Children born in the United States are entitled to birthright citizenship under the 14th Amendment even if their parents are illegal aliens or transients.
The Supreme Court this morning, in Trump v. Barbara, settled by a 5–4 vote the long debate: Children born in the United States are entitled to birthright citizenship under the 14th Amendment even if their parents are illegal aliens or transients. The opinion by Chief Justice John Roberts commanded six votes, although Justice Brett Kavanaugh joined the dissenters on the constitutional rule and joined the majority only on the theory that Congress had extended birthright citizenship further than the Constitution required. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch all wrote dissents. The Thomas dissent alone, which Gorsuch joined, runs 94 pages. Justice Ketanji Brown Jackson also wrote a characteristically heated concurrence. I’ll be working through the opinions in the Corner. I’ll start here with a summary of how we got here.
There’s an extensive backstory to Barbara that will be familiar to regular readers, and I’ve written at length on them; I’ll summarize here briefly. The Constitution of 1787 did not define American citizenship, other than to require the president to be a “natural-born citizen.” Other references in the Constitution to citizenship, such as in Article III’s federal court jurisdiction rules or regarding the privileges and immunities of citizenship, discussed citizens of states. Nonetheless, there are relevant authorities from the pre-Civil War period suggesting that the background American rule was that citizenship derived from place of birth. As James Madison wrote: “It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.”
In Dred Scott v. Sandford (1857), the Supreme Court infamously ruled that black Americans, slave or free, could never be citizens of any state for Article III purposes, and therefore could not sue in federal court. For present purposes, the important thing is that the Republicans who wrote the 14th Amendment hated Dred Scott and aimed to extirpate it. In order to remove all doubt about black citizenship and fortify the constitutional basis for the Civil Rights Act of 1866, the very first sentence of the 14th Amendment — passed in 1866 and ratified in 1868 — provides: “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.” Everyone agrees that this is extremely broad, universal language that goes well beyond securing black citizenship, but is qualified by the phrase “subject to the jurisdiction thereof.”
Everyone also agrees that “subject to the jurisdiction thereof” was widely understood to exclude certain specified classes of people: Native American tribes that had their own domestic sovereignty, and the children of foreign diplomats, sovereigns, and invading armies, who were effectively here outside of American law as representatives of foreign sovereign nations. The nub of the case in Barbara is whether those categories are the only ones so excluded.
Two early Supreme Court decisions interpreted this clause. In Elk v. Wilkins (1884), the Court ruled that a Native American did not have birthright citizenship even though he had renounced all allegiance and relation to his tribe and submitted himself to the jurisdiction of the United States. In United States v. Wong Kim Ark (1898), which like Elk was penned by Justice Horace Gray, the Court ruled that an American-born child of Chinese nationals was a citizen. Wong Kim Ark’s parents lived in California for about two decades without becoming citizens. At the time, there was no official legal status for immigrants. While critics have argued that Wong Kim Ark didn’t explicitly settle the status of children of transients or illegal immigrants, its broadly worded view of birthplace as the standard has ruled American law for 128 years. While the Court held in Plyler v. Doe (1982) that the equal protection clause protects illegal aliens, that decision doesn’t really have much to do with the citizenship clause, given that the equal protection clause pointedly protects “persons,” not “citizens” (the latter of whom are given additional protections by the privileges and immunities clause).
For years, some on the right — notably John Eastman and other Claremont scholars — have pushed to reconsider this question, but only the Trump era has produced a new flood of serious scholarship on the citizenship clause. Donald Trump’s Executive Order 14,160, signed at the outset of his second term, sought to eliminate birthright citizenship for children of illegal aliens and transients through the country. My own view has been that Trump is wrong on both counts, although there is a more plausible case for excluding the children of transients who do not establish a residence in the United States. The executive order applied only prospectively, but nobody is really fooled that if the courts upheld it, that would set the stage to argue that its rule could apply retroactively as well. But there’s a further complication: Congress in 1940 and 1952 used the language of the citizenship clause in statutes, and some have argued that this means that Congress codified Wong Kim Ark and therefore even if Trump is right on the Constitution, only Congress can change the law and allow a narrower view of citizenship. (It is common ground that Congress can make birthright citizenship broader than the Constitution requires, as it did in 1924 for Native Americans.)
The birthright citizenship order was immediately enjoined, and reached the Court last year, but its decision in Trump v. CASA, Inc. dealt only with the scope of nationwide injunctions and not with the merits of the dispute. But this time, the Court grasped the nettle, and endorsed Wong Kim Ark in its broadest reading.