President Donald Trump's Executive Order cancelling Birthright Citizenship has taken the immigrant community by storm here in the US, where your favorite dormant lawyer currently reposes. Naturally, this development revokes TDL's dormancy temporarily...
The EO, issued within hours of President Trump taking the oath of office, states that the US Government shall not issue documents recognizing US citizenship to a person born in the US after 19th Feb 2025 if:
(1) the person's mother was unlawfully present in the US and the person's father was neither a citizen nor a permanent resident (i.e. a Green Card holder) of the US; or
(2) the person's mother was lawfully present in the US on a temporary visa and the person's father was neither a US citizen nor a permanent resident.
Such a "person" born in the US, then, would be prevented from becoming what is colloquially referred to as an "anchor baby" if the mum was an illegal immigrant to the US or was present in the US on a B1, B2, H1, H2, H4, L1, L2, etc visa, and the dad was not already a permanent resident or a citizen of the US.
In other words, for a baby born in the US after 19th Feb 2025 to be recognized as a citizen of the US by birthright, at least one of the baby's parents need to be either a citizen or a green card holder.
Unsurprisingly, the Executive Order was immediately challenged in the federal courts in at least 5 different lawsuits, with the one filed in conjunction by the states of Arizona, Illinois, Oregon & Washington becoming the first to receive a hearing. The suit came before John Coughenour, US District Judge, Western District, Washington State who proceeded to block the EO because it is prima facie violative of the 14th Amendment to the Constitution of the United States. Until the next hearing, set on 6th Feb 2025, this block is obviously a temporary "stay order", and there's a long way to go in this story yet. This gives us an opportunity to discuss Birthright Citizenship in the US in detail.
The story of the origin of birthright citizenship in the US is a very uniquely American tale, with its roots in that nation's original sin: slavery. The historical milestones in the granting of citizenship to all persons born in the US can be summarized as follows:
1857: The Dred Scott judgment, in which the Supreme Court of the United States ("SCOTUS" hereinafter) held that slaves were not US citizens
1861-65: The Civil War, during which President Abraham Lincoln freed slaves in the rebel states via the Emancipation Proclamation (1863) and then abolished slavery in the US via the 13th Amendment to the US Constitution (1865)
1866: The Civil Rights Act, which declared all persons born in the US (including the now-emancipated former slaves) to be citizens of the US
1868: The 14th Amendment, which enshrined the birthright citizenship clause of the 1866 Act into the Constitution
1898: The Wong Kim Ark judgment, in which the SCOTUS held that all persons born in the US, even those to non-citizen parents legally residing in the US, automatically became US citizens, thus expanding the purview of the 14th Amendment
1982: The Plyler judgment, in which a SCOTUS Justice's obiter dictum indicated that the Wong Kim Ark judgment extended even to children born to parents present in the US illegally, further expanding the scope of the 14th Amendment
2025: The Trump EO, which purports to overturn the Wong Kim Ark and Plyler precedents.
This chronology certainly suggests that the purpose of the 1866 enactment and the 14th Amendment (1868) was to extend birthright citizenship to previously enslaved people that were born in the US. It all began with the Dred Scott case (the SCOTUS's "Worst. Judgment. Ever." thanks to the influence of the nation's Worst. President. Ever.). Dred Scott was born a slave in Virginia in 1799 and had been sold in 1830 to Dr. John Emerson, a military surgeon then posted in St. Louis, Missouri but later stationed to "free" territories, viz. the state of Illinois, and the future state of Minnesota, where Scott married another slave, Harriet Robinson, and had two children. Emerson's widow inherited her husband's property (which included the Scott family) and had returned to St. Louis, where Dred Scott sued for his and his family's freedom in 1846, claiming they had automatically become free when their owner(s) had taken them to areas of the US where slavery was prohibited. The case eventually made its way from the Missouri courts to the US Supreme Court led by 79-year-old Chief Justice Roger Taney, which, in its most atrocious and outrageous decision ever, held in 1857 that Scott could not have filed suit in the first place, since he was not a citizen.
(Taney & Co also further erroneously and unnecessarily held that "free" status applied only to states that existed before the Constitution came into force; any states/territories added to the Union at a later date could not be prevented from practicing slavery, a notion that intensified the opposition to slavery in the Northern states since it effectively converted hitherto free states into slave states overnight and against the will of their citizenry, precipitating a reaction that led to the election of Abraham Lincoln to the presidency, which led to the consequent secession of the Southern states from the Union and to the outbreak of the Civil War. But that is not our legal research concern at this moment).
