Over 125 Years Ago, a Chinese American Won Birthright Citizenship for All. Why Is the Supreme Court Re-Litigating It?
The US Supreme Court has, in a number of cases in recent history, nakedly deferred to President Trump and waded into some of the same slop as a generic right-wing uncle on Facebook. But on the issue of birthright citizenship, even the majority Republican Supreme Court seems to be raising its eyebrows.
Last week, the Supreme Court heard oral arguments on President Trump’s executive order seeking to restrict birthright citizenship, the legal principle by which almost anyone born in the US is an American citizen, regardless of their parents’ status. The text of the 14th Amendment’s citizenship clause, which has long been interpreted as guaranteeing birthright citizenship, is fairly unambiguous: “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 court seemed largely skeptical of the government’s argument, with Justice Neil Gorsuch, a Trump appointee, stumping Solicitor General John Sauer on whether the government’s position would guarantee birthright citizenship for Native Americans; and another Trump appointee, Brett Kavanaugh, questioning the relevance of Sauer’s argument that birthright citizenship makes the US “an outlier among nations.” (Trump has frequently, and falsely, claimed that the US is the only country with birthright citizenship, although Sauer did not; while the right is rare in Asian and European nations, more than 30 countries, most of them in the Americas, guarantee citizenship to children born on their soil, regardless of the parents’ status.)
The question of birthright citizenship has long been a target of the anti-immigration right, which coined the slur “anchor babies” in reference to children born to noncitizen parents in a country that grants citizenship at birth. During a particularly awful 2010 interview with Anderson Cooper, then-Rep. Louie Gohmert (R-Texas) sought to fuel terrorism hysteria by doubling down on a claim he made before Congress that the principle would be exploited by terrorists to secure citizenship for “terror babies.”
Opponents of automatic birthright citizenship, including the Trump administration, have argued that the citizenship clause was intended to bestow citizenship not on the children of immigrants but formerly enslaved people. The 14th Amendment overturned the notorious 1857 Dred Scott v. Sandford decision, which held that people of African descent whose ancestors were enslaved when they came to the US were not subject to the protections of citizenship. Trump himself ranted earlier this week on Truth Social that birthright citizenship only applied to the “BABIES OF SLAVES!”
But these questions have already been raised, and resolved, in a 1898 case involving a man whose immigrant parents were subject to even more stringent immigration restrictions than today. Wong Kim Ark was born in the 1870s, in San Francisco, to Chinese nationals who later returned to China amid an economic downturn and rising discrimination against the Chinese in America. He traveled to China to visit his parents in 1894, but was later denied re-entry to the US, the country of his birth. The officials who barred Wong’s entry cited the Chinese Exclusion Act of 1882, one of the earliest US laws restricting immigration, enacted nine years after his birth, which barred all Chinese immigration for 10 years and prevented Chinese nationals from becoming US citizens.
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A local Chinese American group filed for a writ of habeas corpus and said Wong’s denial violated his rights as a US citizen, while the US government argued that Wong was a “subject of the Emperor of China,” covered by the Exclusion Act and a series of other anti-Chinese laws that followed over the 1880s and 1890s. Almost two and a half years later, the Supreme Court ruled 6-2 that Wong, and almost anyone else born in the United States, was a citizen under the text of the Citizenship Clause, with narrow exceptions for the children of diplomats and “enemies within and during a hostile occupation of part of our territory.”
