Ever since the Supreme Court recognized birthright citizenship in 1898, generations of Americans have accepted that the United States Constitution encodes an absolute rule that if someone is born on U.S. soil, they are a citizen, end of story. But fringe elements of American society have repeatedly tried to attack this fundamental rule. During World War II, one group—the Native Sons of the Golden West—pursued such an attack all the way to the Supreme Court. Later this week, the Court will once again confront such a challenge, when it hears arguments in Trump v. Barbara.
This time around, it is not an exclusionist group of citizens who are asking the Court to walk back the absolute rule of birthright citizenship; instead, it is the presidential administration currently in office. The administration’s arguments are much the same as those made by the Native Sons during World War II, as is the damage that accepting them would inflict.
The Supreme Court first dissected the citizenship clause of the Fourteenth Amendment, which recognizes the citizenship of all persons “born or naturalized in the United States, and subject to the jurisdiction thereof,” in the 1898 case of United States v. Wong Kim Ark. There, the Court held that the Fourteenth 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.” Relying on centuries of English law that influenced the U.S. Constitution, the Court explained that so long as someone is domiciled on American soil—even if they are a citizen or subject of another country, and even if their allegiance to America is fleeting—then such persons are “within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States,” thereby rendering their United States–born children citizens.
Applying that standard in Wong Kim Ark, the Supreme Court upheld the birthright citizenship of a man born in San Francisco to Chinese-immigrant parents who were, as the Court said, “subjects of the Emperor of China” and who had returned to China. Today, the Trump administration defends the president’s executive order doing away with absolute birthright citizenship by arguing that the rule should not apply in the case of individuals born to parents who are either only temporarily in the United States or living in this country as undocumented immigrants. Although the administration purports not to ask the Supreme Court to overrule Wong Kim Ark, the particulars of its argument tell a different story. The administration states without any reservations that anyone born to parents who owe “allegiance to anybody else,” including another foreign power, does not qualify for citizenship under the Fourteenth Amendment. That sweeping position directly contravenes Wong Kim Ark and would require the Supreme Court to overrule it in order to embrace the government’s proposed citizenship rule.