Should Birthright Citizenship Change or Remain as It Is?

 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 14^th 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 14^th 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 14^th 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 14^th 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 14^th 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 14^th 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 14^th 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 14^th 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.