Birthright citizenship has long been a topic discussed on this blog. It is a topic that will soon be heard at the U.S. Supreme Court because President Donald Trump, on the first day of his second term, signed an Executive Order ending the long-established interpretation of birthright citizenship. Lawsuits were immediately filed. They were consolidated, and the Supreme Court will hear the arguments tomorrow.
In her
article filed at the Deseret News, Lauren Irwin, national politics reporter,
discussed what Americans should know before the Supreme Court hears the
arguments.
Trump
was seeking to reinterpret the constitutional language giving citizenship to
almost every child who is born in the United States, regardless of their
parents’ legal status. The president doesn’t want citizenship granted to
children born to parents who are in the United States either illegally or
temporarily.
The
order sparked concern among expecting mothers, immigration advocates and
constitutionalists. It was also unclear what the order could mean for those who
had already been granted citizenship under the long-standing constitutional
right.
The
case before the Supreme Court was partially presented to the justices during
last year’s term, but the high court ultimately ruled on the matter of
nationwide injunctions, declining to take up the birthright issue itself. This
week, the justices will hear the Trump administration’s appeal of a lower-court
ruling that blocked his executive order….
Trump administration argument
Trump’s
order challenged the interpretation of the 14th Amendment, saying
that babies born to parents unlawfully in the U.S. or in the country on a
temporary visa cannot be “subject to the jurisdiction” of the country, or
granted automatic citizenship.
The
administration is likely going to lean on its argument that in the language of
the amendment, it states that all people born in the U.S. are “subject to the
jurisdiction thereof.”
The
14th Amendment reads, in part: “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
administration argues that the language was not meant to cover everyone born on
U.S. soil and should apply only to those who pledge allegiance to the country,
not those who want to come to the U.S. to give birth to their children and have
a through-line to citizenship that way.
[This
intent could be shown by the use of commas setting off “and subject to the
jurisdiction thereof.” The use of commas has determined previous court
decisions.]
The
14th Amendment was adopted in the aftermath of the Civil War.
In
1857, the Supreme Court held that the U.S. Constitution did not extend
citizenship to enslaved Black people in the Dred Scott v. Sandford case. In
1868, the 14th Amendment was added to the Constitution, guaranteeing
citizenship, due process and equal protection to those born in or naturalized
in the country. In 1898, the Supreme Court confirmed and clarified the
amendment in the United States v. Wong Kim Ark case.
Wong
Kim Ark was a child born in San Francisco to parents who were Chinese citizens
at the time, before later becoming U.S. citizens. The boy was denied reentry to
the U.S. after a trip abroad and the legal battle over his citizenship reached
the Supreme Court. This was the first case on the status of children born to
immigrants and created a precedent in the court’s interpretation of the 14th
Amendment going forward.
But
the administration argues that Trump’s order “restores the original meaning” of
the Citizenship Clause, and that the text was intended to provide citizenship
to enslaved peoples and permanent residents.
The
administration argues that the respondents in the current case who say that
Wong Kim Ark’s case proves citizenship should be extended to all immigrant
children miss that in 1898, at the time of the ruling, the boy’s parents were
of “lawful ‘permanent domicil and residence’ here.” However, the ACLU and
respondents say that the court’s decision in the case includes “all immigrants,”
proving that “even temporary visitors” should be subject to the jurisdiction
and the rights provided by the amendment.
Opposing Trump’s order
Several
lawsuits challenged the constitutionality of Trump’s order. The lawsuits were
filed by expectant mothers, immigrant rights groups and several states. They
were consolidated into one case for the Supreme Court to review.
The
groups challenging Trump’s order, led by the American Civil Liberties Union,
point to the historical precedent that courts, Congress and previous presidents
have all understood and accepted regarding the language of the amendment. The
ACLU says that birthright citizenship is “central to who we are as a country”
and that “no president has the power to rewrite the Constitution.”
The
respondents in their brief to the court, like the administration, are leaning
heavily on the text of the amendment. They argue that “all persons born here” should
apply to “all” and “not just some.” They noted that the Framers included the
text to be “All persons born here” so it’s broadly interpreted to include many,
not just a few.
[Framers
is a term used to designate the people who wrote the Constitution in the
late 1700s. The 14th Amendment was written after the Civil War that
ended in 1864.]
U.S.
Solicitor General D. John Sauer argues in the administration’s brief that
birthright citizenship has been taken advantage of by women who come to the
country to give birth solely so their children receive U.S. citizenship.
The
respondents pushed back on this argument, saying that even if the pathway to
citizenship was being abused through “birth tourism,” it was “marginal” and
there were other ways to deal with the issue if it is a problem….
[These
are some of the same people who claimed that the border was closed and that no
election fraud took place.]
Respondents
want to continue with the practice as it has been done, while the Trump
administration is asking the Supreme Court to take a fresh look at the problem
and not simply rely on text that is decades old.
The 14th
Amendment was meant to give citizenship to the babies of slaves. In the 1860s,
people were not traveling like they are today. The amendment was not meant for
rich people who can afford to live in a foreign land long enough to have a baby
or for people desperate to have a child who is a citizen of the United States.
Although
many experts believe that Trump’s executive order was unlawful, there are
others who believe otherwise.
Kevin
Roberts, the president of the Heritage Foundation, said “birth tourism” is an
example of “the absurdity” that birthright citizenship has brought to the U.S.
“The
14th Amendment was never intended to grant citizenship to the children
of foreigners,” he said online. “Its current application is a gross
exploitation that must end if American citizenship is to mean anything at all.”
A
decision on the case is expected by the end of the current term, which ends in
June.