The past three weeks have been busy ones for the Supreme Court as it has issued decisions on several important cases, but none more significant than Trump v. Barbara, which struck down President Trump’s executive order seeking to end birthright citizenship.
Since the passage of the 14th Amendment, citizenship has, in most cases, been granted to anyone born in the United States. However, some scholars, along with President Trump, have challenged that understanding based on a clause in the 14th Amendment, which reads, “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.” The phrase in question is “subject to the jurisdiction thereof.” Trump argued that people entering the United States illegally are not subject to its jurisdiction and, therefore, their children are not citizens. In Trump v. Barbara, the Court ruled that children born in the United States to parents who are unlawfully or temporarily present are protected by the Constitution’s Citizenship Clause and are U.S. citizens at birth, rejecting the administration’s effort to narrow birthright citizenship.
Conservative justices often rely on originalism or on how the authors of the original law would apply it to the current case. However, that is difficult with this case because when the 14th Amendment was ratified in 1868, there was no distinction between legal and illegal immigration, making it difficult to determine how its authors would have applied the Citizenship Clause to today’s circumstances. As a result, much of the Court’s analysis rested on precedent, particularly Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898).
As I have considered the 14th Amendment over the years, I have always been drawn to the fact that it did not apply to Native Americans. Even though they were born on American soil, they were not considered citizens until 1924 because, as citizens of sovereign tribal nations, they were not considered “subject to the jurisdiction” of the United States. As an originalist myself, this has always suggested to me that the authors of the 14th Amendment would not have considered foreign citizens who were in the country illegally to be fully under the nation’s jurisdiction. In 1884, the Supreme Court appeared to agree with that reasoning in Elk v. Wilkins.
In 1880, John Elk, a member of the Winnebago Nation, attempted to register to vote. Elk had intentionally severed his tribal ties, moved off the reservation, paid taxes, and fully integrated into American society. Despite this, local officials denied him the right to vote because he was not considered a citizen. Justice Horace Gray, writing for the Court, argued that birth within the geographic boundaries of the United States was insufficient to confer citizenship under the 14th Amendment because Elk owed his primary political allegiance to his tribe at the time of his birth.
Fourteen years later, in 1898, the Supreme Court faced a similar question under different circumstances. Wong Kim Ark was born in San Francisco in 1873 to Chinese immigrant parents who were lawfully residing and conducting business in California. In 1895, after returning from a temporary visit to China, immigration officials denied Wong reentry into the United States. Under the Chinese Exclusion Act of 1882, Chinese laborers were barred from immigrating and prevented from becoming naturalized citizens. The government argued that because Wong’s parents were ineligible for citizenship, Wong himself could not claim birthright citizenship.
The Court ruled in Wong Kim Ark’s favor, firmly establishing the doctrine of jus soli or birthright citizenship based on place of birth. Gray again wrote the majority opinion. He reasoned that because Wong’s parents were lawfully domiciled in the United States, conducted business here, paid taxes, and were subject to American laws and courts, they were “subject to the jurisdiction” of the United States. Therefore, their son was a citizen by birth. The Court held that a parent’s race, nationality, or eligibility for naturalization could not diminish a child’s constitutional right to citizenship if born on American soil.
The same Court appears to apply the law differently in these two cases. In Elk v. Wilkins, the Court viewed jurisdiction through the narrow lens of political allegiance and sovereignty. In United States v. Wong Kim Ark, however, the Court embraced a broader territorial understanding of jurisdiction. Under that interpretation, anyone born within the physical boundaries of the United States was subject to U.S. jurisdiction unless they fell within one of four recognized exceptions: children of foreign diplomats, children born on foreign sovereign ships in U.S. waters, children of hostile invading forces occupying U.S. territory, and members of Native American tribes.
As one would expect, the six justices who rejected President Trump’s executive order relied primarily on United States v. Wong Kim Ark, while the dissenters found Elk v. Wilkins more persuasive.
There is, however, one important aspect of the Trump v. Barbara decision that I have not seen discussed very much. This case involved an executive order, and the Court ruled that the president cannot unilaterally redefine birthright citizenship. But Section 5 of the 14th Amendment states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
For years in this column I have argued against most executive orders, even when I agree with them, because they concentrate too much power in the hands of the President. Based on Justice Brett Kavanaugh’s concurring opinion, he appears to leave open the possibility that Congress could attempt to limit birthright citizenship through legislation rather than executive action. He did not say such a law would necessarily be constitutional, only that Congress, not the President, would be the proper branch to test that question.
Whether Congress could pass such legislation is another matter. While the current House of Representatives might be able to approve a bill, it is difficult to imagine it receiving enough support to pass the Senate. Nevertheless, if Kavanaugh’s reading ultimately gains traction, birthright citizenship could become a major issue in the upcoming midterm elections.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at james.finck@swoknews.com. Thanks to the Southwest Ledger and the Lawton Constitution for sharing his column.
