WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a brief in the U.S. Court of Appeals for the Ninth Circuit in a case in which several 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.
In an extremely flawed decision, the lower-court judge hearing the case issued a preliminary injunction against the order, agreeing that the states were likely to succeed in showing that it is invalid on its face. According to the judge, virtually everyone born on American soil, including the children of illegal aliens and tourists, is entitled to citizenship under the Fourteenth Amendment. The government appealed.
Alone among the participants in this case, IRLI, in its brief on appeal, shows what still-controlling Supreme Court precedent really says about this issue. 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 United States v. Wong Kim Ark, which the Supreme Court 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:
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, had permission to reside in the United States. This rule excludes the children of both illegal aliens and tourists from constitutional birthright citizenship, since neither class of aliens has permission to reside here.
Thus, the lower court’s view that President Trump’s order is likely 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 have permission to reside in the United States.
“Remarkably, the eminently reasonable holding of Wong Kim Ark has been ignored 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. 25-807 (Ninth Circuit).
