Wilmington, Delaware:
The US Supreme Court will hear arguments on Thursday on President Donald Trump’s bid to broadly enforce his executive order ending birthright citizenship, a principle that has been recognized in the United States for more than 150 years.
Below is a look at US birthright citizenship and Trump’s legal authority to restrict it.
What Is Birthright Citizenship?
Anyone born in the United States is considered a citizen at birth, which derives from the Citizenship Clause of the 14th Amendment that was added to the US Constitution in 1868.
The amendment states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The Immigration and Nationality Act of 1952 also defines citizens and includes similar language.
There is an exception for people born in the United States to a foreign diplomatic officer with diplomatic immunity because such officials are not subject to the jurisdiction of the United States.
If courts decide the Constitution protects birthright citizenship, then only a constitutional amendment could change that. An amendment would require support from two-thirds of both houses of the US Congress and approval by three-quarters of state legislatures, a process that would likely take years. The Constitution has not been amended since 1992.
There were an estimated 11 million immigrants in the US illegally in January 2022, according to a US Department of Homeland Security estimate, a figure that some analysts now place at 13 million to 14 million. Their US-born children are considered by the government to have US citizenship.
What Did The Trump Executive Order Say?
Trump issued the order when he took office on January 20. It directed federal agencies to refuse to recognize the citizenship of US-born individuals who do not have at least one parent who is an American citizen or a lawful permanent resident.
Trump’s crackdown on illegal immigration has been one of his most popular policies, and he has complained about “birth tourism” or the practice of women from abroad visiting the United States for the purpose of giving birth and conferring US citizenship on their offspring.
What Has The Supreme Court Said In The Past?
The Supreme Court has not addressed whether the Citizenship Clause applies to US-born children of people who are in the United States illegally.
The main birthright citizenship case is from 1898, when the Supreme Court ruled that the son of lawful immigrants from China was a US citizen by virtue of his birth in 1873 in San Francisco. The man, Wong Kim Ark, had been denied re-entry to the United States after a visit to China at a time when immigration from China was severely restricted.
The Supreme Court also ruled in 1884 in a dispute over voter registration that US-born John Elk was not a citizen because he was born as a member of a Native American tribe and therefore not subject to US jurisdiction. Congress extended US citizenship to Native Americans in 1924.
What Has Trump Argued To The Supreme Court?
The executive order has been blocked by three US district courts on a nationwide basis for violating the Constitution.
The Trump administration has asked the Supreme Court to allow it to begin carrying out the executive order by narrowing the lower court injunctions to apply only to the plaintiffs in the cases, or several organizations and individuals, 22 states, the District of Columbia, and San Francisco. It has been argued that judges lack the power to issue injunctions with nationwide scope.
While the administration defended the constitutionality of the executive order, it did not ask the Supreme Court, which has a 6-3 conservative majority, to resolve that question.
The administration has argued that the term “jurisdiction” in the Citizenship Clause refers to “political jurisdiction,” which it said is defined by a person’s allegiance. Applying that test, the administration argued that citizenship should be denied to US-born children who did not have one parent legally allowed to permanently reside in the United States. It argued that the universal application of birthright citizenship has created strong incentives to enter the country illegally and led to national security risks from conferring citizenship on people who may have an allegiance to a US adversary.
What Do The Legal Challengers Say?
The states and other opponents of the executive order said it violated the Constitution’s 14th Amendment, usurped the legislative power of Congress, and violated immigration and administrative law.
They said the executive order would create chaos by upending the American practice of proving citizenship by presenting a birth certificate, which identifies the place of birth and not the residency status of the parents.
Nationwide injunctions issued by a single judge in a case brought by a single or limited number of plaintiffs have become a controversial practice, often criticized by Supreme Court justices. The plaintiffs said the birthright citizenship case requires a nationwide injunction to preserve the uniformity of US citizenship.
(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)
