacy of Wong Kim Ark. Overall, the Wong case was landmark rather than obscure, and the Court returned to it in subsequent decades; majority opinion in 1957 casefor example, notes that a child born illegally to parents in the United States “is, of course, an American citizen by birth.” Lawmakers shared this understanding of birthright citizenship when Congress incorporated language of the Fourteenth Amendment into federal law in 1940 and 1952.
Trump's executive order represents a complete break with that history. It states that a child is not a citizen if the mother does not have 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 argues in its petition to the Supreme Court not only that the order is legal, but also that the court can uphold it without overturning the Wong Kim Ark precedent, which it claims has been “misinterpreted” for more than a century.
In defense of this unfounded position, the administration notes that Justice Horace Gray, who wrote the majority opinion in the case, mentioned several times that Wong Kim Ark's parents were “residents” or “domiciled” in the United States. But, according to lawyers for Barbara's children, Gray went further, saying that anyone living in the United States is clearly subject to its jurisdiction and, importantly, that those here temporarily are also subject to its jurisdiction. (Again, narrow exceptions included diplomats, invaders, and Native Americans.) If you are in the US only temporarily, say as a tourist or student, you are still bound by American laws and government authority.
However, the administration not only acts as if residency is a magical state, but also offers a completely illogical and contradictory definition of what residency is. If parental residency is a requirement, Trump's lawyers make a pretty strong case for citizenship for children whose parents have lived stable lives in this country for years or decades—regardless of their legal status. But in its brief, the Administration slips between the terms “resident” and “lawful permanent resident” as if they mean the same thing. And if a parent, by acting illegally, such as remaining in the United States despite a deportation order, deprives a child of citizenship, why are the children of domestic criminals undoubtedly citizens? (In fact, one might worry about how Trump will answer this question.)
