This week, the Supreme Court ruled that the Trump administration could not move ahead with its executive order attempting to disallow citizenship for people born in the United States to parents who are undocumented or have temporary legal status. The order, which could have left many people effectively stateless, had been blocked since its inception.
It was a relief, though a paltry relief indeed, that the high court did not allow President Donald Trump to undo the plain text of the Constitution on his own, especially when the move was based quite explicitly on rancor toward a group of people. The decision, Trump v. Barbara, was 6-3, though Justice Brett Kavanaugh concurred only in the judgment, declining to say that the order violated the Constitution, only federal law as currently written. So really, four of the justices of our highest court — Kavanaugh and Justices Neil Gorsuch, Clarence Thomas and Samuel Alito — did not see a constitutional bar against Trump unleashing this unconstitutional chaos.
One of the things that my co-writer Gaby Del Valle and I tried to do with our onetime newsletter BORDER/LINES was bridge a gap that we saw in immigration coverage between the surface-level reports for general audiences and very dense writing by and for lawyers. I am going to try to emulate that here by getting a bit more into the weeds, hopefully in an accessible way, on what the administration and its legal supporters were arguing, because I think it’s important to grasp the depths of its absurdity.
The 14th Amendment was ratified as part of the Reconstruction Amendments in the aftermath of the Civil War. It 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 wherein they reside.” It’s obvious that the amendment was introduced and approved primarily with formerly enslaved African Americans in mind, a constitutional guarantee that their basic citizenship could not be questioned or abrogated (though needless to say, attempts to abrogate those rights have indeed continued throughout the entire intervening period).
Still, there’s no evidence in the historical or congressional record that the drafters of the amendment intended to exclude other categories of people from falling under the auspices of the amendment, including undocumented residents or temporary visitors, not least because these concepts did not meaningfully exist at that time. The amendment preceded the first categorical federal immigration controls by about seven years, and the concept of visas by decades. Its framers could have written “all formerly enslaved persons” or “all persons of African descent,” but they did not – they wrote “all persons.”
Birthright citizenship’s opponents have tried to hang their hats instead on that one exception clause, “subject to the jurisdiction thereof.” The thing is, these are efforts to complicate a simple concept. You don’t have to be a lawyer to understand “subject to the jurisdiction” – you probably intuitively grasp what it means, and you probably understand that you are indeed subject to the jurisdiction of the United States. If you, right now, committed any sort of federal crime or civil violation, could the government hold you accountable? Then you are subject to its jurisdiction.
The only people for whom this has not been true are those who enjoy some type of inherent immunity, which in historical terms has only ever meant foreign diplomats with diplomatic immunity (the children of foreign enemies on U.S. soil would also be excluded, but this has, to my knowledge, never meaningfully come up). This is why the children of foreign diplomats have long been the only people who can be born on U.S. soil and not receive automatic citizenship (though they can receive instant residency, and often naturalize pretty quickly).
Indeed, this matter of jurisdiction is what was at issue in the early battles over birthright citizenship, culminating in the landmark 1898 Supreme Court decision in United States v. Wong Kim Ark. Wong was born in San Francisco to parents of Chinese origin. He later left to live in China for some time before returning to the U.S., at which point he’d been denied entry under the Chinese Exclusion Act on the grounds that he was a foreign national and not really a U.S. citizen. When he sued, the government argued that his parents, and consequently Wong himself, were “subjects” of the Chinese emperor and therefore not included.
The court disagreed, ruling 6-2 that unless his parents had been employed by the Chinese government directly as ambassadors or in some similar capacity, this question of their putative allegiance was immaterial to the fact of whether Wong was born under the auspices of U.S. jurisdiction. Active allegiance is required for naturalization but not native-born citizenship.
In its decision, the court referenced the concept of “domicile,” in the sense that Wong’s parents were domiciled in the United States. That’s a concept that the opponents of birthright citizenship have latched onto to claim that undocumented residents and visitors are not properly domiciled in the country and that their children are therefore ineligible. But this is just another way to elude the amendment’s fundamental focus on jurisdiction. Again, the framers of the amendment could have written “born to parents with allegiance to” or “domiciled in,” but they did not.
I think it’s important to understand that this whole case was an effectively artificial legal “debate.” Between the Wong decision in 1898 and Trump’s first term, birthright citizenship had been considered a fully settled legal issue. Setting aside some assorted cranks such as John Eastman — the law professor and Trump adviser infamous for hyping up the Jan. 6 crowd while wearing an Australian outback hat, who was eventually disbarred for his efforts to overturn the 2020 election — even the conservative legal movement had not been gunning to overturning birthright citizenship. That is, not until Trump (whom I am using as shorthand for the actual decision-makers like Stephen Miller, the top White House domestic policy adviser, because while Trump is undoubtedly racist in a sort of cartoonish way, he does not really care about actual policy) decided to target it. This effort prompted a flurry of friendly think tanks and legal scholars to start putting together articles and amicus briefs adopting arguments around domicile and allegiance that would up until very recently have been considered unserious.
This is the modus operandi of the MAGA legal wing in tandem with the Supreme Court these days: Justices sometimes allude in their opinions to certain challenges they would be amenable to, and then deep-pocketed dark money groups and legal institutes go looking for plaintiffs to bring lawsuits that fit the bill. Those can make their way up to the Supreme Court, which then uses the case to rewrite the law in the manner previously suggested. That method did not work in the case of birthright citizenship, but it’s been the trajectory of numerous big recent decisions, from overturning Roe v. Wade to allowing Trump to fire the heads of independent agencies to letting him limit environmental regulations.
Now, as we head into the semiquincentennial celebrations of the Declaration of Independence, one of the greatest enemies of the ideals set forth in that document is the modern Supreme Court, which has taken an expansive view of Trump’s executive authority (though, curiously, not President Joe Biden’s) and a more limited view of the right of regular people to participate politically, enjoy individual freedoms and be free from the imposition of religion, among other things. The court pulling back from a constitutional disaster with the birthright citizenship decision doesn’t make that any less true.
