Civil rights advocates are anxiously awaiting an April 4th hearing at the US Supreme Court to consider the nature and scope of three lower court injunctions against the Trump administration’s executive order seeking to redefine birthright citizenship under the 14th Amendment. At question is the citizenship status of certain children born in the United States to non-citizen parents.
As a reminder of the historical context, Congress enacted the 14th Amendment to the United States Constitution on June 13, 1866. It was ratified on July 9, 1868, granting citizenship to all persons born or naturalized in the United States, including formerly enslaved people, and ensuring equal protection under the laws.
What may not be as familiar to us is the 1898 case of California resident Wong Kim Ark, a young Chinese cook whose petition was the first Supreme Court case to decide the status of children born in the United States to alien parents.
Wong was born in San Francisco to Chinese citizen parents. At age 21, he traveled to China to visit his family. When he attempted to return to the United States, Wong was denied entry under the Chinese Exclusion Act, a law banning virtually all Chinese immigration and prohibiting alien Chinese from becoming naturalized US citizens.
Wong challenged the federal government’s refusal to recognize his citizenship under the 14th Amendment, and the Supreme Court ruled 6-2 in his favor.
The Justice Department believes the Supreme Court needs to re-examine the birthright citizenship issue since “illegal immigrants” are considered by the Trump administration to be de facto criminals. Legal scholars disagree over whether the Wong Kim Ark precedent applies when alien parents are in the country without authorization or documentation.
The 14th Amendment guarantees citizenship for all children born in the United States, with the extremely narrow exception of children of foreign diplomats, regardless of race, color, or ancestry. Specifically, it states that “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.”
Many expectant couples across the United States are understandably anxious about the legal status of their newborns, who may be affected by a Trump executive order eliminating birthright citizenship.
In recent reporting, we’ve learned that a pregnant Indonesia citizen in New Hampshire has applied for asylum in the United States, and that application awaits review. The mom-to-be is in her third trimester. Under the new Trump executive order, the baby would be considered an undocumented non-citizen and not a US citizen. Also at issue is the newborn’s ability to qualify for a birth certificate in New Hampshire.
A message of exclusion
“Denying citizenship to U.S.-born children is not only unconstitutional — it’s also a reckless and ruthless repudiation of American values. Birthright citizenship is a key component of what makes the United States a strong and dynamic nation. This order seeks to repeat one of the gravest errors in American history by creating a permanent subclass of people born in the US who are denied full rights as Americans. We will not let this attack on newborns and future generations of Americans go unchallenged. The Trump administration’s overreach is so egregious that we are confident we will ultimately prevail,” said Anthony D. Romero, executive director of the American Civil Liberties Union.
Karla McKanders, director of Legal Defense Fund’s Thurgood Marshall Institute, stated, “By sidestepping the constitutional amendment process, this executive order attempts to unilaterally rewrite the 14th Amendment — an essential Reconstruction-era measure that granted citizenship to all persons born or naturalized in the US, including formerly enslaved people. This action seeks to resurrect a racialized notion of who is American.”
We reached out to former Los Angeles City Attorney Michael Feuer, who in 2017 famously challenged the first Trump administration’s detention and attempted deportation of Muslim travelers at LAX.
“Trump can’t eradicate birthright citizenship with the stroke of a pen,” said Feuer. “Our Constitution guarantees that every child born in America is equal under the law. In recent weeks, judge after judge, whether appointed by a Republican or a Democrat, has rebuked Trump and affirmed this principle —one that has stood for well over a century.”
Pasadena attorney Richard McDonald, of the Stoner Carlson LLP law firm, identified all the moving parts of the issue when he commented, “It is a very complex issue involving the use of nationwide injunctions by lower courts, the interpretation of the 14th Amendment, which the Supreme Court had not addressed in some time (and in different ways when it did), the role of executive orders, and the Supreme Court’s tendency to wait for a full record before deciding controversial issues.”
“It will be interesting to see how it turns out,” said McDonald.
