The Birthright Citizenship Kerfuffle before the US Supreme Court

By Anil Madan

The fourteenth amendment to the United States Constitution states: “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 bolded words have been the subject of controversy.

It had been generally accepted in the United States that all persons born in this country, except for children of foreign diplomats, are automatically citizens of the US. Historically, the exceptions did not extend citizenship to children of enemies in hostile occupation of any part of the territory of the United States, or to Indians (native Americans) not subject to taxation.

Birthright Citizenship in the US. Pic – AP

At the outset of his second term, President Trump issued an Executive Order purporting to limit the scope of the constitutional amendment. The Order titled, “Protecting the Meaning and Value of American Citizenship” stated in argumentative terms: “But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’” Consistent with this argument, President Trump’s EO declared a new policy of the United States not to recognize American citizenship, to persons:(1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

These two categories exclude children of illegal immigrant mothers fathered by non-citizens or lawful permanent residents, and children of mothers who are lawful, but temporary visitors to the US. The latter category includes pregnant women who come to the US to have their babies to confer automatic US citizenship on them.

President Trump’s Executive Order has been widely viewed as directed at unlawful immigrants and at the practice known as birth tourism, the practice by pregnant women, of travelling to the US (or another country) to ensure that their children born in the US will have automatic birthright citizenship. Such children are called “anchor” babies since their citizenship can sometimes be used to obtain permanent residency in the US for their parents. Other benefits may also be in the offing.

In 1898, the US Supreme Court considered the meaning of the citizenship clause of the 14th amendment in the case United States v. Wong Kim Ark. Mr Wong was born in the US to parents who were both Chinese citizens. When he was 21, he went on a trip to China to visit his parent. On his return, he was denied entry to the US on the ground that he was not a US citizen. In a 6-2 decision, the Supreme Court ruled that because he was born in the US and his parents were not “employed in any diplomatic or official capacity under the Emperor of China,” the fourteenth amendment automatically made him a US citizen.

Justice Horace Gray writing for the majority: The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases – children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State – both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.

A dissenting opinion stated: The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.

The dissenting Justice posted: “Now I take it that the children of aliens, whose parents have not only not renounced their allegiance to their native country, but are forbidden by its system of government, as well as by its positive laws, from doing so, and are not permitted to acquire another citizenship by the laws of the country into which they come, must necessarily remain themselves subject to the same sovereignty as their parents, and cannot, in the nature of things, be, any more than their parents, completely subject to the jurisdiction of such other country. Tested by this standard, the dissenting justice concluded that Mr. Wong had never been completely subject to the jurisdiction of the US and was therefore not a citizen.

Of course, the majority opinion is the controlling precedent in the US.

The posture in which the issue of birthright citizenship comes before the US Supreme Court is interesting. Three federal courts have issued injunctions against President Trump’s Executive Order preventing its enforcement throughout the US. The Trump administration asked the Supreme Court to limit the application of the injunctions to the discrete areas of jurisdiction of the federal district courts that issued the injunctions. This would allow the administration to plan on implementation of the Executive Order in the rest of the US. Perhaps fearing that the precedent of the Wong Kim Ark case is firmly against the administration, the Trump administration asked the Supreme Court to review the question whether it should stay the preliminary injunctions except as they relate to the individual plaintiffs and identified members of the organizational plaintiffs or the territory of the federal districts (in some cases an entire state) where the injunctions were issued. For now, the court has accepted review on that limited basis, but it is not clear that the substantive issue can be avoided.

Each of the three judges who issued injunctions did consider the substance of the 14th Amendment. A judge in Washington state wrote: “Citizenship by birth is an unequivocal constitutional right. It is one of the precious principals that makes the United States the great nation at it is. The president cannot change, limit or qualify this constitutional right via an executive order.”
A judge in Maryland wrote: “The Executive Order interprets the Citizenship Clause of the Fourteenth Amendment in a manner that the Supreme Court has resoundingly rejected and no court in the country has ever endorsed.”
A judge in Massachusetts said the administration’s arguments are flawed and wrote: “The way all branches of government have understood the decision for 125 years—Wong Kim Ark leaves no room for the defendants’ proposed reading of the Citizenship Clause. Of course, the defendants can seek to revisit this long-settled rule of law, but that is a matter for the Supreme Court, not a district judge.”

The lawyer acting as Solicitor General of the US repeated an argument made previously by the administration that some immigrants are not under the “jurisdiction of the United States” because of their allegiance to other countries, and birthright citizenship does not extend to the children of undocumented or temporarily present aliens. This is the same argument as the dissenting judge made in the Wong Kim Ark case.

The administration’s position is: “The executive order reflects that the Citizenship Clause does not extend citizenship universally to everyone born in the United States. Rather, the Clause expressly excludes from birthright citizenship persons who are born in the United States but who are not ‘subject to the jurisdiction thereof.’” The administration argues that: “The original public meaning of the term ‘jurisdiction’ refers [to] ‘political jurisdiction’ (which turns on whether a person owes allegiance to, and is entitled to protection from, the United States), not regulatory jurisdiction (which turns on whether a person must follow US law).”

The issue of whether federal district court judges can lawfully issue injunctions applicable over the length and breadth of the United States or are limited to issuing injunctions applicable only to the territory that their courts cover, has been a long simmering one. The Supreme Court may well resolve that issue in these cases by limiting the scope of injunctions, but it will be hard pressed to avoid the constitutional interpretation at the heart of the cases. After all, the 14th Amendment applies to all of America.

Cheerz…
Bwana

A kerfuffle is a commotion or disturbance, typically a minor one caused by conflicting views or opinions. It often implies a bit of fuss, excitement, or mild scandal.

Mauritius Times ePaper Friday 2 May 2025