birthright

WASHINGTON  — The Supreme Court on Wednesday will hear President Trump’s claim that he has the power to revise the Constitution and to end birthright citizenship for babies born in this country to parents who were here unlawfully or temporarily.

Trump proposed this potentially far-reaching change in an executive order. It has been blocked by judges across the country and has never been in effect.

His lawyers contend they seek to correct a 160-year misunderstanding about the Constitution’s promise that “all persons born” in this country are deemed to be citizens.

The president’s executive order “restores the original meaning of the citizenship clause” and would deny “on a prospective basis only” citizenship to the “children of temporarily present aliens and illegal aliens,” Solicitor Gen. D. John Sauer wrote in his appeal.

But the first hurdle for Trump and his lawyers may concern the powers of the president.

In February, the court blocked Trump’s sweeping worldwide tariffs on the grounds the Constitution gave Congress, not the president, the power to impose import taxes.

By comparison, the president has even less power to set the rules for U.S. citizenship. The Constitution gives Congress the power to “establish a uniform rule of naturalization.”

After the Civil War, Congress adopted a civil rights act in 1866 that said “all persons born in the United States and not subject to any foreign power, including Indians not taxed, are hereby declared to be citizens of the United States … of every race and color.”

To make sure that rule stood over time, it was added to the Constitution in the 14th Amendment. Its opening line says: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside.”

In 1898, a conservative Supreme Court upheld that rule and affirmed the citizenship of Wong Kim Ark. He was born in San Francisco to Chinese parents who later returned to China.

“The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory,” the court said. “In clear words and in manifest intent, [it] includes the children born, within the territory of the United States, of all other persons, of whatever race or color.”

In 1952, when Congress revised the immigration laws, it added the same provision without controversy. Lawmakers set multiple rules for deciding disputes over American parents who live abroad, but the first rule was simple and undisputed.

“The following shall be nationals and citizens of the United States at birth: a person born in the United States and subject to the jurisdiction thereof,” the law said.

Critics say Trump’s plan could replace a clear and simple rule with a confusing and complicated one. States would have to look into the history and legal status of a newborn’s parents to decide whether they met the new qualifications.

Until now, a valid birth certificate had been sufficient to establish a person’s U.S. citizenship.

Last week, Trump was urging Senate Republicans to pass a new election law that would require millions of Americans to present a birth certificate as proof of their citizenship if they register to vote or move to a new state.

“Proving citizenship to vote is a no brainer,” the White House said.

This week, however, Trump’s lawyers are urging the court to rule that their birth in this country is not proof of their citizenship.

There is a “logical inconsistency” here,” said Eliza Sweren-Becker, a voting rights expert at the Brennan Center.

In the legal battle now before the court, the key disputed phrase is “subject to the jurisdiction.” That has been understood to mean that people within the United States are subject to the laws here, except for foreign diplomats and, for a time, Native Americans who lived on tribal reservations.

But Sauer contends it excludes newborns who are “not completely subject to the United States’ political jurisdiction” because their parents are in this country unlawfully.

Lawyers for the American Civil Liberties Union called this a “radical rewriting” of the 14th Amendment, which says nothing about the parents of a newborn child.

If upheld, this order could apply to “tens of thousands of children born every month, “ they said, “devastating families around the country.” But worse yet, they said, the outcome “would cast a shadow over the citizenship of millions upon millions of Americans, going back generations.”

Some legal experts predict the court may rule narrowly and reject Trump’s executive order because it conflicts with federal immigration laws. Such a ruling would be a defeat for Trump, but it could allow Congress in the future to adopt new provisions, including a limit for expectant mothers who enter this country to give birth.

April 1 (UPI) — The U.S. Supreme Court is hearing oral arguments in a case on Wednesday that could reshape what it means to be a U.S. citizen.

The case, Trump vs. Barbara, is over President Donald Trump‘s Jan. 20, 2025, executive order “Protecting the meaning and value of American citizenship,” which seeks to change the application of the Citizenship Clause, ending birthright citizenship.

In his executive order, Trump argued that the 14th Amendment of the U.S. Constitution “has never been interpreted to extend citizenship universally to everyone born within the United States.”

The law of the land, as it has been recognized since the ratification of the 14th Amendment in 1868, has been that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Trump’s executive order remains blocked from taking effect, with lower courts affirming that his attempt to end birthright citizenship is unconstitutional. In December, the Supreme Court agreed to take up the case, beginning with oral arguments starting on Wednesday.

