WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a brief in the Supreme Court in three cases in which plaintiffs 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 various flawed decisions, lower courts have issued nationwide preliminary injunctions against the order, agreeing that the plaintiffs were likely to succeed in showing that it is invalid on its face. According to these lower courts, virtually everyone born on American soil, including the children of illegal aliens and tourists, is entitled to citizenship under the Fourteenth Amendment.
The government has made emergency applications to the Supreme Court to stay or suspend these preliminary injunctions pending appeal, arguing that they should not be nationwide, but limited in their scope. In support of these applications, IRLI addresses another issue: whether the preliminary injunctions were properly issued at all. IRLI shows that they were not, because the plaintiffs were not likely to succeed on the merits of their claims concerning birthright citizenship.
Alone among the participants in these cases, IRLI, in its brief to the Court, 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.
The Supreme Court clearly held in Wong Kim Ark 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 courts’ 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.
“After four years of watching our borders overrun by Joe Biden’s destructive policies, America cannot afford to ignore the Court’s holding in Wong Kim Ark,” said Dale L. Wilcox, executive director and general counsel of IRLI. “The intent of that ruling has been subverted for more than a century by the anti-borders activists, who have normalized citizenship to people that were never meant to receive it. We finally have a president who is serious about securing our borders, and the Supreme Court should declare his executive order to be constitutional.”
The cases are Trump v. Casa, Inc., No. 24A884, Trump v. State of Washington, No. 24A885, and Trump v. State of New Jersey, No. 24A886 (Supreme Court).
