The Case That Could Upend Who Gets to Be an American Is Back at the Supreme Court
Next week, the Trump administration’s bid to deny birthright citizenship to the US-born children of undocumented immigrants and non-green card holders through an executive order will arrive at the Supreme Court—yet again. Last year, the justices didn’t address the constitutionality of the order directly; instead, they ruled on a procedural question to limit the power of federal judges to block the government’s actions nationwide. Now, in Trump v. Barbara, the Court is asked to determine whether the administration’s rewriting of the Constitution has merit.
With its executive order, the government is claiming to want to restore the original meaning of the 14th Amendment’s citizenship clause, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof” are citizens of the country. In a brief to the Supreme Court, the administration argues that the amendment—ratified in 1868 in repudiation of the Dred Scott decision that declared Black Americans couldn’t be citizens—specifically intended to extend citizenship to the children of former slaves and their descendants, but not of undocumented immigrants and temporary visitors.
Most constitutional law scholars and historians disagree, pointing to longstanding tradition, legislative history, and legal precedent that support a broad understanding of the citizenship clause. (An understanding that includes extremely narrow exceptions, such as for the children of foreign diplomats and enemy invaders.) The courts have also resoundingly rejected the Trump administration’s executive order, finding it unconstitutional in light of the plain 14th Amendment text.
The highest court has grappled with challenges to birthright citizenship before—and turned them down. In the late 19th century, at a time of rampant anti-Chinese bias, immigration restrictionists and the federal government argued that Wong Kim Ark, born in the United States to Chinese parents who couldn’t become naturalized due to exclusion laws, didn’t have a claim to citizenship. The dispute made its way to the Supreme Court and resulted in a landmark ruling reaffirming that the 14th Amendment applies to virtually everyone born on US soil, regardless of parentage.
Ahead of the oral arguments before the Supreme Court on April 1, I spoke with Cody Wofsy, deputy director of the ACLU Immigrants’ Rights Project and counsel on record in the Trump v. Barbara........© Mother Jones
