What to know as Supreme Court takes up birthright citizenship question

The Supreme Court on Wednesday will hear arguments over President Donald Trump’s plan to end birthright citizenship for hundreds of thousands of children of parents here illegally or temporarily.

At issue is an Inauguration Day executive order, signed but never enforced because it was immediately challenged in the courts, that is part of the president’s broader immigration crackdown. The Trump administration has said the order would fulfill the original intent of the Citizenship Clause of the Constitution's post-Civil War 14th Amendment, which makes citizens of "all persons born or naturalized in the United States, and subject to the jurisdiction thereof."

Administration lawyers argued in a brief this year that the clause was never intended to grant citizenship universally to everyone born in the country. Rather, they wrote, it was "adopted to grant citizenship to freed slaves and their children — not to children of temporarily present aliens or illegal aliens."

Established law

For more than a century, though, the language has been widely understood to apply with only narrow exceptions, like those for the children of visiting diplomats or invading armies. Administration lawyers are appealing a ruling by a federal judge in New Hampshire who concluded that the executive order "likely violates the Fourteenth Amendment of the Constitution" and federal law.

In an interview, James Sample, constitutional law professor at Maurice A. Deane School of Law at Hofstra University, said the administration’s case lacked merit. The clearest precedent, he said, was an 1898 Supreme Court case, United States v. Wong Kim Ark, in which the court found for Ark, a San Francisco man born to Chinese parents who was turned away from the United States by immigration officials after a visit to China.

"That established clearly that, in the Supreme Court’s view, the language of the 14th Amendment meant that a child born in the United States, including to immigrants, whether documented or not, was a citizen."

A ruling that overturned this precedent, Sample said, would mark a fundamental change to the American identity.

"The notion of birthright citizenship is one of the things that distinguishes us from other countries where citizenship is often a function of lineage," he said. Moreover, as Sample wrote in a Substack essay, "the path to revising birthright citizenship is laid out plainly in the Constitution itself — not through executive decree, but through the arduous process of amending the document. ... The Constitution is not an-all-the-executive-can-eat buffet."

In an interview Sample’s colleague Alexander Holtzman, the director of the law school's Deportation Defense Clinic, argued that "subject to the jurisdiction" portion of the clause suggested broad applicability: "Think about all the ways noncitizens are of course subject to U.S. laws. ... There’s sales tax every time you buy a stick of gum, income tax, traffic laws, local laws."

Trump administration view

But lawyers for the Trump administration argue that people in the United States illegally or temporarily are not "subject to the jurisdiction" of the United States as that phrase is used in the Constitution. According to the administration, the clause extends only to those who are "completely subject" to the nation’s "political jurisdiction" by virtue of owing "direct and immediate allegiance" to the United States. As the lawyers wrote in their brief: "Children of alien parents who are domiciled elsewhere, and are only temporarily present in the United States, owe primary allegiance to their parents’ home countries, not the United States."

An overly expansive "misinterpretation" of the clause, they wrote, has "powerfully incentivized illegal entry into the United States and encouraged ‘birth tourists’ to travel to the United States solely to acquire citizenship for their children."

Some conservative legal scholars agree. In a piece that originally appeared on Fox News, the conservative Heritage Foundation’s Amy Swearer and Hans A. von Spakovsky argued that the Ark case, far from establishing universal birthright citizenship, must be understood alongside other 19th century cases that restricted citizenship on grounds of allegiance.

"The Supreme Court has never definitively addressed" birthright citizenship, they wrote. "Trump’s order is a much-needed and long-overdue course correction, reversing a decadeslong policy that was never constitutionally mandated in the first place."

Holtzman said that the case was already creating anxiety for people who could be negatively affected by a court ruling, which could come as early as this summer.

"I’ve had clients who’ve asked me, ‘Are my children safe, or who are pregnant and wonder if their children will be safe."

With The Associated Press

By Nicholas Spangler

nicholas.spangler@newsday.comspanglernewsday

Nicholas Spangler is a general assignment reporter and has worked at Newsday since 2010.