WASHINGTON—Anti-borders activist attorneys are challenging President Trump’s historic executive order restricting birthright citizenship in courts all over the country. Now, in the U.S. District Court for the Southern District of New York, plaintiffs claim that the President’s order is unconstitutional on its face, because even children of illegal aliens are guaranteed citizenship in the Fourteenth Amendment.
In response, the Immigration Reform Law Institute (IRLI) today filed a brief demonstrating that the plaintiff is wildly wrong under controlling precedent.
In its brief, IRLI focuses on the true meaning of an historic Supreme Court case: United States v. Wong Kim Ark, 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 plaintiff’s 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 have permission to reside in the United States.
“This precedent has been sleeping in the law books, and largely mischaracterized in law schools and by academics, for 127 years,” said Christopher J. Hajec, acting executive director and general counsel of IRLI. “Many people are in for a big surprise when they realize what it really says—and that the Supreme Court itself is bound by this precedent, as of course are all other courts. We hope the district court sees this as an initial matter, and denies relief.”
The case is New York Immigration Coalition v. Trump, No. 25-cv-1309 (S.D.N.Y.).
