WASHINGTON (AP) — Federal courts have uniformly blocked President Donald Trump’s order seeking to end birthright citizenship for children born in the United States to someone in the country illegally or temporarily.
The Supreme Court is hearing arguments Wednesday in the Trump administration’s appeal of a ruling by a federal judge in New Hampshire who concluded that the executive order the Republican president signed on the first day of his second
term “likely violates the Fourteenth Amendment of the Constitution” and federal law.
Trump’s order was part of his administration’s broad crackdown on immigration, though the citizenship restrictions have never taken effect.
At issue is the meaning of the first sentence of the 14th Amendment, the Citizenship Clause, which makes citizens of “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”
Among the judges who have weighed in are the three liberal members of the Supreme Court, who have made clear they believe Trump’s order should be struck down. “With the stroke of a pen, the President has made a ‘solemn mockery’ of our Constitution,” Justice Sonia Sotomayor wrote in June, quoting from an 1809 opinion written by Chief Justice John Marshall. Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, dissented from a decision by the court’s six conservative justices that used an earlier round of the birthright citizenship dispute to limit the use of nationwide injunctions by federal judges.
Following the high court’s decision, judges have explained why they believe Trump’s birthright citizenship executive order is unconstitutional, out of step with long-established understandings of citizenship, contrary to a 126-year-old Supreme Court decision and at odds with the meaning of the 14th Amendment at the time it was adopted in 1868.
They also have written about why prohibiting the order from taking effect nationally is appropriate, even after the Supreme Court ruling on injunctions.
Here are excerpts from some of the opinions, as well as the 1898 Supreme Court case, United States v. Wong Kim Ark, that the judges have cited as the clearest precedent for their rulings:
Justice Horace Gray wrote the majority opinion in the 6-2 decision that Wong was a citizen by virtue of his birth on American soil:
“The real object of the Fourteenth Amendment of the Constitution, in qualifying the words ‘all persons born in the United States’ by the addition ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases, — children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state.”
″... The 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, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes."
“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."
In dissent, Chief Justice Melville Fuller wrote that Wong could not be a citizen because his parents still owed their allegiance to the Chinese emperor and could not be fully “subject to the jurisdiction” of the United States. Justice John Marshall Harlan joined the dissent.
“Children born in the United States and subject to its laws are United States citizens,” Sotomayor wrote.
The Trump administration, she noted, broke with its usual practice of asking for nationwide enforcement of the citizenship restrictions. “Why? The answer is obvious: To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice,” Sotomayor wrote.
The justice consulted a dictionary from 1865 to help define the key term at issue in the case, what it means to be “subject to the jurisdiction” of the United States. ”To be ‘subject to the jurisdiction’ of the United States means simply to be bound to its authority and its laws,” she wrote, providing the entry for “jurisdiction” in the American Dictionary of the English Language as “power of governing or legislating” or “the power or right of exercising authority.”
The answer to the legal question is easy, she wrote. “Few constitutional questions can be answered by resort to the text of the Constitution alone, but this is one. The Fourteenth Amendment guarantees birthright citizenship,” Sotomayor wrote.
Her opinion, however, drew only the three liberals’ votes. Justice Amy Coney Barrett, who wrote the majority opinion reining in nationwide jurisdictions, pointed out the limited nature of last year’s case.
“The principal dissent’s analysis of the Executive Order is premature because the birthright citizenship issue is not before us. And because the birthright citizenship issue is not before us, we take no position on whether the dissent’s analysis is right,” Barrett wrote.
U.S. District Judge Joseph N. LaPlante in New Hampshire, whose ruling is being reviewed by the Supreme Court, wrote in July: “The Executive Order likely violates the Fourteenth Amendment of the Constitution” and federal law. LaPlante applied his ruling to a nationwide class of children born to mothers who are in the United States illegally or temporarily. Denying citizenship to those children, LaPlante wrote, “would render the children either undocumented noncitizens or stateless entirely. ... The children would risk deportation to countries they have never visited.”
The following month, U.S. District Judge Deborah Boardman in the Washington suburb of Greenbelt, Maryland, stuck with her initial ruling in favor of immigrant rights groups and their clients challenging the order. “The Court reaffirms here its prior finding that ‘the Executive Order flouts the plain language of the Fourteenth Amendment to the United States Constitution, conflicts with binding Supreme Court precedent, and runs counter to our nation’s 250-year history of citizenship by birth.’ The plaintiffs are extremely likely to succeed on the merits of their claim that the Executive Order is unconstitutional,” Boardman wrote.
“Perhaps the Executive Branch, recognizing that it could not change the Constitution, phrased its Executive Order in terms of a strained and novel interpretation of the Constitution. The district court correctly concluded that the Executive Order’s proposed interpretation, denying citizenship to many persons born in the United States, is unconstitutional. We fully agree,” Judge Ronald Gould of the San Francisco-based U.S. Court of Appeals for the 9th Circuit wrote in July, joined by Judge Michael Daly Hawkins. The case involved a lawsuit filed by several states.
The executive order, Gould wrote, misreads American history. “The Defendants’ proposed interpretation of the Citizenship Clause relies on a network of inferences that are unmoored from the accepted legal principles of 1868. ... The Executive Order attempts to qualify and limit the plain language of the Constitution’s citizenship clause, which by its terms only says that a person born in the United States and subject to its jurisdiction is a citizen, by adding the notion that the person must be a child of a citizen or lawful permanent resident. ... We reject this approach because it is contrary to the express language of the Citizenship Clause, the reasoning of Wong Kim Ark, Executive Branch practice for the past 125 years, the legislative history to the extent that should be considered, and because it is contrary to justice.” he wrote.
Judge Patrick Bumatay dissented, saying he would have thrown out the lower-court ruling because he believes the states challenging the executive order had no right to sue. Bumatay did not comment on the ultimate legality of Trump’s order.
Judge David Barron of the U.S. Court of Appeals for the 1st Circuit in Boston spent 100 pages laying out his opinion for a unanimous three-judge panel in October. “But the length of our analysis should not be mistaken for a sign that the fundamental question that these cases raise about the scope of birthright citizenship is a difficult one,” Barron wrote. “It is not, which may explain why it has been more than a century since a branch of our government has made as concerted an effort as the Executive Branch now makes to deny Americans their birthright.”
Reaching back to the Supreme Court’s Dred Scott decision that barred Black Americans, free or enslaved, from being citizens and led to the adoption of the 14th Amendment, Barron wrote, “Our nation’s history of efforts to restrict birthright citizenship ... has not been a proud one."
“The ‘lessons of history’ thus give us every reason to be wary of now blessing this most recent effort to break with our established tradition of recognizing birthright citizenship and to make citizenship depend on the actions of one’s parents rather than -- in all but the rarest of circumstances -- the simple fact of being born in the United States. Nor does the text of the Fourteenth Amendment, which countermanded our most infamous attempt to break with that tradition, permit us to bless this effort, any more than does the Supreme Court’s interpretation of that amendment in Wong Kim Ark, the many related precedents that have followed it, or Congress’s 1952 statute writing that amendment’s words in the U.S. Code,” he wrote.
