The recently released Supreme Court opinion on the birthright citizen case (Trump vs. Barbara) is rich with fact, emotion, logic, illogic, insult, and passion. There are no less than six separate written opinions (Roberts, Jackson, Thomas, Alito, Gorsuch, Kavanaugh), all of them eminently readable and edifying.
After reading all six of these opinions, it is obvious there is no consensus on this topic. It is another case of trying to reconstruct what was going through the minds of Congressman, Senators, and Presidents who lived 160 years ago. It is always fascinating in these cases how experienced and educated legal minds of today can come to such diametrically opposed conclusions about what their predecessors were thinking back then.
For this case, the applicable sentence of the 14th Amendment is – “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.” In the opinion of five of the nine Justices, only two classes of people were not “subject to the jurisdiction thereof” – Tribal Indians and the children of foreign diplomats. Trump’s executive order sought to also deny citizenship to children of temporary foreign visitors and children of illegal aliens. Since these new groups do not belong to one of the two exception classes recognized by the majority’s view of the 14th amendment, they ruled Trump’s order unconstitutional.
On the surface, that seems straightforward. However, a natural question arises – how did the majority identify the two exception cases and, more importantly, how did they conclude these were the only possible exception cases. This is the point of primary contention which begat 200 pages of formal opinion.
The majority justifies its position with the presumption that this section of the 14th Amendment derives from 17th century British “common law” which states that any person born within the King’s realm is forever a subject of the Kingdom. The two exception cases in the American version (defined more clearly in the 1866 Civil Rights Act) arose because there were no native “Indians” for the King to contend with in England, and the incidence of foreign Ambassadors having children while residing in England was exceedingly rare at that time. An 1898 Supreme Court case referred to as Wong Kim Ark1 added three additional birthright citizenship exception cases2 to the original two cited above.
The dissenters argue that British common law, along with all other laws and allegiances to England and its rulers, were jettisoned in America with the elegant words of the Declaration of Independence and the violent bloody battles of the Revolutionary War. The words of the Constitution and all the Amendments that followed were born of independent American thought, not copied from England. Justice Thomas in particular provides a great volume of supporting evidence that in addition to being born on US soil, citizenship in the US was contingent on a presumption of established “domicile”, for parents and child.
While the Wong Kim Arc case is cited by the majority as the prevailing precedent for birthright citizenship, the language of its ruling actually supports the dissenter’s argument. Repeatedly throughout the opinion of the court are references to the presumption of domicile (parents and child) as a condition of birthright citizenship. If this 1898 court precedent was followed as written, Trump’s proposed ban on automatic citizenship for children born to temporary (un-domiciled) travelers in the US would be perfectly valid.
Two major laws were passed just before and just after the 14th Amendment, the Civil Rights Act of 1866 and the Enforcement Act of 1870. In both those laws the phrase “not subject to any foreign power” was used instead of the phrase “subject to the jurisdiction thereof” when reiterating the exception case for birthright citizenship. Since the same Congress wrote all three laws, we have a much clearer indication of the intended meaning behind “subject to the jurisdiction thereof”.
With that clarity, Justice Alito points out that at least some of the children of illegal aliens are subject to a foreign power immediately upon their birth in the US. He points to the example of the children of Mexican parents who, according to Mexican law, automatically become Mexican citizens upon birth, no matter where in the world they are born. Upon turning 18, male Mexican citizens are required to register for the military. If they don’t, they will be arrested and could spend up to a year in prison. This penalty applies no matter where in the world that 18-year-old Mexican male is living. This would certainly make a Mexican male child born in the US subject to a foreign power.
In the end, Justice Kavanaugh had the most pragmatic opinion. He agreed with Alito, Gorsuch, and Thomas that Trump’s order was constitutional. Therefore, the next step in determining the ultimate legality of the order is if it is consistent with legislative acts and court precedent. On this score, Kavanaugh sided with the majority since he could not reconcile Trump’s order with the set of exception cases to birthright citizenship listed in the Wong Kim Arc case.
However, in his written opinion, Kavanaugh did provide a roadmap for how Congress can proceed if they choose. The citizenship exceptions listed in Wong Kim Arc were later embodied in the Immigration and Naturalization Acts of 1940 and 1952. Justice Kavanaugh suggests that all Congress needs to do is amend those laws to add Trump’s additional exception cases. That should presumably pass muster with the courts. We’ll see.
1 Wong Kim Arc was a Chinese person born in San Francisco in 1873 to non-citizen parents who had been legally living in the US for sometime. Upon returning from a visit to China in 1894, Wong was not permitted to clear customs since the US Government decided he was not a citizen. He filed suit, and his case made it to the Supreme Court, ultimately resulting in his citizenship being recognized.
2 In its final form, the Wong Kim Arc case listed five exceptions to birthright citizenship. These were later rolled into the Immigration and Nationality Acts of 1940 and 1952.
- Children of members of the Indian tribes owing direct allegiance to their several tribes
- Children of foreign ministers
- Children of foreign sovereigns
- Children born on foreign public ships
- Children of enemies within and during a hostile occupation of part of our territory