The Plot Against Birthright Citizenship

In August 2015, Donald Trump sat down to talk with then–Fox News host Bill O’Reilly about one of his central campaign promises: the mass deportation of 11 million undocumented immigrants. “Our country is going to hell,” Trump said. “We have to start a process where we take back our country.”

O’Reilly found the plan ridiculous. Such a colossal and expensive undertaking, the conservative host said, would take decades. Before then, the courts would stop sweeping raids. The idea, O’Reilly continued, was just “not going to happen.” Perhaps the most obvious reason why, he said, was the 14th Amendment, which “says if you’re born here, you’re an American—and you can’t kick Americans out.” O’Reilly almost screamed at one point: “If you’re born here, you’re an American—period! Period!”

Trump was unconvinced. “Many lawyers are saying that’s not the way it is,” he insisted. The incoming president’s view then, and now, is that the American children of undocumented immigrants should not be entitled to automatic citizenship. And, if prompted to weigh in on this issue, he thought the courts would agree.

“I’d much rather find out whether or not ‘anchor babies’ are actually citizens,” Trump said, “because a lot of people don’t think they are.”

The first Trump administration didn’t test this theory. The second one likely will. The former president has made the end of birthright citizenship a cornerstone of his immigration agenda and mass deportation plan. Automatic citizenship for the children of undocumented immigrants, Trump said in a campaign video from May 2023, “is based on a historical myth and a willful misinterpretation of the law.”

In his next term, Trump will aim to dispute more than a century of legal precedent and deal a blow to a bedrock constitutional understanding of what it means to be an American citizen. He cannot change everything with the stroke of a pen. But Trump can—and says he will—begin the long task of dismantling birthright citizenship. There is a playbook, decades in the making.

The process would begin with a presidential action. Couching it as an attempt to tackle the threat of an “illegal foreign invasion” in the form of unlawful migration, Trump has promised to sign an executive order on day one that would challenge birthright citizenship. The proposed rule would instruct federal agencies to deny passports and Social Security numbers to children born to immigrants, unless one of the parents is a citizen or green card holder. Crucially, his candidacy platform stated, the executive order would “explain the clear meaning of the 14th Amendment.”

The 14th amendment’s Citizenship Clause establishes that “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.” Ratified after the Civil War to nullify the Supreme Court’s Dred Scott v. Sandford decision, which ruled that Black Americans couldn’t be citizens of the United States, it defined citizenship and enshrined the long-standing doctrine of jus solis (“right of soil”)—meaning citizenship by place of birth—in constitutional law.

While the president-elect can’t end birthright citizenship for the US-born children of undocumented immigrants with an executive order alone, he can conceivably set up a legal challenge to the reigning interpretation. As Trump hinted at in the 2015 interview with O’Reilly, he and his allies might look at the courts to do their bidding. And they have a playbook for it: undermine the lesser-known Supreme Court landmark decision in the 1898 Wong Kim Ark case reaffirming the guarantee of citizenship to virtually everyone born in the United States.

For years, opponents of birthright citizenship for the children of unauthorized immigrants have toyed with the possibility of overturning the Wong Kim Ark precedent. Increasingly, such a line of attack seems less hypothetical—especially in light of a Supreme Court conservative supermajority that has demonstrated a willingness to undo their major rulings, like Roe v. Wade, regardless of what the political repercussions and real-life consequences might be.

Inviting the Supreme Court to revisit Wong Kim Ark, explains Robert L. Tsai, a professor of constitutional law at Boston University, “would give the Trump administration the opportunity to ask the court to either overrule or narrow” the well-established legal precedent. “You’ve got a president and a bunch of people around him who disagree fundamentally with notions of citizenship and how they’ve been done for a very long time,” he says. “We’re going to find out just how far they can push those changes.”

It would be nothing short of seismic. “It’s really 100 years of accepted interpretation,” Hiroshi Motomura, a scholar of immigration and citizenship at UCLA’s law school, told me of birthright citizenship. Ending birthright citizenship would cut at the core of the hard-fought assurance of equal treatment under the law, he said, “basically drawing a line between two kinds of American citizens.”

To understand how an attack on birthright citizenship could be mounted, let alone prevail, it’s important to know what stands in the way of it.

Wong Kim Ark was careful. Before he departed California in 1894—boarding a steamship to visit his parents in the Guangdong province of China—Kim Ark ensured he had all the required documents to return. Born in San Francisco in the 1870s to immigrants of humble means—who resettled in China after several years of permanent residence in America—Kim Ark had made the trip before without much trouble. In one of those travels to the family’s ancestral home, in 1889, he married Yee Shee, with whom he would have four children.

