Political and legal conventions have been upended by President Donald Trump's broad executive orders and mass pardons in the days since he returned to the White House. However, one order belongs to a different category.
His proposal to revoke the 14th Amendment's plain language and nullify the 1898 Supreme Court ruling would terminate the constitutional guarantee of birthright citizenship. Until the parents come under one of the few exceptions, such as foreign diplomats or members of invading armies, citizenship for anybody born in the United States has long been secured by that case, which was brought by the son of Chinese nationals.
The Trump decree brings to mind the famous 1857 ruling in Dred Scott v. Sandford, which declared that Black people were not eligible to be citizens. The 14th Amendment's passage in 1868 overturned the decision, which contributed to the outbreak of the Civil War.
The presidential order started off by referring to Dred Scott as a "shameful decision," possibly to avoid similarities with a despised ruling based on ideas of White supremacy. However, in order to support Trump's anti-immigrant agenda, the directive changed the 14th Amendment to exclude children born to undocumented parents.
A series of lawsuits were promptly launched by civil libertarians, immigrant rights organizations, and 24 Democratic-led states and cities. The first hearing is set for Thursday in Seattle. The difficulties paved the way for a legal dispute over a fundamental aspect of American identity and guarantees that have permeated American society for over a century.
Since Dred Scott has long been considered a major "self-inflicted wound," the case is probably going to make it all the way to the Supreme Court. However, Trump supporters are hopeful that a new conservative supermajority will soon overturn yet another precedent.
This one would be unique.
Trump's reading of the 14th Amendment is at odds with its unambiguous language and almost a century-old legal interpretation. Furthermore, the justices have not indicated that they would like to review United States v. Wong Kim Ark, in contrast to other areas of policy and individual rights.
Wong Kim Ark and birthright citizenship did not become hot topics during the Senate confirmation hearings of justices, in contrast to major cases like Brown v. Board of Education, New York Times v. Sullivan, and Roe v. Wade. Furthermore, unlike abortion, birthright citizenship has not entered the mainstream political conversation. Furthermore, the 14th Amendment's Citizenship Clause is explicit, in contrast to the Constitution's implicit guarantees of privacy and other fundamental rights.
"Everyone born or naturalized in the United States and under its jurisdiction is a citizen of the United States and the State in which they reside," it declares.
Another characteristic unique to this time is that the present majority of the Supreme Court has a "originalist" stance, and it would be challenging to defend reversing Wong Kim Ark given the history and custom surrounding the 14th Amendment and the 1898 decision.
Professor Sandra Rierson stated in an article published last year in the Georgetown Immigration Law Journal that the 14th Amendment's broad language, including the language pertaining to jurisdiction, "had a clear and long-standing meaning under the common law that existed" at the time of its adoption and "that meaning was reiterated and explained throughout the congressional debates."
In his essay detailing the several attempts to terminate birthright citizenship, Rierson noted that contemporary resistance has emerged "in
Rierson, who teaches at Western State College of Law in California, said that the conservative justices who dominate the court would not likely alter precedent based on their own logic after Trump made his order this week.
"It would be hard to accept Trump's executive order if what they're really worried about is American history and tradition," she told CNN.
"The anti-immigrant sentiment that Wong Kim Ark exposed coincided with our current period," she continued. "It's not that the justices were unaware of anti-immigration sentiment. Politicians have always taken advantage of people's fear of others.
Chinese immigrants were specifically targeted by anti-immigrant sentiment in the 1890s. The case started when Wong Kim Ark, who was about 21 years old at the time, traveled to China to see family and was refused entrance upon his return because he was not a citizen of the United States.
The majority of the Supreme Court ruled in 1898 that the son of a Chinese national born in the United States was protected by the plain language of the 14th Amendment.
According to Justice Horace Gray's majority opinion, "the Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States." "Every foreign national who resides here is under the protection and allegiance of the United States, and as such, is subject to its jurisdiction."
The court came to the conclusion that "to hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States." The court did not base its reading of the 14th Amendment on the fact that Wong Kim Ark's parents had "a permanent domicil and residence in the United States" at the time.
Lawsuits center on Trump's order's harm.
Since Monday, other lawsuits have been filed, highlighting the possible harm that Trump's order could cause to specific individuals.
In 2022, "there were approximately 255,000 births of citizen children to non-citizen mothers without lawful status (undocumented) and approximately 153,000 births to two undocumented parents nationwide," according to the case that will be heard in Seattle on Thursday.
