The US Supreme Court has, in a number of cases in recent history, nakedly deferred to President Trump and waded into some of the same slop as a generic right-wing uncle on Facebook. But on the issue of birthright citizenship, even the majority Republican Supreme Court seems to be raising its eyebrows.
Last week, the Supreme Court heard oral arguments on President Trump’s executive order seeking to restrict birthright citizenship, the legal principle by which almost anyone born in the US is an American citizen, regardless of their parents’ status. The text of the 14th Amendment’s citizenship clause, which has long been interpreted as guaranteeing birthright citizenship, is fairly unambiguous: “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 court seemed largely skeptical of the government’s argument, with Justice Neil Gorsuch, a Trump appointee, stumping Solicitor General John Sauer on whether the government’s position would guarantee birthright citizenship for Native Americans; and another Trump appointee, Brett Kavanaugh, questioning the relevance of Sauer’s argument that birthright citizenship makes the US “an outlier among nations.” (Trump has frequently, and falsely, claimed that the US is the only country with birthright citizenship, although Sauer did not; while the right is rare in Asian and European nations, more than 30 countries, most of them in the Americas, guarantee citizenship to children born on their soil, regardless of the parents’ status.)
The question of birthright citizenship has long been a target of the anti-immigration right, which coined the slur “anchor babies” in reference to children born to noncitizen parents in a country that grants citizenship at birth. During a particularly awful 2010 interview with Anderson Cooper, then-Rep. Louie Gohmert (R-Texas) sought to fuel terrorism hysteria by doubling down on a claim he made before Congress that the principle would be exploited by terrorists to secure citizenship for “terror babies.”
Opponents of automatic birthright citizenship, including the Trump administration, have argued that the citizenship clause was intended to bestow citizenship not on the children of immigrants but formerly enslaved people. The 14th Amendment overturned the notorious 1857 Dred Scott v. Sandford decision, which held that people of African descent whose ancestors were enslaved when they came to the US were not subject to the protections of citizenship. Trump himself ranted earlier this week on Truth Social that birthright citizenship only applied to the “BABIES OF SLAVES!”
But these questions have already been raised, and resolved, in a 1898 case involving a man whose immigrant parents were subject to even more stringent immigration restrictions than today. Wong Kim Ark was born in the 1870s, in San Francisco, to Chinese nationals who later returned to China amid an economic downturn and rising discrimination against the Chinese in America. He traveled to China to visit his parents in 1894, but was later denied re-entry to the US, the country of his birth. The officials who barred Wong’s entry cited the Chinese Exclusion Act of 1882, one of the earliest US laws restricting immigration, enacted nine years after his birth, which barred all Chinese immigration for 10 years and prevented Chinese nationals from becoming US citizens.
A local Chinese American group filed for a writ of habeas corpus and said Wong’s denial violated his rights as a US citizen, while the US government argued that Wong was a “subject of the Emperor of China,” covered by the Exclusion Act and a series of other anti-Chinese laws that followed over the 1880s and 1890s. Almost two and a half years later, the Supreme Court ruled 6-2 that Wong, and almost anyone else born in the United States, was a citizen under the text of the Citizenship Clause, with narrow exceptions for the children of diplomats and “enemies within and during a hostile occupation of part of our territory.”
In his majority opinion, Associate Justice Horace Gray acknowledged the clause’s origins in abolition but ruled that its wording unambiguously made Wong a citizen too. “Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in [Dred Scott] and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States,” Gray wrote. “But the opening words, ‘All persons born,’ are general, not to say universal, restricted only by place and jurisdiction, and not by color or race.”
Rhiannon Hamam, a supervising attorney with the University of Texas School of Law’s Richard and Ginni Mithoff Pro Bono Program and cohost of the legal history podcast 5-4, tells Teen Vogue that “the case is quite clear that if you're born in the United States, you are a citizen of the United States.”
Hamam continues, “It's interesting because the Supreme Court ruled this so clearly at a time where there was such widespread racism and animosity and hostility towards Chinese immigrants and people of Chinese ancestry. Even in that context, the text, the holding of this case is really clear.”
The Supreme Court of Chief Justice Melville Fuller that sided with Wong, crucially, was far from being described as “bleeding heart” (Fuller himself was one of the two dissents). Just two years earlier it had issued the 1896 Plessy v. Ferguson decision, which infamously declared racial segregation constitutional as long as accommodations were “separate but equal”—a position argued before the court by attorney Alexander Porter Morse, who was also one of that era’s most vocal opponents of race-neutral birthright citizenship and a source for the Trump administration’s case against the longstanding interpretation of the citizenship clause. And nine years before the Wong Kim Ark ruling, the Fuller court voted down a challenge to an 1888 law barring Chinese laborers from reentry.
“Even a reactionary Supreme Court," Hamam says, "looking at the fairly recently passed 14th Amendment, is saying, ‘Look, by the text of this, yeah, this guy’s a citizen of the United States, he was born here.’”
Despite the current court’s seemingly probable rebuke of Trump, the fact that it agreed to take the case in the first place has troubling implications for how the immigration debate has shifted since the Wong case, says Madiba Dennie, an attorney and deputy director at the legal commentary blog Balls and Strikes.
“This was not a close call,” Dennie tells Teen Vogue in an email. “Even the Court that issued Plessy was able to figure it out. And so, even entertaining the question is bleak. Anything other than a unanimous rejection would be even bleaker.”