U.S. Solicitor General John Sauer will argue on behalf of the Trump administration.

“If the Trump executive order is upheld, it would mark an enormous change in how the United States understands who is a citizen and who is not,” Kate Masur, John D. MacArthur Professor of History at Northwestern University, told UPI.

Masur filed an amicus brief supporting a challenge to Trump’s executive order.

“There’s certainly never been a president who issued an executive order trying to undermine birthright citizenship in this way,” Masur said. “Congress has repeatedly, through legislation, affirmed birthright citizenship and the Supreme Court has also affirmed birthright citizenship.”

The Trump administration’s argument against birthright citizenship hinges on its interpretation of the term “jurisdiction” in the context of the clause “subject to the jurisdiction thereof.”

In an amicus brief by Sen. Ted Cruz, R-Texas, Sen. Lindsey Graham, R-S.C., and other Republican lawmakers, they contest that the authors of the 14th Amendment could have written “subject to the laws.” Instead, the use of the term “jurisdiction” requires “allegiance” to the United States.

“Allegiance is also a reciprocal relationship. The person must be present with the consent of the sovereign, a factor on which this Court extensively relied in United States v. Wong Kim Ark,” the Republican lawmakers argue. “But illegal aliens and their children are present in the United States without consent, i.e., only by defying its laws.”

The lawmakers also argue that their interpretation of total allegiance looks to “early English caselaw.”

The challenges to birthright citizenship by Republicans are not new, Masur said.

The Wong Kim Ark case that the Republican lawmakers referred to affirmed birthright citizenship under the 14th Amendment. The case was brought on when the U.S. government denied the son of Chinese Immigrants, Wong Kim Ark, re-entry into the United States.

Ark, who was born in San Francisco, had taken a trip to China and was detained upon his return to the United States. The case took place in 1898, more than a decade after the passage of the Chinese Exclusion Act, which prohibited Chinese workers from seeking citizenship in the United States.

Since Wong Kim Ark, there have continued to be opponents of birthright citizenship, though the immigrant groups their movements targeted have changed. Since the 1990s, immigrants from Spanish-speaking countries have largely been the central focus of those seeking to end birthright citizenship.

Former Sen. Steve King, R-Iowa, repeatedly introduced legislation on Capitol Hill trying to end birthright citizenship. His most recent effort was in 2015. In 2019, King was removed from all committee assignments after defending white supremacy and white nationalism, following years of racist comments throughout his 17-year career.

“The thing that these movements have in common over time is their desire to limit who among people born in the United States gets to be a citizen,” Masur said. “Usually it is driven by various anti-immigrant sentiments.”

Daisy Hernandez, author of Citizenship: Notes on an American Myth, told UPI that there are modern examples of what happens when birthright citizenship is taken away.

The Dominican Republic amended its constitution in 2010 to remove birthright citizenship for Haitians in the country. In 2013, it made the law retroactive to 1929, removing the citizenship of an estimated 200,000 people overnight.

“That is an example of what would happen in the United States. However, for us it would happen in terms of millions of people,” Hernandez said.

Children of immigrants who have their citizenship revoked become stateless, Hernandez explained. With no country to call home, they are left adrift without the right to exist anywhere.

“Statelessness means that you have no government which you can turn to in any way,” she said. “It means you do not have any documentation of any kind. You don’t have documentation that you have a right to be anywhere. The philosopher Hannah Arendt said ‘citizenship is the right to have rights.’ You need a government to recognize that you have rights.”

There are more than 4 million children in the United States who have parents who are undocumented immigrants.

If Trump’s executive order is allowed to stand by the Supreme Court, Hernandez and Masur said the United States could return to an era of the 19th century when citizenship varied from state to state.

“It is really jarring to remember once upon a time certain states within the United States recognized the citizenship and humanity of Black Americans and we had other states that did not,” Hernandez said. “So are we going to end up in a situation where a child born to an undocumented parent is recognized as a citizen as long as they stay within the state of New York or of Massachusetts but would then become stateless if they crossed into Connecticut or further south or further west?”

Most countries in the Western Hemisphere recognize birthright citizenship. The Dominican Republic and Colombia are rare exceptions.

“We have always understood being American as being very closely tied with birthright citizenship,” Hernandez said. “It would be a collapse of how we understand American identity in the United States.”