Defenders of Trump's Birthright Citizenship Order Offer an Implausible Take on a 127-Year-Old Precedent
Briefs urging the Supreme Court to stay injunctions against the order challenge "the conventional wisdom" about the meaning of an 1898 decision interpreting the 14th Amendment.
On Thursday, the U.S. Supreme Court will hear arguments regarding three preliminary injunctions against a January 20 executive order that purported to eliminate birthright citizenship except for children of U.S. citizens or lawful permanent residents. The main issue is whether the Court should issue stays that limit the injunctions to the plaintiffs who sought them, including named members of organizations that challenged President Donald Trump's order. But the Trump administration also has argued that all three judges erred in concluding that the edict flouted longstanding Supreme Court precedent, and several briefs supporting the government's stay applications echo the implausible claim that the order is consistent with the relevant case law.
At the heart of that dispute—which goes to the underlying merits of the injunctions, regardless of their scope—is the meaning of the Court's ruling in the 1898 case United States v. Wong Kim Ark. In that decision, the Court concluded that Wong Kim Ark, who was born and raised in San Francisco, was a U.S. citizen and therefore could not be prevented from returning to the United States after a visit to China. The Court held that the 14th Amendment, which says "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are U.S. citizens, "affirms the ancient and fundamental rule of citizenship by birth."
Wong Kim Ark noted two traditional exceptions to that rule: for children of diplomats and children of foreign invaders. It recognized a third exception in the American context: Like those two other categories, the Supreme Court said, "members of the Indian tribes owing direct allegiance to their several tribes" were not subject to U.S. "jurisdiction" within the meaning of the 14th Amendment. "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," the Court said. Apart from those three exceptions, in other words, anyone born in the United States automatically becomes a U.S. citizen.
That, at least, is the usual understanding of Wong Kim Ark. "The conventional wisdom, accepted over decades, is that Wong Kim Ark supports absolute birthright citizenship to everyone born in the United States," former Attorney General Ed Meese concedes in a Supreme Court brief he filed in support of the Trump administration. But Meese argues that "the holding in this case does not go as far as the conventional wisdom would have you believe."
In a separate brief, House Judiciary Committee Chairman Jim Jordan (R–Ohio) and 17 other members of Congress likewise argue that the plaintiffs in these cases—Trump v. CASA, Trump v. Washington, and Trump v. New Jersey—"overread Wong Kim Ark." Other amici, including Tennessee Attorney General Jonathan Skrmetti, the attorneys general of 20 other states, and several conservative groups, offer similar arguments.
According to these defenders of Trump's order, "the conventional wisdom" glides over the details of Wong Kim Ark. That decision, Meese says, "addressed a specific and narrow legal question: whether a child born in the United States to lawful permanent residents of Chinese descent was entitled to citizenship under the Fourteenth Amendment. It did not, despite the conventional wisdom over decades, reach the question whether children born to parents illegally present in the United States were entitled to citizenship under the Fourteenth Amendment."
Wong's parents were Chinese merchants who maintained a business at 751 Sacramento Street in San Francisco, where Wong was born sometime between 1871 and 1873, according to political scientists Carol Nackenoff and Julie Novkov's 2021 book His parents, who were ineligible for citizenship under an immigration law that excluded Chinese immigrants from naturalization, returned to China in 1889. Wong, who had worked as a cook in California since he was 11, went with them.
The following year, Wong returned to San Francisco and was readmitted despite the Chinese Exclusion Act of 1882, which barred the entry of Chinese laborers, based on the understanding that he was "a native-born citizen of the United States." But when he returned to the United States after another visit to China in 1895, he was denied reentry on the grounds that he was not a U.S. citizen.
To settle that issue, the Supreme Court delved into English common law, under which "aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador, or of an alien enemy in a hostile occupation of the place where the child was born." That principle, the majority said, carried over to America, as reflected in colonial legislation, early judicial rulings, and the debate preceding the 1868 ratification of the 14th Amendment. Since Wong's parents were not foreign diplomats, alien enemies, or "members of the Indian tribes," the Court concluded, he qualified as a U.S. citizen by virtue of his birth in the United States.
