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Justices are hearing arguments this morning in a case that almost certainly will result in a historic ruling: At issue is President Trump's challenge to a constitutional provision that has long been interpreted to guarantee American citizenship to every child born in the United States.
Listen to arguments and live NPR special coverage beginning at 10 a.m. ET:
Trump has long maintained that the Constitution does not guarantee birthright citizenship. So, on Day 1 of his second term, he issued an executive order barring automatic citizenship for any baby born in the U.S. whose parents entered the country illegally or who were here legally, but on a temporary, or even a long-term visa.
"We are the only country in the world that does this with birthright," Trump said as he signed the executive order. "And it's absolutely ridiculous."
That actually is not true. There are nearly 33 countries, mainly in North and South America, that have birthright citizenship — including, among others, Canada, Mexico, Brazil and Argentina.
Can't see the video above? Watch it here.
D-Day for Trump's attack on birthright citizenship
But Trump has long been determined to rid this country of its longstanding protection for birthright citizenship. Wednesday is D-Day in that effort, and to understand the issues, it's worth taking a stroll through American history.
While citizenship was not defined at the nation's founding, the colonists were largely pro-immigrant, according to University of Virginia law professor Amanda Frost, author of American Birthright: How the Citizenship Clause made America American, due out in September.
The founders "wanted to populate this mostly empty continent," she observes, adding that, in fact, one of the complaints against the British king in the Declaration of Independence was that the British "were discouraging immigration."
Indeed, she notes, after the Revolutionary War, even those who had been loyal to the king but wanted to stay in America were granted U.S. citizenship.
Trump's view of the 14th Amendment
Birthright citizenship didn't make it into the Constitution, though, until after the Civil War, when the nation enacted the 14th Amendment to reverse the Supreme Court's infamous Dred Scott decision — a ruling that in 1857 declared that Black people, enslaved or free, could not be citizens of the United States.
To undo that decision, the post-Civil War Congress passed a constitutional amendment that defines citizenship in broad terms. It says, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States."
President Trump, however, maintains that the constitutional amendment was intended to be more limited than it has been in practice. "This was meant for the slaves … for the children of slaves," Trump said last January. "I'm in favor of that. But it wasn't meant for the entire world to occupy the United States."
But as the University of Virginia's Frost notes, the framers of the 14th Amendment had more than one explicit purpose. They wanted a clear, bright line definition of citizenship; they wanted the former slaves and their children to be citizens, and they wanted to include immigrants, many of whom were the targets of great hostility.
"I like to remind my students that between 1845 and 1855, approximately 2 million people from Ireland fled to the United States," Frost observes. They were fleeing from famine and harsh British rule. And while "there certainly was some prejudice and discrimination and xenophobia," she says, "their children soon would automatically become American citizens" when born on U.S. soil after enactment of the 14th Amendment.
Trump's interpretation of the 14th Amendment is avowedly far more restricted. What's more, it has not been embraced by the courts or the legal norms of the country for 160 years.
The counterargument
"The president's executive order is attempting a radical rewriting of that 14th Amendment guarantee to all of us," says Cecillia Wang, legal director of the American Civil Liberties Union.
Indeed, even as both Republican and Democratic administrations have sought in modern times to deport large numbers of individuals who have entered the country illegally, the notion of birthright citizenship has remained so entrenched that during World War II when Japanese citizens were held as enemy aliens in U.S. detention camps, their newborn children were automatically granted American citizenship because they were born on U.S. soil. And Congress later codified that understanding in the 1940s, '50s and '60s.
At the Supreme Court on Wednesday, the justices are likely to focus on some of the key court decisions that have protected birthright citizenship during the past century and a half. Perhaps most important among these is the case of Wong Kim Ark, born in San Francisco in 1873 to Chinese immigrants who ran a small business in the city. Back then, immigrants like Wong's parents were largely free to enter the U.S. without any documentation, but his parents eventually returned to China. And after their son visited them in 1895, officers at the port in San Francisco refused to allow him back into the United States, contending that he was not a qualified citizen.
