Shortly after being sworn into office on Jan. 20 for a second term, President Donald Trump issued an executive order ending birthright citizenship – the guarantee of citizenship to anyone born in the United States. Going forward, Trump instructed, people born in the United States will not be automatically entitled to citizenship if their parents are in this country either illegally or temporarily.
Three days later, a federal judge in Seattle temporarily barred the Trump administration from enforcing the order. Senior U.S. District Judge John Coughenour, a Reagan appointee, had told a Justice Department lawyer during a hearing that Trump’s order was “blatantly unconstitutional.”
On Wednesday, indicating that the Supreme Court “has resoundingly rejected the president’s interpretation of the Citizenship Clause of the 14th Amendment,” a federal judge in Maryland separately blocked the Trump administration from enforcing the Jan. 20 executive order while a lawsuit brought there by immigrants’ rights groups and several pregnant women moves forward. According to a report by The Hill, U.S. District Judge Deborah Boardman, a Biden appointee, emphasized at the end of a hearing on Wednesday that “no court in the country has ever endorsed the president’s interpretation. This court will not be the first.”
And on Thursday, Coughenour extended his ban on the Trump administration enforcing the order anywhere in the country. After a brief hearing, Coughenour described birthright citizenship as a “fundamental constitutional right.” Saying that it is “ever more apparent” that “the rule of law is but an impediment” to Trump’s policy goals, he concluded that “the Constitution is not something with which the government may play policy games.”
Still more challenges to the Jan. 20 order have been filed in Massachusetts, New Hampshire, and the District of Columbia.
Birthright citizenship was explicitly added to the Constitution in 1868 when the 14th Amendment was adopted following the Civil War. The United States is one of roughly 30 countries, including neighboring Canada and Mexico, that offer automatic citizenship to everyone born there.
Coughenour concluded that there is a “strong likelihood” that the challengers in the Seattle case – the states of Washington, Arizona, Illinois, and Oregon – “will succeed on the merits of their claims that the Executive Order violate the Fourteenth Amendment” to the Constitution, which says, as relevant here, that “[a]ll 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 litigation over Trump’s executive order is likely to focus on what it means for someone to be “subject to the jurisdiction” of the United States. The 14th Amendment was intended to overrule one of the Supreme Court’s most notorious decisions, its 1857 ruling in Dred Scott v. Sandford. Scott was born enslaved in Virginia and was later sold to an army surgeon who took his slaves with him to army postings in parts of the United States where slavery was prohibited. When Scott returned to Missouri, he filed lawsuits in federal court, seeking freedom for himself and his family. By a vote of 7-2, the Supreme Court threw out his case. It held that a Black person whose ancestors were brought to this country and sold as enslaved persons was not entitled to any protection from the federal courts because he was not a U.S. citizen.
Four decades later, the Supreme Court ruled that the 14th Amendment guarantees U.S. citizenship to anyone born in the United States. The decision came in the case of Wong Kim Ark, who was born in San Francisco to parents of Chinese descent. When he returned to the United States from a visit to China in 1895, immigration officials would not allow him to enter the country on the ground that he was not a U.S. citizen.
By a vote of 6-2, the Supreme Court agreed with Wong that he was a U.S. citizen. Writing for the majority, Justice Horace Gray explained that although the “main purpose” of the 14th Amendment had been to establish the citizenship of Black people, including former enslaved persons, born in the United States, the amendment applies more broadly and is not restricted “by color or race.” Instead, he wrote, the amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.”
There have historically been only a few exceptions to that general rule, Gray continued – for example, the children of hostile enemies who are occupying the country, and the children of foreign diplomats, as well as (until 1924) some Native Americans.
Chief Justice Melville Fuller dissented, joined by Justice John Marshall Harlan. In his view, Wong was not a U.S. citizen because he could not be “completely subject to the jurisdiction” of the United States: As Chinese citizens, his parents had a duty to the emperor of China, and a federal law, the Chinese Exclusion Act of 1882, barred them from becoming U.S. citizens. So although the 14th Amendment may have been intended to establish citizenship for Black people in the United States, Fuller reasoned, it was “not designed to accord citizenship” to people like Wong.
“In other words,” Fuller concluded, “the Fourteenth Amendment does not exclude from citizenship by birth children born in the United States of parents permanently located therein, and who might themselves become citizens.” But “on the other hand,” Fuller continued, the amendment also does not “arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this Government, are and must remain aliens.”
In 1982, the Supreme Court interpreted a separate but similar clause of the 14th Amendment to have an equally expansive scope. In Plyler v. Doe, the justices ruled, by a vote of 5-4, that a Texas law barring undocumented immigrants from attending public school violates a provision of the amendment that prohibits a state from denying “to any person within its jurisdiction the equal protection of the laws.”