But this time, anti-Chinese animus, violence, and laws were on the rise. In 1882, the US Congress passed the Chinese Exclusion Act. The law barred the naturalization of Chinese nationals and the immigration of laborers from China, who were perceived as a threat to the white working class. It marked the first federal restriction on immigration explicitly based on race.

As Carol Nackenoff and Julie Novkov detail in their 2021 book, American by Birth: Wong Kim Ark and the Battle for Citizenship, Kim Ark, who worked as a cook from an early age, carried with him an affidavit signed by three white men as witnesses to prove he had been born in California. Still, when he arrived at the San Francisco port aboard the Coptic in August 1895, a customs collector by the name of John Wise denied him entry. Kim Ark was held offshore for five months.

Departure Statement of Wong Kim Ark.National Archives

Wise, known for his anti-Chinese bias, considered himself a “zealous opponent of Chinese immigration.” He made it exceedingly difficult for even those exempted from the ban—such as merchants, diplomats, and teachers—to be allowed into the United States. Once, Wise even wrote a poem mocking a Chinese man he had ordered deported that read, “So just to make this poor Wong Fong feel very good and nice, I’ve sent him back to China where he can eat his mice.” 

At the time, anti-Chinese exclusionists had been looking for a test case to challenge birthright citizenship. They considered Chinese Americans incapable of assimilating. But the law had been clear that did not matter. A federal court had ruled just a few years earlier that a 14-year-old born in California to Chinese immigrants—who had been barred by customs officials—was a citizen under English common law and the 14th Amendment. In Kim Ark, they thought they had found an opportunity to set a different legal precedent.

With help from the Chinese Six Companies organization and lawyer Thomas Riordan, Kim Ark filed a habeas corpus petition challenging his confinement and defending his right to reenter the United States as a recognized native-born citizen. “Think of all the people in this country who have been born of parents who owed allegiance to either Great Britain, Germany, Italy, or some other European power,” Riordan argued in court. “Are all of these people to be declared not citizens?”

His goal beyond helping Kim Ark, Nackenoff and Novkov write, was to “have the broad principle of citizenship settled for all time.”

On behalf of the federal government, US District Attorney Henry S. Foote made the case that Kim Ark had become a citizen by “accident of birth” and his “education and political affiliations remained entirely alien to the United States.” Because Wong’s parents were ineligible for naturalization and “subjects of the Emperor of China,” the argument went, Kim Ark himself was “by reason of his race, language, color and dress, a Chinese person.”

A district court judge disagreed, finding that “it is enough that he was born here, whatever was the status of his parents” and that a ruling against Kim Ark, would have resulted in countless people “denationalized and remanded to a state of alienage.”

The government appealed and the case went before the Supreme Court. Delivering a 6–2 decision in March 1898, the justices determined that Kim Ark was indeed a citizen, regardless of his parents’ ancestry. “The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory” Justice Horace Gray wrote for the majority, “including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory.”

To exclude “from citizenship the children, born in the United States, of citizens or subjects of other countries,” the opinion continued, “would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.”

Chief Justice Melville Fuller dissented, arguing that the 14th Amendment didn’t “arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this Government, are and must remain aliens.”

Nonetheless, the majority’s understanding of the 14th Amendment provided, in no uncertain terms, that birthright citizenship extended to the children of immigrants, even those unable to naturalize. The case had little repercussion in the press at the time and its details have probably eluded many Americans since. Kim Ark and his sons even continued to encounter a myriad of obstacles when traveling in and out of the United States in the ensuing years. But had it not been for Wong Kim Ark, University of New Hampshire historian Lucy Salyer told the Post in 2018, the United States would not be a nation of immigrants, but rather “colonies of foreigners.”

Most legal scholars consider the issue of birthright citizenship settled law. They agree that the key language of the Citizenship Clause—“subject to the jurisdiction”—carves out only two exceptions: the children of foreign diplomats and Native Americans under tribal rule. (In 1924, Congress extended citizenship to all Native Americans born in the country.)

But for years, immigration restrictionists have continued to advocate for amending or reinterpreting the 14th Amendment, charging that birthright citizenship serves as a “magnet” for unlawful immigration and so-called “birth tourism.” Specifically, they argue that children of undocumented immigrants are not “subject to the jurisdiction” of the United States because of their parents’ irregular status.