Wong challenged the denial and, in 1898, the Supreme Court ruled in his favor. By a 6-2 vote, the justices interpreted the words "subject to the jurisdiction thereof" to mean that all children born in the U.S. were automatically granted citizenship. The court noted that only three exceptions were specified in the amendment: The children of diplomats were not deemed to be U.S. citizens because their allegiance was to another country; the children of occupying armies were similarly excepted, as were the children of Native American tribes. Of these three exceptions, the only one that still applies is to the children of diplomats, as there are no invading armies, and Native Americans were granted automatic citizenship in 1924.
The Trump administration, however, argues that Wong Kim Ark's situation was very different from many of the children who become automatic American citizens today, because Wong's parents, though undocumented, were here legally, by virtue of having a permanent residence in the U.S. And the Trump administration points to language in the 1898 Supreme Court opinion that assumes the parents had legal status in the country because they had a permanent residence in San Francisco.
The Trump administration makes an even broader argument. "An individual who is naturally born in the United States is only considered a citizen if their parents have allegiance to the nation," says Daniel Epstein, vice president of America First Legal, the organization founded by the architect of Trump's immigration policies, Stephen Miller, White House deputy chief of staff. "It is a misdemeanor to come into the United States without authorization. That is a crime," he says. "That is strong evidence that you don't kind of meet the traditional notion of allegiance."
"We do not punish children for the sins of their parents"
Countering that argument, the ACLU's Wang will tell the Supreme Court that the men who wrote the 14th Amendment deliberately chose to confer automatic citizenship on the child, not the parent.
"And the idea — that actually goes back to the founding — is that in America we do not punish children for the sins of their fathers, but instead we wipe the slate clean. When you're born in this country, we're all Americans, all the same," Wang says.
Texas Sen. Ted Cruz is supporting the president's position, along with 11 other GOP senators, and 16 House members, who signed on to the America First brief.
"As a policy matter, birthright citizenship is stupid," Cruz says, "because it incentivizes illegal immigration. It makes absolutely no sense that someone breaks the law and they get rewarded with a very, very, precious gift, which is American citizenship."
Can an executive order trump a constitutional amendment?
The ACLU's Wang counters that Trump is trying, by executive order, to change the meaning of the 14th Amendment to the Constitution, a measure that was approved overwhelmingly by the Congress in 1866 and, after a great public debate, ratified by more than three-quarters of the states. She argues that the consequences of such a dramatic change by executive fiat would have untold consequences.
"What will immediately happen is that every month, tens of thousands of U.S.-born babies will be stripped of their citizenship. They may be stateless because their parents' country of nationality may not consider them to be citizens. And so you'll see a permanent underclass of people who have no nationality, who are living in the United States, who can't pass on their nationality to their children born in the U.S.
In a separate brief, the U.S. Conference of Catholic Bishops stresses the problems that would be created by generation after generation of children who are stateless, with no country to call home, and no citizenship to pass on to their children.
"The children … would be the ones to bear the brunt of this," says Bishop Daniel Flores, vice president of the bishops conference. "I have people asking this now in my diocese. 'Bishop, am I going to get into trouble if I give food to somebody that I'm not sure of their documentation? … Can we help these people? Because we think we need to, because they're people and they were born here."
The Trump administration counters that birthright citizenship raises two other problems: a generic potential threat to national security and the problem of so-called "birth tourism."
In fact, even birthright defenders concede that a cottage industry has long existed in which women pay money to come to the U.S. and have their children here. But the numbers are consistently very small. Even the Center for Immigration Studies, a think tank that favors limited immigration, estimates only 20,000 to 26,000 birth tourism children are born in the U.S. each year, compared to the overall birth count of 3.6 million babies born each year.
Daniel Epstein of America First Legal contends that numbers are not important. "I view just one illegal act as illegal, and birth tourism is illegal and it's against the law, and the law matters."
Population experts say that if automatic birthright citizenship were to be voided, the consequences would be profound — and counterintuitive. The Population Research Institute at Penn State, for instance, estimates that a repeal of birthright citizenship would result in 2.7 million more people living here illegally by 2045, people who previously would have been entitled to birthright citizenship, but now have no such citizenship for themselves or to pass on to their children or the generations thereafter.
Also likely to come up at today's Supreme Court argument are practical questions, like those raised by Justice Brett Kavanaugh last year in a related case. How would a hospital know that the parents of a child are illegally in the country? What would hospitals do with a newborn? What would states do? The answer from Trump's solicitor general, D. John Sauer, was "Federal officials will have to figure that out."
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