WASHINGTON — President Trump I plan to abolish citizenship by birthright newborns whose parents are here illegally or temporarily will be given full consideration in the Supreme Court.
The justices agreed Friday to hear arguments on Trump's proposal after judges across the country declared it unconstitutional and blocked it from taking effect.
Trump's lawyers have argued that the government has misinterpreted the 14th Amendment for more than a century.
“The citizenship provision was enacted to provide citizenship to freed slaves and their children, rather than to the children of illegal aliens, birth tourists, and temporary visitors,” Solicitor General John Sauer. wrote in his address.
He said Trump proposed the change because “the President recognized that automatic citizenship for the children of illegal aliens is a powerful incentive for illegal immigration.”
“Not only do such children automatically become full citizens, their citizenship is often quickly confirmed to prevent the removal of their illegal alien parents,” he said.
The 14th Amendment of 1868 begins: “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 in which they reside.”
The amendment was officially repealed Dred Scott decision in which the court declared that free blacks were not citizens.
The key phrase “subject to the jurisdiction of the United States” is understood to mean “subject to the laws of the United States,” and that includes almost everyone here except the foreign diplomats.
But Trump's lawyers argued that in 1868 the phrase was understood to more narrowly refer to individuals who had a political allegiance to the United States rather than to a foreign country.
He said that “almost automatic citizenship has given birth to the industry of modern 'birth tourism,' whereby foreigners travel to the United States solely for the purpose of having children here and obtaining citizenship for their children.”
The American Civil Liberties Union filed a nationwide class action lawsuit to block Trump's order.
“No president can change the fundamental promise of citizenship contained in the 14th Amendment,” said Cecilia Wang, national legal director of the ACLU. “For more than 150 years, it has been the law and our national tradition that everyone born on U.S. soil is a citizen at birth… We hope to settle this issue once and for all before the Supreme Court this term.”
In rejecting Trump's proposal, lawyers and judges pointed to an 1898 Supreme Court decision in favor of Wong Kim Ark. He was born in San Francisco to Chinese parents, and his citizenship was later confirmed by a court.
Trump's lawyers rejected this precedent, saying that Wong Kim Ark's parents were “permanent residents” of California. He said the court's opinion repeatedly referred to this fact, suggesting that birthright citizenship was limited to parents who were legal residents, rather than those who were here illegally or temporarily.
The court will likely hear arguments in Trump v. Barbara in March and issue a decision by the end of June.
Most legal experts questioned Trump's order because the clear words and history of the 14th Amendment promised birthright citizenship.
It is not surprising that the judges will consider the appeal. Judges almost always agree to hear an appeal if the administration loses in lower courts.
If the Supreme Court upholds Trump's proposal, it will act “only on a prospective basis,” Sauer said.
It would deny citizenship to infants whose mother or father is neither a citizen nor a “lawful permanent resident,” and would also exclude children whose mothers “came on a student, work, or tourist visa.”
