WASHINGTON—The First Circuit Court of Appeals is now hearing the merits of the appeal of a lower-court injunction blocking President Trump’s executive order reigning in birthright citizenship.
In this appeal, the Immigration Reform Law Institute (IRLI) has filed a brief demonstrating that the activist plaintiffs claiming that children of illegal aliens are guaranteed citizenship in the Fourteenth Amendment—and the lower court that agreed with them—are wildly wrong under controlling Supreme Court precedent.
Alone among the participants in this case, IRLI hones in on the true meaning of the precedent that controls its outcome: United States v. Wong Kim Ark, which the Supreme Court decided in 1898. In that case, the Supreme Court held that, because—and only because—the parents of a man of Chinese ancestry were legally residing in the United States when he was born here, he was a U.S. 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” [under the Citizenship Clause of the Fourteenth Amendment].
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 parents 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.
“Our brief thoroughly demonstrates the real meaning of Wong Kim Ark,” said Dale L. Wilcox, executive director and general counsel of IRLI. “There is no other way to explain the Court’s language, and in fact the other side never tries; they just pretend the Court never said what it said. Given all the misleading press reports and erroneous district court opinions on this issue, people are in for a big surprise when they realize that the Supreme Court itself is bound by this precedent, as of course is the First Circuit. We hope the latter court figures this out now, and reverses this injunction.”
The case is New Hampshire Indonesian Community Support v. Trump, Nos. 25-1348 (First Circuit).
