On Thursday, the U.S. Supreme Court will hear arguments regarding three preliminary injunctions against a January 20 executive order that purported to eliminate birthright citizenship except for children of U.S. citizens or lawful permanent residents. The main issue is whether the Court should issue stays that limit the injunctions to the plaintiffs who sought them, including named members of organizations that challenged President Donald Trump's order. But the Trump administration also has argued that all three judges erred in concluding that the edict flouted longstanding Supreme Court precedent, and several briefs supporting the government's stay applications echo the implausible claim that the order is consistent with the relevant case law.
At the heart of that dispute—which goes to the underlying merits of the injunctions, regardless of their scope—is the meaning of the Court's ruling in the 1898 case United States v. Wong Kim Ark. In that decision, the Court concluded that Wong Kim Ark, who was born and raised in San Francisco, was a U.S. citizen and therefore could not be prevented from returning to the United States after a visit to China. The Court held that the 14th Amendment, which says "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are U.S. citizens, "affirms the ancient and fundamental rule of citizenship by birth."
Wong Kim Ark noted two traditional exceptions to that rule: for children of diplomats and children of foreign invaders. It recognized a third exception in the American context: Like those two other categories, the Supreme Court said, "members of the Indian tribes owing direct allegiance to their several tribes" were not subject to U.S. "jurisdiction" within the meaning of the 14th Amendment. "The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States," the Court said. Apart from those three exceptions, in other words, anyone born in the United States automatically becomes a U.S. citizen.