The document describes the repercussions for kids who would no longer be eligible for social services and essential benefits. Adults would not be able to work legally or get Social Security numbers. They would also be denied the right to vote. The newly impacted people "will be placed into lifelong positions of instability and insecurity as part of a new underclass in the United States," according to the allegation.
Trump has been adamantly opposed to birthright citizenship since his initial presidential campaign in 2016. He claimed that birthright citizenship was "based on a historical myth and a willful misinterpretation of the law," and he pledged to abolish it on the first day of his second term in 2024.
Trump announced his directive titled "Protecting the Meaning and Value of American Citizenship" on Monday, following his re-appointment and oath of office from Chief Justice John Roberts.
"The privilege of United States citizenship is a priceless gift," he said. "As permanently excluding people of African descent from eligibility for United States citizenship solely based on their race," he claimed, Dred Scott misunderstood the Constitution.
He went on to say: "However, the Fourteenth Amendment has never been construed to grant citizenship to all people born in the United States. People who were born in the United States but were not "subject to the jurisdiction thereof" have always been denied birthright citizenship under the Fourteenth Amendment.
Trump disregarded the long-standing interpretation of the Citizenship Clause by defining two new groups of people who would not be protected: those whose mother was in the country illegally and whose father was not a citizen or lawful copyright at the time of the child's birth, and those whose mother was in the country on a temporary, legal visa (such as a tourist or student visa) and whose father was not a citizen or lawful copyright at the time of the child's birth.
He stated that his directive from January 20 would go into force in 30 days.
Trump's restriction on the 14th Amendment is consistent with legal ideas that were previously marginalized that hold that undocumented immigrants would not be included by the phrase "subject to the jurisdiction" of the US.
One of the most well-known opponents of birthright citizenship and a mastermind behind Trump's unsuccessful challenge to the 2020 election results, former Chapman Law professor John Eastman, claimed the 14th Amendment protected people under "complete" political jurisdiction who had no allegiance elsewhere.
In the University of Richmond Law Review, Eastman argued that the 1898 court had incorrectly interpreted the "jurisdiction" restriction to cover a specific category, such as diplomats' children. "Justice Gray simply failed to appreciate … that there is a difference between territorial jurisdiction and the more complete, allegiance-obliging jurisdiction that the Fourteenth Amendment codified," he wrote.
According to Eastman, the Wong Kim Ark majority ruling was also "at odds with" the fundamental ideas that underlie the sovereign authority of naturalization. "Essentially, it meant that foreign nationals could unilaterally obtain American citizenship for their offspring simply by giving birth in the United States, regardless of whether their entry into the country was lawful or unlawful, temporary or permanent."
Roger Taney and Dred Scott, the notorious
Regarding birthright citizenship, Trump's stance is not supported by any recent cases. However, remnants of his statements against immigrants "invading" America were revealed in a US Appeals Court ruling last year by Judge James Ho, which may someday be utilized to support the president's position.
Ho, a 2018 Trump appointment on the federal appellate court that covers Texas, Louisiana, and Mississippi, was open to arguments that illegal immigration across the Texas border could amount to a "invasion" in a concurring decision in a case unrelated to birthright citizenship. For offspring of invading armies, that wording might suggest an exception to the standard reading of the 14th Amendment.
Judge Ho has frequently supported new conservative ideas. He did, however, write an essay before to reaching the bench that specifically addressed birthright citizenship and claimed that children of unauthorized immigrants were protected by the 14th Amendment and the Wong Kim Ark case.
In a 2006 piece published in The Green Bag, he stated, "All three branches of our government – Congress, the courts, and the Executive Branch – agree that the Citizenship Clause applies to the children of aliens and citizens alike."
Ho ended by warning that "stay tuned: Dred Scott II could be coming soon to a federal court near you" if a move were to revoke birthright citizenship.
During his 2005 Senate confirmation hearings, Chief Justice Roberts was not questioned with the Wong Kim Ark case. Nevertheless, Roberts responded to Dred Scott's raising by referring to it as "perhaps the most egregious examples of judicial activism in our history … in which the Court went far beyond what was necessary to decide the case."
"And in all honesty, I believe that historians would agree that the Supreme Court attempted to position itself to settle the debate over the continuation of slavery in a way that it believed was best for the country," he continued. "And we witnessed the terrible results that followed."
Roberts has since made references to Dred Scott's legacy as well.
In 2010, he compared the chief justice who wrote Dred Scott to the great chief justice of the 19th century, saying, "You wonder if you're going to be John Marshall or you're going to be Roger Taney."
"Obviously, the answer is that you will not be John Marshall," Roberts stated. But you wish to stay away.