If a person is born in the United States, then that person is a U.S. citizen automatically, regardless of their race, color, creed or religion. It is called birthright citizenship, and President Trump wants it abolished.
As part of his anti-immigration agenda, Trump has issued an Executive Order ending birthright citizenship. A federal judge has temporarily blocked his order. Trump has appealed, and the case is undoubtedly heading to the Supreme Court. In that Trump-friendly venue, with a 6-3 conservative super-majority it is unlikely but possible the High Court will agree with Trump. I am worried.
Why do we have birthright citizenship? Flashback to 1857. In the Supreme Court’s repulsive Dred Scott decision, the Court held that no Black person, slave or free, even those born here, could ever be a full U.S. citizen.
Once the Confederacy was defeated, the 14th Amendment was ratified in 1868, making clear that if you were born here, you are a full U.S. citizen with all the rights and privileges of other citizens. The Citizenship Clause of the 14th Amendment seems unequivocal.
“All persons, born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”
Regardless of your race or who your parents are or where they come from, if you were born on American soil, then you are a birthright U.S. citizen. That is the case whether your mother was just visiting at the time or a student or a migrant farm worker, if you were born in the USA, you are a U.S. citizen. (The lone exception are children of accredited diplomats, envoys and ambassadors).
There are examples of birth tourism attempting to take advantage of America’s generosity of spirit. In California in 2020 a group of pregnant Chinese nationals were coached on how to get tourist visas so they could come to America for the real purpose of giving birth on U.S. soil, “See Los Angeles, Have a U.S. Citizen Baby.” The pregnancy tours have since been shut down, the operators prosecuted.
President Trump wants to end it all, with enormous humanitarian consequences. The Pew Research Center estimated in 2022 that 1.3 million U.S.-born adults are children of illegal immigrants.
The landmark case on which their birthright citizenship relies is United States vs. Wong Kim Ark (1898). The court ruled that despite the fact Wong’s parents were only in the U.S. temporarily at the time of his birth, Wong automatically became a citizen because he was born here.
But what if Wong’s parents were here illegally? It has not made a difference until Trump. But the conservative super majority of the current Supreme Court could be inclined to overrule or evade 127 years of legal precedent by interpreting the Constitution as denying birthright citizenship to the children of illegal immigrants.
Most legal scholars believe the 14th Amendment is ironclad protection against Trump and in favor of birthright citizenship. Most legal scholars also believed that presidents could not have immunity from criminal prosecution. Ask failed former Special Prosecutor Jack Smith how that turned out.
