On his first day back in office, President Trump issued an executive order (EO) that attempted to limit the scope of “birthright citizenship”, which in turn has sparked a national debate. The Supreme Court has recently decided to take up the question in its current term and, conveniently, the Wall Street Journal on Saturday ran an article that underscores why the current, expansive view that nearly all babies born in this country are U.S. citizens at birth may not be a perfect fit for the modern age.
Dred Scott and the 14th Amendment
Congress has “plenary power” over immigration because Article I, sec. 8, cl. 4 of the U.S. Constitution gives the legislative branch the authority “To establish an uniform Rule of Naturalization”. Simply put, you can’t have a uniform rule governing which aliens can naturalize — that is be transformed into citizens — without rules governing which aliens are allowed in, and which must leave.
The parameters of U.S. citizenship, on the other hand, are set forth in the first sentence of section 1 of the 14th Amendment to the U.S. constitution, which 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 14th Amendment wasn’t ratified until July 1868, prior to which, with one big exception, citizenship was determined according to common law principles, pursuant to which “all free persons born within a state or nation were citizens thereof”.
The big exception was the Supreme Court’s 1857 opinion in Dred Scott v. Sandford.
Scott had been an enslaved person in Missouri but later lived in Illinois (a “free” state) and in a part of the Louisiana Territory where slavery was outlawed by the Missouri Compromise of 1820. He sued seeking his freedom, claiming that he became free as a matter of law during his time in the Midwest.
Chief Justice Roger Taney, for the majority, concluded that “neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were ... acknowledged as a part of the people” under the Declaration of Independence or in “the legislation and histories of the times”. Thus, Scott couldn’t sue in a federal court.
To overrule Dred Scott, Congress enacted the Civil Rights Act of 1866, which stated that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States”.
Notice how I said, “Congress enacted”, not “Congress passed and the president signed”.
After President Lincoln was assassinated in April 1865, he was succeeded by his vice president, Andrew Johnson, a Democrat from the antebellum slave state of Tennessee who ran with Lincoln on the “Union” ticket.
Johnson vetoed the Civil Rights Act of 1866, which Congress overrode, a fact that made Republicans concerned that a future Congress would repeal the act entirely. Consequently, it took steps to include similar language when it considered the draft of the 14th Amendment.
Notably, however, the second clause in the 1866 act differs slightly from the same clause in the 14th Amendment: “not subject to any foreign power” vs. “subject to the jurisdiction thereof [the United States]”. Whether that makes any difference is still unresolved.
U.S. v. Wong Kim Ark
The judicial branch has long accorded itself the authority to interpret the laws and, in 1898, it took a crack at deciphering the first line of the 14th Amendment in U.S. v. Wong Kim Ark.
Wong was born in San Francisco in 1873 to Chinese national parents living legally in the United States with the 19th century version of green card status. He later took a brief trip to China, and when he returned in August 1895, he was stopped by Customs officials and detained.
He filed a petition for habeas corpus to be released from custody, and eventually the matter made its way to the Supreme Court on the question of whether Wong was a U.S. citizen under the 14th Amendment and thus entitled to be admitted.
A majority of the Court concluded he was, explaining:
The 14th 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 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.
Respectfully, if the 14th Amendment were written “in clear words and in manifest intent”, no court would need to interpret it, but regardless the Court’s extrapolations about the citizenship of individuals who aren’t the children of permanent residents are essentially dicta, that is, instructive but not dispositive on the question of who’s a citizen at birth.
Nonetheless, Wong Kim Ark has driven a popular conception that everyone born in this country, with only teeny-tiny exceptions, is a citizen.
But there are good arguments for why the drafters of the 14th Amendment weren’t driven by “ancient and fundamental rules of citizenship” at all, not the least of which being that such rules were grounded in feudalist principles whereas the amendment wiped away the last U.S. feudalistic institution, slavery.
Elk v. Wilkins
More than a decade before Wong Kim Ark, the Supreme Court interpreted the first line of the 14th Amendment in a different case, Elk v. Wilkins.
