Republican presidential candidate former President Donald Trump speaks with reporters at the National Republican Senatorial Committee, Thursday, June 13, 2024, in Washington, as from left, Sen. Rick Scott, R-Fla., Sen. Ron Johnson, R-Wis., Sen. John Barrasso, R-Wyo., Sen Roger Marshall, R-Kan., Sen. J.D. Vance, R-Ohio, and Sen. Steve Daines, R-Mont., listen. (AP Photo/Evan Vucci)
President-elect Donald Trump’s promise to end birthright citizenship once he’s back in office has a 126-year-old legal hurdle standing in its way, according to law experts.
While the U.S. Supreme Court has never ruled, specifically, on birthright citizenship, a case from 1898 — United States v. Wong Kim Ark — has been propped up by legal experts and Trump opponents as a way to combat his continued executive order promises.
“We have a legal system which is based on precedent,” explained Leti Volpp, law professor at UC Berkeley, in an interview with the San Francisco-based radio station KQED published online Friday. “In the case of Wong Kim Ark … there has been no chipping away at precedent through other decisions,” Volpp said of the possible legal wrench.
Trump has vowed repeatedly to pull the plug on birthright citizenship, extending back to his first term.
“On day one of my new term in office, I will sign an executive order making clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal immigrants will not receive automatic US citizenship,” Trump said in a May 2023 “Agenda 47” campaign video.
“It’s things like this that bring millions of people to our country and they enter our country illegally,” Trump said. “My policy will choke off a major incentive for continued illegal immigration, deter more migrants from coming and encourage many of the aliens Joe Biden has unlawfully let into our country to go back to their home countries. They must go back.”
#AGENDA47: President Trump’s plan to discourage illegal immigration by ENDING automatic citizenship for the children of illegal aliens. pic.twitter.com/3iytgg45st
— Trump War Room (@TrumpWarRoom) May 30, 2023
In United States v. Wong Kim Ark, the U.S. Supreme Court ruled in a 6-2 decision that even if a person’s parents are not eligible for citizenship, their child is automatically a citizen once born on U.S. soil. For that case, it was 21-year-old Wong — born in San Francisco to “subjects of the Emperor of China,” per Justice Horace Gray — who was deemed an American citizen after the court ruled that his parents were lawfully admitted into the country.
“[T]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens,” wrote Justice Gray in the court’s majority opinion filing.
Experts believe this wording in the court’s ruling and other statements made by Gray could ultimately force Trump to slam the brakes on his birthright bid.
“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,” Gray said.
While the amendment may be clear, Trump supporters and right-wing advocates of his citizenship and deportation plans believe the 1898 ruling by the Supreme Court is not.
Federal judge James C. Ho, for instance, has said in interviews that it doesn’t account for “invading aliens” who are coming into the United States illegally. He and others attribute Wong’s citizenship to the fact that his parents were permanent and lawful residents of California.
“Birthright citizenship obviously doesn’t apply in case of war or invasion,” Ho told Reason magazine earlier this month. “No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship.”
Volpp told KQED she was “skeptical that courts would agree that immigrants can somehow be characterized as an ‘invading army,”” noting how immigrants are “are not immune from prosecution” if they commit a crime in the United States.
“The idea that hostile armies are not subject to U.S. jurisdiction and therefore their children would not be birthright citizens comes from old English law which held that those born in hostile territory were not English subjects because English sovereign authority could not operate there,” Volpp said.
Ming H. Chen — a professor at UC Law San Francisco who is faculty-director of the school’s Center for Race, Immigration, Citizenship, and Equality — believes what makes the Wong decision so powerful is its relationship to the Fourteenth Amendment.
“The Constitution is our foundational document,” she told KQED. “All three branches of government have to serve the Constitution. The president can’t go beyond the bounds of the Constitution in issuing an executive order.”
Chen and Volpp explained that if Trump does issue an executive order deeming the future children of undocumented immigrants as no longer being citizens, it would be subject to “immediate litigation.” They believe Trump would need to change the actual text of the Constitution in order to pull off such a feat.
“In order to go against a constitutional amendment and a Supreme Court case that has enshrined this interpretation of birthright citizenship as being very broad, you would need [another] constitutional amendment,” Chen said.
“If the court wants to look backwards to history, it is very clear that the original intent of the framers was to guarantee birthright citizenship to children of immigrants,” Volpp added. “There’s this accretion of cases from the past that build up to develop a particular vision of how to interpret the law.”
Have a tip we should know? [email protected]
