The Birthrighters’ Precedent Problem
Nearly three weeks have elapsed since President Trump claimed that an executive order curtailing territorial birthright citizenship was “in the process.” It’s anyone’s guess as to which types of distinctions the order would draw. Would children of lawful permanent residents be affected? Or of persons with temporary protected status? Those with student or work visas? But the administration’s likely justification for such a move is far less mysterious. It involves selectively ignoring applicable Supreme Court precedent.
Section One of the Fourteenth Amendment opens with the guarantee that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In the landmark case of United States v. Wong Kim Ark (1898), the Court held that a child born in California of Chinese parents living in California became a U.S. citizen at birth. The Court ascribed that result to Section 1’s Citizenship Clause, which no act of Congress — and certainly no executive order — can override.
Numerous observers have remarked that Wong Kim Ark’s parents were not unlawfully present in the United States when their son was born in 1873. (Congress did not generally begin restricting immigration until years later, after all.) In their view, the Court has never decided whether the children of undocumented immigrants are “subject to the jurisdiction” of the United States at birth. Wong Kim Ark was a case-specific holding, limited to its precise facts.
That characterization is nonsense. The Justices did not simply proclaim that “Respondent wins.” Wong Kim Ark contained statements of law that both resolved the case at hand and dictated the outcomes of future cases falling within their scope.
After exhaustively surveying the relevant common-law history, the Wong Kim Ark Court concluded that all persons born within the territorial United States to persons residing here are U.S citizens from the moment of birth, unless their parents are (1) foreign ambassadors, (2) aliens serving on a “foreign public ship[],” or (3) “enemies within and during a hostile occupation of part of our territory.”* Wong Kim Ark thus established a comprehensive framework for assessing the citizenship status of every person born within the United States. Because none of these exceptions applied to Wong Kim Ark himself, the Court held, he became a U.S. citizen at birth.
The Court has never granted review specifically to address whether the native-born children of undocumented immigrants are U.S. citizens at birth. Fair enough. But neither has the Court held that Congress may regulate the interstate shipment of strawberries, that public schools may not administer communion at graduation, that it would be unconstitutional to execute someone for jaywalking, or that states may not require congressional candidates to certify their opposition to polygamy. Are any of these open questions? Of course not. The above results follow ineluctably from doctrinal principles that cannot be confined to their originating circumstances. The Justices have decided some cases that they have not yet had occasion to decide.
It would be one thing to ask the modern-day Court to repudiate Wong Kim Ark. But to suggest that Wong Kim Ark — on its own terms — has no ramifications for the children of unlawful immigrants is to embrace interpretive nihilism. It is to deny that judicial reasoning has any enduring value.
In fact, the Court has repeatedly applied the rule of Wong Kim Ark to such children, layering over a century of judicial consensus onto that case’s straightforward command. Examples abound, but four amply illustrate the point. In Hirabayashi v. United States (1943), the Court observed that tens of thousands of Americans of Japanese descent were “citizens because born in the United States.” No further refinement — no detailed inquiry into familial immigration histories — was necessary to substantiate that claim. In United States ex rel. Hintopoulos v. Shaughnessy (1957), the Court stated that a child born in the United States was “an American citizen by birth,” despite his parents’ “illegal presence.” INS v. Rios-Pineda (1985) similarly involved alien parents whose child became “a citizen of this country” at birth, even though they had “enter[ed] . . . without inspection.” Lastly, even though both sets of respondents in INS v. Errico (1966) had obtained admission through fraud, the Court explicitly acknowledged that their native-born children became American citizens at birth.
Every federal court of appeals (save the highly specialized Federal Circuit) has applied the rule of Wong Kim Ark without the slightest critical comment. At least the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits have recognized the American citizenship of particular children born to parents unlawfully present. And the D.C. Circuit has done so wholesale: “It may now be stated as an established rule that every person born within the United States (except in the case of children of ambassadors, etc.), whether born of parents who are themselves citizens of the United States or of foreign parents, is a citizen of the United States.” Persons “born in the United States,” the D.C. Circuit later explained, are “possessed . . . of a United States citizenship conferred upon them by the Constitution.”
And that’s only the first precedential obstacle to Trump’s planned executive order. The second stems from the Supreme Court’s equal-protection jurisprudence. Section 1 of the Fourteenth Amendment prohibits each state from “deny[ing] to any person within its jurisdiction the equal protection of the laws” (emphasis added). According to Wong Kim Ark, any person deemed to be “within [the] jurisdiction” of a state for these purposes is necessarily “subject to the jurisdiction” of the United States. And in Plyler v. Doe (1982), the Court held that undocumented aliens are “within [the] jurisdiction” of any state in which they reside. “[S]uch presence,” the Court explained, subjects an alien to “the full range of obligations imposed by the State’s civil and criminal laws.” In short, “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
There’s no getting around it: the Supreme Court has forbidden the political branches from construing the Citizenship Clause in a way that excludes children born of aliens living in the United States. It is theoretically possible that the Court could renounce its prior decisions, upending over a century of settled administrative practice. (Given the Court’s insistence on across-the-board adjudicative retroactivity in the civil context, I wouldn’t count on it.) But unless that happens, no federal court in the country will interpret Section 1’s Citizenship Clause to license a hereditary underclass. To suggest otherwise is sheer fantasy.
* The Court identified one additional exception: “children of members of the Indian tribes owing direct allegiance to their several tribes.” But this carve-out was superseded by a 1924 Act of Congress granting territorial birthright citizenship to all Native Americans.
