Supreme Court Strikes Down Trump’s Order Restricting Birthright Citizenship

The U.S. Supreme Court on June 30 struck down President Donald Trump’s executive order excluding children of illegal immigrants and legal temporary visitors from automatic birthright citizenship.

Chief Justice John Roberts wrote the majority opinion in the case, which is known as Trump v. Barbara.

“A child born on American soil and subject to American law was made an American citizen,” Roberts wrote.

Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito dissented.

Justice Brett Kavanaugh concurred in the decision to invalidate the executive order but disagreed with aspects of the reasoning in the majority opinion.

Trump’s Executive Order 14160 focuses on the 14th Amendment’s citizenship clause, which states: “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.”

The executive order states that the amendment has never been interpreted to bestow citizenship universally on everyone born in the United States. According to the order, an individual born in the United States is not “subject to the jurisdiction thereof” if that person’s mother was unlawfully present in the country and the individual’s father was not a U.S. citizen or lawful permanent resident at the time of the person’s birth.

In other words, the executive order excluded the children of illegal immigrants and legal temporary visitors from automatic birthright citizenship.

Trump had said on March 30 that the country’s current birthright citizenship rule, which arose out of the 14th Amendment, was created to grant citizenship to freed slaves and their children, not to children born to temporary visitors.

His order states that “the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.”

A federal district court in New Hampshire temporarily blocked the executive order, finding it likely contradicts the 14th Amendment and Section 1401 of Title 8 of the U.S Code, enacted in 1952, which generally mirrors the 14th Amendment.

The federal government appealed to the U.S. Court of Appeals for the First Circuit, but did not wait for a ruling and asked the Supreme Court to intervene. In the meantime, the appeals court upheld a preliminary injunction blocking the executive order in a separate case.

Origins of Current Policy

The current policy goes back to the Supreme Court’s landmark 1898 decision in United States v. Wong Kim Ark, which recognized that almost all persons born in the United States are U.S. citizens at birth.

Wong was born in San Francisco in 1873 to Chinese parents who were legally residing permanently in the United States. Because his parents were not serving in a diplomatic or official capacity for the then-emperor of China, the court, invoking the 14th Amendment, held that he was a U.S. citizen by birth.

Trump’s executive order uses a different interpretation of the 14th Amendment’s citizenship clause, which states: “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.”

The order said that, even though the clause adopted in 1868 “rightly repudiated” Dred Scott v. Sandford (1857), which misconstrued the Constitution to exclude people of African descent from citizenship based on race, it was never interpreted to bestow citizenship on everyone born in the United States.

The amendment has always excluded from birthright citizenship individuals who were born in the United States but not “subject to the jurisdiction thereof,” said the order, adding that Section 1401 did the same.

Majority Ruling

In the majority opinion, Roberts said the current policy was based on the English legal doctrine known as “jus soli,” or the right of the soil, which means being born in the country generally makes a person a citizen of that country.

Roberts focused on the meaning of the words in the 14th Amendment’s citizenship clause, which states: “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 the English tradition, the child “owed an implied allegiance to the sovereign who protected him at his birth—no matter how ‘momentary and uncertain’ his presence in the King’s realms,” he said.

The phrase “subject to the jurisdiction thereof,” Roberts said, “made no exception for those only temporarily present within the sovereign’s territory.”

“Instead, nearly everyone within the territorial boundaries of the United States was “amenable to” the Nation’s jurisdiction,” he said.

Citizenship is “the right to have rights—to freely participate in our political community.” Those who framed the 14th Amendment “extended that promise to ‘every free-born person in this land.’ We keep that promise today.”

The Supreme Court affirmed the judgment of the federal district court.

This is a developing story and will be updated.