"Critically, Wong Kim Ark did not address the question of whether children born
to individuals who are unlawfully present in the United States qualify for birthright
citizenship," Meese writes. "The parents of Wong Kim Ark were lawful permanent residents, meaning they had a recognized and legitimate presence within the country. The Court's holding was limited to the specific facts of the case and should not be read as extending citizenship to the children of foreign nationals who have no legal status in the United States."
The Supreme Court's application of the 14th Amendment to Wong, however, hinged on its understanding of what it means to be "subject to the jurisdiction" of the United States. "Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States," it said. "Citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States."
The distinction that Meese urges, which excludes children of "individuals who are unlawfully present in the United States," is ahistorical. "Congress did not generally restrict migration until well after adoption of the Fourteenth Amendment," James Ho, whom Trump appointed to the U.S. Court of Appeals for the 5th Circuit in 2017 and considered as a potential Supreme Court nominee, noted in a 2006 law journal article. "Nothing in text or history suggests that the drafters [of the 14th Amendment] intended to draw distinctions between different categories of aliens. To the contrary, text and history confirm that the Citizenship Clause reaches all persons who are subject to U.S. jurisdiction and laws, regardless of race or alienage."
John Coughenour, the federal judge in Seattle who granted the preliminary injunction at issue in Trump v. Washington, was appointed by Ronald Reagan, the same president whom Meese served as attorney general. "I can't remember another case where the question presented [was] as clear as this one is," Coughenour remarked when he temporarily restrained Trump's order three days after it was published. "This is a blatantly unconstitutional order."
The 14th Amendment's Citizenship Clause "merely refers to 'jurisdiction,' and the word 'jurisdiction' is commonly understood in this context to be 'a geographic area within which political or judicial authority may be exercised,'" Coughenour wrote when he issued his preliminary injunction, quoting Black's Law Dictionary. "Thus, anyone who answers to the political or judicial authority of the United States is 'subject to [its] jurisdiction.' That is the plain meaning of the phrase 'subject to the jurisdiction,' and it unequivocally applies to children born in the territorial United States—regardless of the immigration status of their parents."
Coughenour also thought Trump's order was clearly at odds with Wong Kim Ark. In that case, "the Supreme Court addressed the meaning of the phrase 'subject to the jurisdiction thereof,'" he noted. It "clearly explained that the phrase 'subject to the jurisdiction thereof' was an extremely narrow qualification that only excepted three specific classes of person: 'children of members of the Indian tribes,…children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state.'"
To "further emphasize the narrowness of the qualifications imbued in the phrase 'subject to the jurisdiction thereof,'" Coughenour added, "the Supreme Court explicitly clarified" why "'aliens' were 'exempt' from the qualifications." When "private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other," the Court said, "it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country."
Deborah Boardman, the federal judge in Maryland who granted the preliminary injunction at issue in Trump v. CASA, likewise rejected the government's understanding of jurisdiction. "The government claims that, under Wong Kim Ark, to be 'subject to the jurisdiction' of the United States, a person's parents must, at the time of the person's birth, be lawfully domiciled in the United States, and bear '"direct and immediate allegiance" to this country, unqualified by an allegiance to any other foreign power,'" she noted. "Nothing in Wong Kim Ark remotely supports the government's narrow reading of the decision." Under that precedent, Boardman said, "if a person is born in the United States and does not belong to one of the traditional classes of excepted persons, the person is born 'within the allegiance' of the United States and 'subject to the jurisdiction' of the United States."
The Trump administration, Boardman noted, "seems to dismiss Wong Kim Ark's holding, and the lengthy analysis that supports it, as dicta"—statements of opinion that did not establish a precedent because they were not essential to the ruling. A Supreme Court brief from America's Future gestures in the same direction. "Despite some unduly broad dicta," it says, "Wong Kim Ark did not even address those specific children covered by the Executive Order—those born to a mother either illegally or temporarily present in the United States."