In an opinion by Justice William Brennan, the court rejected the state’s argument that undocumented immigrants were not “persons within its jurisdiction” and therefore not covered by the equal protection clause. The phrase “within its jurisdiction” “confirms,” Brennan explained, “the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory.” This includes, Brennan stressed, people who entered the United States without proper documentation: While they are in a state, he reasoned, they are both “subject to the full range of obligations imposed” by the state’s laws and “entitled to the equal protection of the laws that a State may choose to establish.”
In its brief opposing a preliminary injunction that would bar the Trump administration from enforcing the executive order, lawyers for the Department of Justice emphasized that the Supreme Court in Wong’s case had “repeatedly relied” on the fact that Wong’s parents were permanent residents of the United States. By contrast, the government argued, the U.S.-born children of undocumented immigrants and temporary visitors to the United States are not “subject to the jurisdiction of the United States” because they have permanent residence in, and owe “a measure of allegiance to,” their “parents’ home country.”
–Amy Howe, Scotus Blog
This article was originally published at Howe on the Court.
Ed Danko, former Vice-Mayor, PC says
This will end up in front of the United States Supreme Court, and I have no doubt that the court will rule that citizenship will not be granted to the child of those who broke our law by entering our country illegally, just to pop out a baby to achieve US citizenship. Only a looney leftist would think otherwise.
JC says
Do you have anything else to do in your retirement years besides going on a news comment section and complain about this and that all day? Seems like you have no life.
Laurel says
Ed Danko, etc., etc.: Yeah, punish those babies who just pop out. They have their nerve. Babies should plan better, right?
I’m not a “lefty” but you’re making the lefties look smarter.
DaleL says
The 14th Amendment does not mention the immigration status of mother. It specifically refers to the person (child) being born in the USA and being subject to the jurisdiction of the USA. The specifics are subject to legislation by Congress. I think that SCOTUS will find Mr. Trump’s executive order to be unconstitutional.
With respect to the 14th Amendment, citizenship is not granted. Instead, if the two conditions, that are specified in the 14th Amendment, are met, the person is a citizen of the USA. The only issue is whether a child is considered to be “…subject to the jurisdiction thereof…(USA).
Ray W, says
Nothing like watching Ed Danko, former Vice-Mayor of PC, says display his partial understanding of the law.
As background, I suppose every FlaglerLive reader knows by now that under our liberal democratic Constitutional republic, our founding fathers intended to limit the political powers that were to be given to the fledgling government. When our Constitution was ratified, certain powers were gifted by the ratifiers to the federal government, but not all powers. Those powers not gifted to the federal government were either reserved for the state governments or retained by the people. Those limited powers gifted to the federal government no longer belonged to the people. Of course, the people retained the power to redefine the powers that had been gifted to their governments, provided the people took specifically defined steps to modify or revoke the gifted powers. Everyone knows that gifts, when given, no longer belong to the givers.
The power to convict persons of crimes was gifted only to the judicial branch and most certainly not to the executive branch. It didn’t take long for me as a baby prosecutor to learn that I had to either ask my judges or ask my juries to determine guilt or innocence. I did not have the power myself to determine guilt. I held the power to allege guilt, but that type of power significantly differs from the power to determine convict. Were any prosecutor ever to tell a jury that he or she thinks the defendant is guilty of committing a crime, he or she would be committing prosecutorial misconduct. If objected to by the defense, any conviction will be overturned and the case sent back for a new trial due to the prosecutor’s error.
What that means is that no one is guilty of a crime until a judge or jury determines the issue of guilt.
I suppose there might be a few tipsy drivers of the roadways tonight. None of them can be called criminals until they are arrested, charged and finally convicted of a crime. Yes, they may be illegal in Ed Danko’s reckoning, but they aren’t automatically criminal. This is why the legal term for certain immigrants is either undocumented or unauthorized and not criminal. I know that a lot of FlaglerLive commenters have been conditioned to believe that they as citizens can decide who is guilty of a crime. They can’t. Mr. Danko is just talking to hear his head roar.
It is true that the misdemeanor crime of undocumented entry into the U.S. is similar to a trespassing charge, with one exception. The offense of unauthorized crossing of the border carries no statute of limitations, so undocumented immigrants can be arrested forty years after they arrive. For them, the potential of being arrested, charged and convicted of a crime never goes away. Most misdemeanors in Florida carry a one or two-year statute of limitations, except a few based of fraud. Theft by fraud specifically carries a five-year SOL.
Since our president cannot decide guilt or innocence any more than can Ed Danko, when he shouts out to the gullible among us that there are millions of criminal immigrants in the country, he, too, is just talking to hear his head roar. There are millions of people among us who are undocumented (unauthorized) and, if arrested, could be charged with committing and convicted of a misdemeanor. They would then become criminals. But not until those events occur.
