Birthright Citizenship

Trump Is Right About Birthright Citizenship

Trump isn’t rewriting the 14th Amendment; he’s applying the law as it is, based on its plain language and the Supreme Court’s existing precedent

If you were wondering how long it would take for Democrats to sue the Trump administration, we have an answer. With the ink barely dry, eighteen Democrat state attorneys general, four additional Democrat state AGs, and a collection of outside groups led by the American Civil Liberties Union all filed federal lawsuits over President Donald Trump’s executive order ending birthright citizenship for the children of illegal immigrants. Their argument, that the U.S. Supreme Court has already ruled that the 14th Amendment guarantees birthright citizenship for practically anyone born here, is flatly wrong as a matter of law. The courts should use this opportunity to get it right.

The 14th Amendment — ratified after the Civil War and ensuring that former slaves were U.S. citizens — provides that “[a]ll 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 plaintiffs focus on the first part, but barely glance at the second, arguing that, with few exceptions (such as the children of foreign diplomats in the United States), anyone born in the United States is “subject to its jurisdiction,” simply by virtue of being within its borders.

They do this by relying almost entirely on United States v. Wong Kim Ark, an 1898 U.S. Supreme Court opinion that the plaintiffs get hopelessly wrong. In Wong, the court held that a man born in San Francisco to Chinese immigrants was a U.S. citizen under the 14th Amendment. Omitting some key facts, the plaintiffs argue this means that all children born in the United States of all immigrant parents, with the aforementioned very rare exceptions, automatically are U.S. citizens. Even a cursory read of the opinion, however, shows that the Supreme Court ruled nothing of the sort.

Wong was born in California and lived his entire life in the United States, until he took two trips to China to visit family as an adult. The first time he returned to the United States, he was admitted through customs as a U.S. citizen. A few years later, after visiting China a second time, he was denied reentry after a customs official concluded that he was not a citizen, because his parents were not U.S. citizens when he was born here.

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