According to the government, Boardman noted, "Wong Kim Ark's holding was limited to the specific facts of the case." That decision, she said, "cannot reasonably be read that narrowly." And "even if not part of the Court's holding," she added, "Wong Kim Ark's statements that every person born in the United States is 'subject to the jurisdiction thereof' and thus a citizen by birth (with certain exceptions) certainly are not dicta."
Boardman quoted the 4th Circuit's definition of dictum as a "statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding—that, being peripheral, may not have received the full and careful consideration of the court that uttered it." But when "'a precedent's reasoning' is 'necessary to the outcome,' it 'must be followed,'" she noted.
"Wong Kim Ark's statement that the 'fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth' with certain recognized exceptions could not 'have been deleted without seriously impairing the analytical foundations of the holding,'" Boardman wrote. "Even a cursory review of the decision reveals that this statement and similar statements were not 'peripheral' to the holding. They were central to it. And there can be no question that the Court gave them 'full and careful consideration.'"
Leo Sorokin, the federal judge in Boston who granted the preliminary injunction at issue in Trump v. New Jersey, was similarly unimpressed by the Trump administration's dismissal of inconvenient passages from Wong Kim Ark. "The government's lawyers urge the Court to essentially ignore all but a handful of sentences from Wong Kim Ark, arguing the bulk of the majority's lengthy opinion is dicta," he wrote. "At the motion hearing, the defendants doubled down on this point, brazenly claiming that 'dicta can be disregarded.' That position reflects a serious misunderstanding at best—and a conscious flouting at worst—of the judicial process and the rule of law."
Quoting a 2020 ruling by the 1st Circuit, which includes Massachusetts, Sorokin noted that "lower federal courts are not merely obligated to apply the holdings of Supreme Court decisions; they also 'are bound by the Supreme Court's 'considered dicta.'" In a 1993 decision, the 1st Circuit said "carefully considered statements of the Supreme Court, even if technically dictum, must be accorded great weight and should be treated as authoritative when…badges of reliability abound." Sorokin had no trouble detecting such "badges" in Wong Kim Ark.
"To the extent the thorough analysis in Wong Kim Ark of the Fourteenth Amendment's common-law foundations, the purpose and intent of its drafters, and its application during the first thirty years after its ratification can be called 'dicta' at all, it is undoubtedly the 'considered' and 'authoritative' sort that this Court is bound to apply," Sorokin writes. "The sheer detail and length of the discussion by the Court's majority make this plain. Add to that the fact that the opposite view—the one the defendants advance to justify the [executive order]—was rejected by the majority in Wong Kim Ark (in the portions of the decision now labeled 'dicta' by the defendants) and endorsed only by the dissent. The plaintiffs are not relying on a stray 'remark' that lacks 'care and exactness,' standing 'wholly aside from the question in judgment' and 'unsupported by any argument, or by any reference to authorities,' that might not 'control the judgment' of a lower court. They are 'leaning into' the central reasoning of the Supreme Court in support of its holding."
The Supreme Court has repeatedly reaffirmed that reasoning. In 1934, for example, it noted that "a person of the Japanese race is a citizen of the United State if he was born within the United States." In 1957, the Court acknowledged that a child born to foreigners who had overstayed their visas would "of course" be "an American citizen by birth," despite the parents' "illegal presence." In 1966, the Court said two children born to parents who had entered the country under false pretenses (and therefore were "unlawfully present in the United States") nevertheless "acquired United States citizenship at birth." In 1985, the Court unanimously viewed a child "born in the United States" as "a citizen of this country," even though the child's parents had entered the country illegally.
When the Supreme Court gets around to considering the constitutionality of Trump's order, of course, it will be free to change course, renouncing the logic of Wong Kim Ark and subsequent decisions based on the principle it recognized. But no one should pretend that would not amount to a revolution in the Court's understanding of the 14th Amendment.