During the Civil War, the Emancipation Proclamation and the 13th Amendment to the US Constitution freed slaves and abolished slavery, and after the War the 1866 Civil Rights Act and the 14th Amendment to the US Constitution undid the legal wrongs inflicted by the Dred Scott judgment by ensuring that there would no longer be any doubt that not just Caucasians but also African Americans born in the US were citizens of the US. Let us now get into the nitty-gritty of the wording of the relevant clauses and explore the interpretations they may be subject to.
The 1866 Act states that “All persons born in the United States and not subject to any foreign power... are hereby declared to be citizens of the United States.” The relevant provision in the 14th Amendment is slightly modified and states "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 crucial phrases here are "not subject to any foreign power", and "subject to the jurisdiction [of the US]" respectively. which at that time were understood as "subject to the complete jurisdiction of the United States alone, and not of the US along with any foreign power." This remained the interpretation of the clause through various judgments (see SCOTUS judgments in the "Slaughterhouse Cases" of 1873 and Elk v. Wilkins of 1884) - a person born in the US and not owing allegiance to anyone else was a citizen of the US by birthright; a person born in the US to parents who were subject to the jurisdiction of some country other than the US was a citizen of that other country. It is this interpretation that the Trump EO tries to revert the jurisprudence to.
The strict reading of the "subject to the jurisdiction of the US" clause was however expanded by the US Supreme Court in 1898. Wong Kim Ark, born in 1873 in San Francisco's Chinatown, had repatriated to China with his parents in 1889. He was then denied re-entry into the US in 1894, with the local Collector of Customs ruling that he was not a US citizen since his parents were Chinese nationals, and hence "subject to a foreign power" and thus "not subject to the complete jurisdiction of the US". Wong sued for entry on grounds of citizenship, arguing that his parents had been "subject to the jurisdiction of the US" when they were living in San Francisco at the time of his birth, since all aliens owe allegiance to the laws of the foreign country they are residing in. This case too made its way up to the US Supreme Court, where a 6-2 decision held that the only people residing in the US that would not be subject to its jurisdiction were either (i) foreign envoys to the US enjoying diplomatic immunity; or (ii) enemy forces engaged in hostile occupation of US territory. These were the only categories of people on US soil who were subject completely to a foreign power and not at all to the jurisdiction of the US. Only children born to such individuals could be excluded from birthright citizenship. Wong was indeed a citizen, since at the time of his birth, his parents were indeed subject to the jurisdiction of the US. Per United States v. Wong Kim Ark, then, persons born in the US to parents who were in the US temporarily and legally (B1, B2, H1, H2, H4, etc) were US citizens.
This interpretation was further expanded, rather controversially, in Plyler v. Doe. When called upon to rule whether a Texas law preventing children of undocumented (i.e. illegal) immigrants from attending public schools was constitutional, the US Supreme Court in a razor-thin 5-4 decision not only struck down the law in question, but also Justice William J. Brennan, in footnote #10 to his majority opinion, stated:
given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.
Appearing in a footnote to an opinion dissented to by 4 of the Court's 9 Justices, including then Chief Justice Warren Burger, this line that says no distinction can be drawn between lawful and unlawful resident aliens is a great example of an "obiter dictum" - a remark made in passing, that is not binding and has only persuasive value. Yet it is this statement, hidden away in a footnote, that has gained the status of a ratio decidendi - the operative, binding part of a judgment - and allowed children born in the US to illegal immigrants automatically achieve citizenship.
The Dormant Lawyer, being an Indian citizen currently hibernating (but usually aestivating, since it's Texas), has no dog in the fight at all. But purely as a legal researcher at-large, here's what TDL believes might happen:
- Completely negating a constitutional amendment's long-standing interpretation through a mere Executive Order will not be easy. The federal government is unlikely to succeed in preventing the grant of birthright citizenship to persons born to legal (albeit temporary) immigrant mothers. This interpretation was not introduced in Plyler, and it is obvious that these persons and their mothers are indeed subject to the jurisdiction of the US. Also, the change in the wording from the 1866 Act ("not subject to any foreign power") to the 14th Amendment ("born or naturalized in the United States, and subject to the jurisdiction thereof") could further be argued to indicate that the intent of the legislature was to not exclude people that were also subject to other jurisdictions
- On the other hand, it will be very difficult for the challengers of the EO to succeed with respect to the 1st clause, viz. "the person's mother was unlawfully present in the US". The court is likely to utilize the reasoning in Wong Kim Ark, especially if the government lawyers argue that illegal immigrants, given their vast numbers, constitute an "invading army"; to a large extent, they are not subject to the jurisdiction of the US (e.g. theoretically they cannot even be allotted Social Security Numbers, except for the special case where they are asylum seekers who have then been explicitly granted work authorization, a not-straightforward procedure which takes months).
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