John Elk was a Winnebago Indian by birth, but he deliberately severed his ties to that tribe and moved to Omaha, Neb., where he “spoke English, paid taxes, and then”, in 1880, “tried to vote”.
The defendant, city official Charles Wilkins, refused to register Elk as a voter, and Elk sued seeking $6,000 in damages (roughly $190,000 today, showing just how precious the franchise is).
It wasn’t until the passage of the Indian Citizenship Act of 1924 that Congress expressly gave citizenship to all Native Americans, and the sole reason why Wilkins wouldn’t register the plaintiff was that Elk “was an Indian, and therefore not a citizen of the United States”.
Thus, the sole issue for the Court was whether Elk was a citizen under the 14th Amendment. Justice Gray, writing for the majority, answered that question in the negative, in part based on “the principle that no one can become a citizen of a nation without its consent”.
Gray specifically relied on three treaties that had been entered into by the U.S. government and Kansas-based Indian tribes while the 14th Amendment was in the ratification process. Each contained “provisions for the naturalization of members of Indian tribes as citizens of the United States”.
Those treaties represented the “consent” Gray was talking about, but none covered the Winnebago.
Elk raises the question, however, of whether under the 14th Amendment the federal government can withhold its consent to the citizenship of children born here, and in particular to children born to aliens who entered the country without its consent.
“Protecting the Meaning and Value of American Citizenship”
On January 20, President Trump forced that question when he issued EO 14160, “Protecting the Meaning and Value of American Citizenship”.
That EO declared that certain “categories of individuals will no longer be considered to be born ‘subject to the jurisdiction’ of the United States and therefore will no longer be U.S. citizens at birth”.
Those categories are children born to mothers who were “unlawfully present” or whose presence was “lawful but temporary” and fathers who weren’t either U.S. citizens or lawful permanent residents (i.e., “green card holders”).
Note that the EO is purely prospective, in that it only covers children born after the effective date of the order, February 20, 2025. Nobody born before that date would lose citizenship, but those born after would not gain it.
Barbara v. Trump
That EO has been subject to various injunctions and therefore has not yet taken effect.
Despite that fact, the Supreme Court has already used one of those cases, Trump v. CASA, to restrict the usage of so-called “universal injunctions”, which lower courts had used to bar actions in federal districts far removed from the one issuing the order.
On December 5, however, the Court agreed to tackle the issue head-on, granting certiorari in Trump v. Barbara.
Barbara is a case out of the U.S. District Court for the District of New Hampshire (D. N.H.), and on July 10, a D. N.H. judge issued an order granting a preliminary injunction barring the application of EO 14160 to a preliminary class of individuals born in this country who would not be considered U.S. citizens under that order.
Let’s just say that food stamps and other federal benefits are on the line.
In any event, the government asked the Supreme Court to consider the injunction in Barbara “before judgment”, that is without asking the First Circuit to weigh in first, and the justices agreed.
The sole question presented in Barbara is whether EO 14160 “complies on its face with the Citizenship Clause”, which is the first line of the 14th Amendment, “and with” section 301(a) of the Immigration and Nationality Act (INA), “which codifies that Clause” (and essentially mirrors it).
“The Chinese Billionaires Having Dozens of U.S.-Born Babies via Surrogate”
Almost on cue, the Wall Street Journal ran an article on December 13 that uncovered a market that Sino business titans abroad are using to father veritable tribes of children born in this country via surrogate mothers in the United States.
One such father, Chinese national Xu Bo, is described as a billionaire “maker of fantasy videogames” who “is known in China as a vocal critic of feminism”.
Xu’s company has apparently claimed “he has more than 100 children born through surrogacy”, though Xu himself reportedly told a state court in California (where he appeared via video from China) that he simply “hoped to have 20 or so U.S.-born children through surrogacy — boys, because they’re superior to girls — to one day take over his business”.
“Several” of Xu’s kids are being looked after “by nannies in nearby Irvine as they awaited paperwork to travel to China”, though the proud paterfamilias told the court he’d been too busy at work to meet them yet.
The Journal continues: “Another wealthy Chinese executive, Wang Huiwu, hired U.S. models and others as egg donors to have 10 girls, with the aim of one day marrying them off to powerful men, according to people close to the executive’s education company.”
