CONSTITUTIONAL INTERPRETATIONS

President Trump has raised the question of whether children born in the United States to undocumented “alien” parents should automatically be regarded as citizens of the United States. See Executive Order No. 14160, 90 Fed.Reg. 18 (January 20, 2025). Until the issuance of that Order, the federal government has followed the doctrine of “Birthright Citizenship” as first enunciated by the United States Supreme Court in the case of United States v. Wong Kim Ark, 169 U.S. 649 (1898). In that case, the Court ruled that all babies born in the United States were automatically “citizens of the United States,” except for babies born to diplomatic personnel from foreign countries and babies born to enemy invaders and occupiers from foreign countries.

Both the Court, in 1898, and the President, in 2025, relied upon the “Birthright Citizenship Clause” of the United States Constitution, which reads as follows:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.

U.S. Const., Amendment XIV, Section 1.

The legal question raised by the President focuses entirely on the phrase “subject to the jurisdiction thereof.” The President claims that that phrase excludes from birthright citizenship a child born to a mother “unlawfully present in the United States” and to a father who is not a “United States citizen or [a] lawful permanent resident [of the United States] at the time of said person’s [the child’s] birth.” See Executive Order 14160, supra. The President also claims that the quoted phrase excludes from automatic citizenship a child born to a mother whose “presence in the United States at the time of said person’s birth was lawful but temporary,” such as a mother with tourist or other temporary visitor documentation. Ibid.

The President has a point, but only a minor one that should not free his mass deportation efforts from the operation of the Birthright Citizenship Clause. Historically, the clearly evident purpose of that Clause in 1868, when the 14^th Amendment was adopted, was to overrule the jurisdictional remnant of the Court’s Dred Scott Case of 1857 that was left standing after the pro-slavery part of that Case was overruled by the 13^th Amendment. In the jurisdictional part of the Dred Scott Case, the Court had ruled that it and other federal courts lacked jurisdiction, because Black people like Dred Scott, who had lived his life in the United States, could not be regarded as “citizens.” See The Dred Scott Case, 60 U.S. at 404-405. The Birthright Citizenship Clause did away with that overtly racist doctrine, by basing citizenship upon the location of one’s birth, instead of the identity and physical characteristics of one’s parents. This new American citizenship doctrine was not limited to Black people, many of whom had been children of slaves. See the Slaughter-House Cases, 83 U.S. 36, 73-74 (1873).

In United States v. Wong Kim Ark, 169 U.S. 649, 682 (1898), the Court upheld the Birthright Citizenship doctrine as a principle of law literally required by the 14^th Amendment. The only exceptions to “birthright citizenship” the Court recognized, under the “subject to the jurisdiction” language of the 14^th Amendment, were exceptions for the American born children of foreign diplomats, and a theoretical exception for any American born children of foreign enemies actually invading the United States and occupying American territory. Ibid. None of President Trump’s newly proposed exceptions to birthright citizenship fit either of those categories. See Executive Order 14160, supra.

The President’s one good point can be found in the one Supreme Court case he cited in his Executive Order. In Elk v. Wilkins, 112 U.S. 94 (1884), the Court held that an American Indian who was born within the exterior borders of the United States, but who did not leave his tribal home until he reached adulthood, was not a “citizen” under the Birthright Citizenship Clause. Indian tribes at that time retained some of their original sovereignty as tribal “nations” under the law of the United States. In an Opinion written by the same Justice who wrote the majority Opinion in United States v. Wong Kim Ark, the Court held that the “subject to the jurisdiction” language of the Birthright Citizenship Clause disqualified that American Indian applicant from voter registration as a natural-born “citizen” of the United States. The people President Trump wants to deport from the United States are not native Americans. See Executive Order 14160, supra.

Nonetheless, the two birthright citizenship cases by the Supreme Court can be reconciled, to give some validity to the recognition of another and broader exception to “birthright citizenship. (Associate Justice John Marshal Harlan dissented from both rulings). One of the President’s objections to “birthright citizenship” concerns birthright tourism in the United States, where pregnant women visit the country, for the purpose of giving birth there. If the visiting woman takes her newborn baby back with her to her home country, the baby never acquires residency in any state or in the United States, as the verb “reside” was generally used in 1868, when the 14^th Amendment was adopted. Under the reasoning of Elk v. Wilkins, along with some departure from a piece of subordinate reasoning in United States v. Wong Kim Ark, a legitimate case can be made that American-born babies who are voluntarily returned to their mother’s homeland immediately after birth are also excluded from the Birthright Citizenship Clause. But beyond that, no further exceptions to birthright citizenship can be attributed to the text of that Clause short of a duly ratified amendment to that text.

The Supreme Court will likely hear arguments on the validity of President Trump’s Executive Order No. 14160 in the case of Trump v. CASA on Thursday, May 15, 2025. The Court’s ultimate decision in that case can be expected by the end of June. However, there is a substantial probability that the Court’s decision will be limited to the procedural issue of the Court’s jurisdiction, despite the direct connection between that issue and the Constitutional issue.

/s/ Dan D. Rhea