Immigration courts are not criminal courts. Immigrants can meet the criteria for an order of removal, without being convicted of a crime. It happens every day.
As is being widely reported, many of the recently rounded up undocumented (unauthorized) immigrants are being released back into the populace, because our federal Congress will not authorize the funds necessary to build additional holding facilities. Once the existing facilities reach saturation, immigrants have to be released.
This shortage of holding facilities why it is documented that during the first Trump administration, 308 convicted murderers were released back into the population. President Obama had signed an executive order that focused on deporting the most serious criminal immigrants among the detainees, which meant that the least serious detained immigrants were to be released first when detention facilities fill to capacity. On Trump’s first day in office, he signed an order rescinding Obama’s order. Since immigration officials could no longer focus on the most serious criminal detainees, the decision whether to release immigrants could no longer be subject to whether they were serious criminals. Some 100,000 criminal immigrants were released in Trump’s four years in office. Some 10,000 of them were arrested after release for committing new crimes. Some of those 100,000 releasees committed new murders. I have been commenting on this ever since I read a study produced by the Cato Institute on the subject.
So, yes, Trump released some 100,000 criminal immigrants into our population during his four years in office. Some of them committed murder after they were released.
I went to the Office of Homeland Security for statistics between the Obama and Trump administrations. In 2010, OHSS documented some 11.6 million unauthorized immigrants in the country. 11.4 million in 2015. 10.5 million in 2020, but that figure was distorted by the pandemic, when large numbers of immigrants voluntarily returned to their home countries due to lack of work during the shutdown. In 2022, the most recent year under OHSS statistics, the number was 11.0 million unauthorized immigrants.
OHSS defines two types of immigrants. Those who are removed from the country by order and those who are returned (turned back) without going through the order of removal process. Those ordered out of the country are subject to additional criminal processes should they be caught after return and prosecuted.
Here are the Obama and Trump numbers, per OHSS. The 2020 numbers are not consistent with the others, again, because of the distortion caused by the pandemic.
2009: Ordered removed – 379,739. Turned back – 582,567.
2010: Ordered removed – 382,449. Turned back – 471,798.
2011: Ordered removed – 390,423. Turned back – 322,047.
2012: Ordered removed – 419,607. Turned back – 231,107.
2013: Ordered removed – 432,228. Turned back – 178,976.
2014: Ordered removed – 405,090. Turned back – 163,843.
2015: Ordered removed – 325,328. Turned back – 129,661.
2016: Ordered removed – 331,717. Turned back – 106,458.
2017: Ordered removed – 287,093. Turned back – 100,695.
2018: Ordered removed – 328,716. Turned back – 159,940.
2019: Ordered removed – 359,885. Turned back – 171,445.
Is it fair to say that a political mythology has been fostered that immigration became a problem only when a new president was sworn into office on January 20, 2021? It seems clear that immigrants have been entering the country in great numbers for decades. The only time we had reverse migration occurred when the entire nation shut down in the spring of 2020. Otherwise, the number of undocumented (unauthorized immigrants stayed basically the same between 2010 and 2022. Yes, there was a significant increase in immigration in 2023, but we needed every one of those extra immigrants to fill the millions of jobs being created by businesses and government agencies all over the country.
Skibum says
Speaking of looney, Ed, I would really love to know why you and other maga extremists have contorted one part of the U.S. Constitution that you like, regarding the 2nd Amendment, believing somehow that our founding fathers’ words about a “well regulated militia” extrapolates to mean that every Dick and Harry in America are by some divine wisdom guardians who must protect the homeland from invaders like the British who the founding fathers were so afraid of taking our land away from us, and able to possess and bear all sorts of weaponry without restriction. But then you take another part, the amendment about birthright citizenship that you hate and make a totally opposite argument, attempting to say the words in the amendment should be disregarded or just ruled that the plain language doesn’t really mean what it clearly says . Wow, I think I just described the definition of the word LOONEY!
DaleL says
Section 5 of the 14th Amendment states that: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Clearly any executive order is unconstitutional. It is Congress, not the President that has constitutional authority to enforce (interpret) the 14th Amendment.
Birthright citizenship in the 14th Amendment applies to the “person”. The citizenship status of the parents and/or guardians is not mentioned and thus of no importance. The only phrase which is open to interpretation is “…subject to the jurisdiction thereof,…”
Until a child is emancipated, they are under the control of their parents and not normally directly subject to laws and regulations. Presumably, if Congress passed a law that the 14th Amendment birthright citizenship applied to persons born in the USA upon their being emancipated from their parents, it could end birthright citizenship as we know it. Ultimately, SCOTUS would then have to decide if such a law is constitutional.
Willy Boy says
Ed, how is your vision? I ask this as your head is so far up your ass you must be blind!