Morality aside, these guys are plainly playing a long game, but in any event here’s the kicker in the Journal article:
The market has grown so sophisticated, experts say, that at times Chinese parents have had U.S.-born children without stepping foot in the country. A thriving mini-industry of American surrogacy agencies, law firms, clinics, delivery agencies and nanny services — even to pick up the newborns from hospitals — has risen to accommodate the demand, permitting parents to ship their genetic material abroad and get a baby delivered back, at a cost of up to $200,000 per child.
At what point did America “consent” to become the assembly plant for newborn U.S. citizens who after delivery are stamped and shipped for a second delivery to parents abroad? I’ve been voting for four decades and trust I wouldn’t have missed that proposition on the ballot.
We’re Not in Omaha — or Even San Francisco — Anymore
My stock line, when asked what it was like to be an immigration judge, is the following: “I put on an 18th century outfit to apply 19th century principles to a 21st century world.” If I drop it on you in the future, just indulge me and act like you haven’t heard it before.
It’s true, though. The black robe commemorates the 1714 death of Queen Anne (more colorful judicial wear preceded it), “moral turpitude” is a classic Victorian concept, and even the drafters of the original INA (in 1952) had no idea how technology would drive human depravity to new depths.
Constitutional amendments, however, are supposed to be evergreen, applying in the same way today as they did when their authors first penned them, as refined by how the states viewed them at the time of ratification.
Likely few involved in the ratification of the 14th Amendment in July 1868 ever imagined that millions of aliens would pour illegally into this country and give birth here, any more than they could have foreseen an industry fueled by Chinese elites seeking to have U.S. citizen children without stepping foot in this country.
I don’t believe in (and largely fear) the concept of a “living Constitution” that’s reassessed and rewritten by courts every few years, but I also think the drafters of the 14th Amendment understood that not every future peg would fit neatly in the citizenship slot they had created.
Elk showed that 14th Amendment citizenship wasn’t as expansive as one former member of the Winnebago Tribe then living in Omaha believed it should be, but Wong Kim Ark revealed it was more expansive than the San Francisco Customs director thought it was.
That’s not “living Constitution”; it’s applying laws to facts, which judges and other federal officials do thousands of times every day, and what I did while wearing three pounds of black wool in mourning for her late majesty.
The Ultimate Question
The courts in both Elk and Wong Kim Ark established that the Citizenship Clause in the 14th Amendment is subject to interpretation, so logically the current justices in Barbara will find that they can interpret it as well.
The Court likely won’t simply bless the interpretation in EO 14160 (though a majority may, given that they focus on things I never predict). Instead, consistent with their past opinions on a variety of issues, look for the Court to instead set out a framework for how that clause can be interpreted.
Perhaps that means legislation that could limit the scope of citizenship under the 14th Amendment, or conversely legislation that defines how broadly that amendment citizenship applies. Section 301(a) of the INA would have been a great opportunity to interpret “subject to the jurisdiction thereof”, but Congress punted instead.
Legislation would be more permanent than making such distinctions by executive orders that can be quickly repealed, but admittedly less effective than a constitutional amendment.
On the other hand, acceding to the president’s authority to define 14th Amendment citizenship could break the logjam of immigration-related issues that have been on a low boil in Congress for decades.
Even exclusive of the 14th Amendment, Congress through legislation can convey citizenship on any erstwhile alien it wants (which is why those born in Puerto Rico, the Virgin Islands, and Guam are citizens), and it would likely be called on to grant citizenship to a few left out by a SCOTUS-blessed EO 14160.
During that process, a lot of compromises on several related issues would likely be struck. If Republicans were asked to hand out citizenship to kids of nonimmigrant mothers, for example, they could probably seek some asylum fixes or family-based immigration reforms in exchange.
By issuing his birthright citizenship order, Donald Trump forced the judicial branch to return to legal questions it hasn’t addressed in more than a century. The world, technology, and immigration have changed a lot in the interim, and the ultimate question is whether the Constitution can keep up.