You don’t have to delve deeply into the U.S. Constitution to see the word “citizen.” The word first appears in Article I, Section 2, which states that to serve in the House of Representatives, a person must have been a citizen for seven years.
“Citizen” appears 10 more times in the original seven articles that discuss the qualifications for office, legal disputes and rights.
Yet nowhere does the Constitution define what a citizen is.
In 1866, when Congress was debating the 14th Amendment, guaranteeing citizenship rights to former slaves, Sen. Edgar Cowan made that point: “I am really desirous to have a legal definition of ‘citizenship of the United States.’ What does it mean? What is its length and breadth?”
Thus began a curious — and, to the modern ear, perhaps xenophobic — debate over categories of people whom senators wanted to include, or exclude, from the ranks of citizenship.
The “Mongolians” — Chinese — in California. “Gypsies” in Pennsylvania. Some Indian tribes, such as the “Navajoe,” who at that time had been rounded up and force-marched to Fort Sumner in New Mexico.
Some 160 years later, the Supreme Court will again leap into that debate during an oral argument Wednesday.
The issue this time will be for the justices to decide whether children born on U.S. soil to illegal immigrant parents or foreigners in the country on only a temporary visitor’s visa fall under the 14th Amendment’s language, or whether President Trump can change more than a century’s worth of law and practice through an executive order.
The sticking point is what the amendment means when it says citizenship is guaranteed to all people born in the U.S. and “subject to the jurisdiction thereof.”
“Children of temporarily present or illegal aliens do not qualify because their parents are not domiciled in, and thus do not owe the requisite allegiance to, the United States,” U.S. Solicitor General D. John Sauer told the justices in his final brief in the case. “Temporarily present aliens are by definition not domiciled here, while illegal aliens lack the legal capacity to form such a domicile.”
He said that was the understanding for much of the country’s history, expressed by justices before the Civil War, by some of the key lawmakers who crafted the 14th Amendment, and by the executive branch in the years after the amendment’s ratification.
The problem for Mr. Sauer is that, for more than a century, the academic consensus has weighed heavily in the opposite direction.
In the 1898 Wong Kim Ark decision, the Supreme Court ruled that a man born to Chinese parents who were in the U.S. with some legal status but no chance at citizenship fell under the “jurisdiction” of the U.S. and was himself a citizen by dint of the 14th Amendment.
Justice Horace Gray wrote that birthright citizenship had only a few exceptions, including children born to foreign diplomats, to members of a foreign occupying army or to some Indian tribes.
Dissenting justices said his interpretation of the 14th Amendment was too broad, but the majority in the 6-2 decision has had staying power.
Mr. Trump’s defenders say that since the parents of Wong Kim Ark were in the country legally, albeit without a path to citizenship, that case is different from the situation involving illegal immigrants or temporary visitors.
Cody Wofsy, deputy director of the American Civil Liberties Union’s immigrant rights project, said the Trump administration’s position simply recycles the dissenting arguments in 1898.
“There is no dispute that when people come here from a foreign country, they are subject to our laws, and their children, if born here, are U.S. citizens,” Mr. Wofsy said.
He said the concept of birthright citizenship is universally ingrained.
“Americans understand this,” he said. “We live our lives based on this as our shared American culture and legal framework, and so many of the systems in this country are built around the shared understanding that if you are born in this country, you are an American citizen.”
During his first term, Mr. Trump repeatedly promised to issue an executive order on birthright citizenship, but he never did.
On Inauguration Day of his second term, he made good on that promise.
His order directs U.S. agencies not to recognize citizenship in cases where a newborn’s mother is in the U.S. illegally or on a short-term legal visa, and the father is not a citizen nor a lawful permanent resident.
Using an executive order could be a legal problem for Mr. Trump.
In 1940, Congress wrote comprehensive legislation laying out citizenship and adopting the 14th Amendment’s language of automatic citizenship for those born “subject to the jurisdiction” of the U.S.
Given that it was adopted after the 1898 court ruling, that could be read to enshrine the majority’s opinion, making Mr. Trump’s order illegal.
Immigrant rights advocates said they would accept that as a victory, though it would be “unstable” because it leaves open the possibility that a future Congress would revisit the matter.
Mr. Sauer, in a nod to that fact, told the justices that even if they are torn on the constitutional question, they should err on the side of “leaving Congress with the flexibility to decide, under its naturalization power, whether to grant citizenship to such children.”
