WASHINGTON—Today, the Immigration Reform Law Institute (IRLI) filed a brief in a Washington State federal district court in a case on birthright citizenship. Plaintiffs, a group of states, claim that President Trump’s executive order restricting birthright citizenship is unconstitutional on its face, and that children of illegal aliens are guaranteed citizenship in the Fourteenth Amendment.
Possibly, the judge hearing the case agrees. "I've been on the bench for over four decades, and I can't remember another case where the question presented was this clear," proclaimed the judge, according to press accounts. "This is a blatantly unconstitutional order. Where were the lawyers when this decision was being made?"
From this statement alone, it is unclear exactly why the judge thinks Trump’s order is unconstitutional—it could be because he agrees with the plaintiffs that children of illegal aliens and tourists are birthright citizens, or it could only be because he believes that others excluded by the order, such as children of foreign students living in the United States, have birthright citizenship. In any event, IRLI concentrates in its brief on explaining controlling Supreme Court precedent on the question.
The Citizenship Clause of the Fourteenth Amendment provides that persons born in the United States while “subject to the jurisdiction” of the United States are citizens. The question then becomes whether illegal aliens—and certain others present in the United States, such as tourists—are subject to the jurisdiction of the United States.
To answer that question, IRLI analyzes a controlling Supreme Court case, United States v. Wong Kim Ark, decided in 1898. Wong Kim Ark was born in San Francisco to Chinese parents legally residing there. He later returned with his parents to China. Denied readmittance, Wong Kim Ark argued before the Supreme Court that the Fourteenth Amendment made him a citizen of the United States at his birth.
The Supreme Court agreed, holding that, because—and only because—his parents were legally residing in the United States when he was born here, he was a citizen at birth under the Fourteenth Amendment. The holding of this case is widely misread as conferring citizenship at birth under the Fourteenth Amendment on all persons born in the United States (with the narrow exceptions of children of diplomats, members of an invading force, or Indians born in the allegiance of a tribe). IRLI shows in its brief that this reading is wrong; the Court clearly excluded the children of illegal aliens and non-U.S. residents from constitutional birthright citizenship:
Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here; and are “subject to the jurisdiction thereof.”
In other words, the Supreme Court has clearly held that, to be a citizen at birth under the Fourteenth Amendment, one must be born in the United States to a parent who, at the time, resided with permission in the United States. This rule happens to exclude the children of both illegal aliens (who do not have permission to be in the country) and tourists (who do not “reside” here) from constitutional birthright citizenship.
Thus, the plaintiffs’ claim that President Trump’s order is unconstitutional on its face—that is, would have no valid application in any situation—is wrong: the order correctly denies birthright citizenship to children of illegal aliens, tourists, and others who do not reside with permission in the United States.
“Remarkably, the broad but reasonable holding of Wong Kim Ark—excluding the children of non-residents and illegal aliens from citizenship at birth under the Constitution—has slept in the law books for 127 years,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Meanwhile, millions, including the children of so-called ‘birth tourists,’ have been assumed to be citizens even though the Supreme Court has held they are not. In America, neither foreigners with no connection to this country nor those here against the will of the nation should get to decide who shall be American citizens. President Trump’s order stops that going forward, and we hope our brief allows the court to recognize that this challenge to it must fail.”
The case is State of Washington v. Trump, No. 2:25-cv-00127 (W.D. Wash.).
