Defenders of Trump’s Birthright Citizenship Order Offer an Implausible Take on a 127-Year-Old Precedent
On Thursday, the U.S. Supreme Court will hear arguments regarding three preliminary injunctions against a January 20 executive order that purported to eliminate birthright citizenship except for children of U.S. citizens or lawful permanent residents. The main issue is whether the Court should issue stays that limit the injunctions to the plaintiffs who sought them, including named members of organizations that challenged President Donald Trump’s order. But the Trump administration also has argued that all three judges erred in concluding that the edict flouted longstanding Supreme Court precedent, and several briefs supporting the government’s stay applications echo the implausible claim that the order is consistent with the relevant case law.
At the heart of that dispute—which goes to the underlying merits of the injunctions, regardless of their scope—is the meaning of the Court’s ruling in the 1898 case United States v. Wong Kim Ark. In that decision, the Court concluded that Wong Kim Ark, who was born and raised in San Francisco, was a U.S. citizen and therefore could not be prevented from returning to the United States after a visit to China. The Court held that the 14th Amendment, which says “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are U.S. citizens, “affirms the ancient and fundamental rule of citizenship by birth.”
Wong Kim Ark noted two traditional exceptions to that rule: for children of diplomats and children of foreign invaders. It recognized a third exception in the American context: Like those two other categories, the Supreme Court said, “members of the Indian tribes owing direct allegiance to their several tribes” were not subject to U.S. “jurisdiction” within the meaning of the 14th Amendment. “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,” the Court said. Apart from those three exceptions, in other words, anyone born in the United States automatically becomes a U.S. citizen.
That, at least, is the usual understanding of Wong Kim Ark. “The conventional wisdom, accepted over decades, is that Wong Kim Ark supports absolute birthright citizenship to everyone born in the United States,” former Attorney General Ed Meese concedes in a Supreme Court brief he filed in support of the Trump administration. But Meese argues that “the holding in this case does not go as far as the conventional wisdom would have you believe.”
In a separate brief, House Judiciary Committee Chairman Jim Jordan (R–Ohio) and 17 other members of Congress likewise argue that the plaintiffs in these cases—Trump v. CASA, Trump v. Washington, and Trump v. New Jersey—”overread Wong Kim Ark.” Other amici, including Tennessee Attorney General Jonathan Skrmetti, the attorneys general of 20 other states, and several conservative groups, offer similar arguments.
According to these defenders of Trump’s order, “the conventional wisdom” glides over the details of Wong Kim Ark. That decision, Meese says, “addressed a specific and narrow legal question: whether a child born in the United States to lawful permanent residents of Chinese descent was entitled to citizenship under the Fourteenth Amendment. It did not, despite the conventional wisdom over decades, reach the question whether children born to parents illegally present in the United States were entitled to citizenship under the Fourteenth Amendment.”
Wong’s parents were Chinese merchants who maintained a business at 751 Sacramento Street in San Francisco, where Wong was born sometime between 1871 and 1873, according to political scientists Carol Nackenoff and Julie Novkov’s 2021 book His parents, who were ineligible for citizenship under an immigration law that excluded Chinese immigrants from naturalization, returned to China in 1889. Wong, who had worked as a cook in California since he was 11, went with them.
The following year, Wong returned to San Francisco and was readmitted despite the Chinese Exclusion Act of 1882, which barred the entry of Chinese laborers, based on the understanding that he was “a native-born citizen of the United States.” But when he returned to the United States after another visit to China in 1895, he was denied reentry on the grounds that he was not a U.S. citizen.
To settle that issue, the Supreme Court delved into English common law, under which “aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador, or of an alien enemy in a hostile occupation of the place where the child was born.” That principle, the majority said, carried over to America, as reflected in colonial legislation, early judicial rulin
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