A 126-year-old legal obstacle stands in the way of President-elect Donald Trump’s pledge to revoke birthright citizenship whenever he returns to office, according to legal experts.
Although the U.S. Supreme Court has never made a particular ruling on birthright citizenship, legal experts and Trump opponents have defended the 1898 decision United States v. Wong Kim Ark as a means of countering his ongoing executive order pledges.
In an interview with the San Francisco-based radio station KQED that was posted online on Friday, Leti Volpp, a law professor at UC Berkeley, noted that our legal system is founded on precedent. Regarding the potential legal issue, Volpp stated that there hasn’t been any precedent-setting verdicts in the Wong Kim Ark case.
Since his first administration, Trump has made repeated promises to remove birthright citizenship.
In a May 2023 Agenda 47 campaign video, Trump declared, “I will sign an executive order on the first day of my new term in office, making clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal immigrants will not receive automatic US citizenship.”
Trump claimed that illegal immigration is the reason why millions of people come to our country. My plan will discourage new migrants from entering the country, remove a significant incentive for further illegal immigration, and encourage many of the foreign nationals Joe Biden has illegally allowed to enter to return home. They have to return.
In a 6-2 ruling in United States v. Wong Kim Ark, the U.S. Supreme Court held that a child born in the United States is immediately a citizen, regardless of whether the parents are qualified for citizenship. According to Justice Horace Gray, 21-year-old Wong was born in San Francisco to subjects of the Emperor of China. The court determined that his parents were legally admitted to the United States, and as a result, he was recognized as an American citizen.
According to Justice Gray’s majority opinion filing for the court, “[T]he Fourteenth 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 all children here born of resident aliens.”
According to experts, Gray’s previous remarks and the language of the court’s decision may eventually force Trump to put a stop to his birthright bid.
The offspring of all other people, regardless of race or color, who reside in the United States are included under the amendment’s explicit language and manifest intent, according to Gray.
The Supreme Court’s 1898 decision, according to Trump supporters and right-wing proponents of his citizenship and deportation policies, is unclear, despite the amendment’s clarity.
For example, federal judge James C. Ho has stated in interviews that it does not take into consideration illegally entering the country. According to him and others, Wong’s citizenship stems from the fact that his parents were valid and permanent residents of California.
Earlier this month, Ho told Reason magazine that birthright citizenship clearly does not apply in the event of an invasion or conflict. To my knowledge, no one has ever made the case that children of foreign invaders should be granted citizenship by birthright.
Given that immigrants are not exempt from prosecution if they commit a crime in the US, Volpp told KQED she was doubtful the courts would concur that immigrants could be described as an invading army.
Old English law, which maintained that people born in hostile territory were not English subjects because English sovereign authority could not operate there, is the source of the notion that hostile armies are not subject to U.S. jurisdiction and that their offspring would not be birthright citizens, according to Volpp.
The Wong decision’s connection to the Fourteenth Amendment, according to Ming H. Chen, a professor at UC Law San Francisco and the faculty-director of the school’s Center for Race, Immigration, Citizenship, and Equality, is what gives it such sway.
“Our foundational document is the Constitution,” she told KQED. The Constitution must be upheld by all three branches of government. When issuing an executive order, the president is limited by the Constitution.
Chen and Volpp clarified that Trump would face immediate legal action if he issued an executive order declaring future children of unauthorized immigrants to be non-citizens. They think that in order to accomplish this, Trump would have to alter the Constitution itself.
Chen stated that “you would need [another] constitutional amendment to go against a constitutional amendment and a Supreme Court case that has enshrined this interpretation of birthright citizenship as being very broad.”
“It is very evident that the framers’ original intent was to guarantee birthright citizenship to children of immigrants if the court wishes to look backward in time,” Volpp continued. A specific perspective on how to interpret the law is developed via the accumulation of examples from the past.
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