Trump attorney John Eastman has said, being born on US soil is not sufficient to confer automatic citizenship. That right should be contingent on “a total and exclusive allegiance” to the United States. In a 2018 Washington Post op-ed, former Trump national security official and Hillsdale College lecturer Michael Anton made the case that Congress could “clarify legislatively that the children of noncitizens” are not citizens under the 14th Amendment.

In the absence of congressional action, some on the right believe Trump should take matter into his own hands. “Judges faithful to their oaths will have no choice but to agree with him,” Anton wrote. “Birthright citizenship was a mistake whose time has gone.” For modern-day critics of birthright citizenship for the US-born children of undocumented immigrants, undermining or, at least, circumventing the well-established legal precedent in Wong Kim Ark could be the way to set things in motion.

Opponents like Anton and Eastman have argued that the justices’ ruling in Wong Kim Ark merely applied to the children of legal immigrants like Kim Ark’s parents and never directly addressed the question of those born to unauthorized noncitizens. Attacking the Wong Kim Ark decision as “erroneous and overly-broad,” Eastman has urged the courts to revisit or limit its interpretation.

Rogers M. Smith, a University of Pennsylvania political science professor and co-author of Citizenship Without Consent: Illegal Aliens in the American Polity, is part of a minority of constitutional scholars who share that perspective. “It makes no reference whatsoever for the status of unauthorized aliens, which is why I think it doesn’t address that topic,” he told me. “Lots of people think it does by implication, but that’s clearly an argument that could be challenged.”

How the justices would respond to it is anyone’s guess. During the confirmation hearing of Justice Samuel Alito in 2006, Sen. Chuck Schumer of New York asked the nominee if he agreed that “all persons mean all persons” according to the 14th Amendment and if a statute to deny citizenship to the US-born children of undocumented parents would be constitutional. Alito did not respond one way or the other, but nodded at “active legal disputes about the meaning of that provision.” If the question came before him as a sitting justice, he said on the occasion, it could “turn out to be a compelling argument or a frivolous argument or something in between.” More recently, Justice Amy Coney Barrett declined to opine on the matter.

Because Wong Kim Ark is overwhelmingly considered good law, the Trump administration could also try to work around it. Instead of arguing that the case should be overruled, they could refer to a specific line in the decision: the exemption of children “of enemies within and during a hostile occupation.” Per that reasoning, unauthorized immigrants could be declared perpetrators of an “invasion” of US territory and their children excluded from the birthright citizenship guarantee under the 14th Amendment.

“It’s kind of an ugly analogy,” Smith says, “but that doesn’t mean the Supreme Court won’t accept it.” He attributes the untested argument to a changed political context in which “conservative judges on the bench have opened the doors for right-wing constitutional arguments that were previously viewed as beyond the pale, as too extreme.”

And they might have already found an opening. Judge James C. Ho, who Trump appointed to the ultraconservative 5th Circuit and is thought to be a contender for a vacant seat in the Supreme Court, recently appeared to signal he would consider this theory against birthright citizenship—in what observers have flagged as a notable departure from his previously unflinching endorsement of the accepted understanding and a not-so-subtle effort to prove his loyalty to Trump.

“Birthright citizenship is guaranteed by the 14th Amendment,” Judge Ho wrote in 2006. “That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.” He added: “Text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most US-born children of aliens, including illegal aliens.”

But in an interview with conservative law professor Josh Blackman, Judge Ho suggested there is “a direct connection between birthright citizenship and invasion.” He was alluding to the idea that migrants coming to the United States constitute an “invasion,” a largely dismissed theory advanced by Gov. Greg Abbott of Texas and others to justify states taking extraordinary actions to crackdown on migration. “Birthright citizenship obviously doesn’t apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship,” Judge Ho said.

“Effectively, what he’s saying is that even though there’s a guarantee of birthright citizenship,” explains Evan Bernick, an assistant professor of law at Northern Illinois University and co-author of The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit, “the president can kind of turn it off by declaring an invasion and try to remove whoever he says is invading…It’s not even a loophole, it swallows the entire guarantee.” The fact that Trump referred to a foreign invasion in his campaign video, he adds, suggests they might be anticipating litigation and trying to “boost as much as possible their very minimal odds.”

In combination with a touted denaturalization program, it could be a “prelude” to mass deportation. “Even if this ultimately dies in the sense that a majority of the Supreme Court ultimately rejects it,” Bernick says, “it’s worth taking both literally and seriously. It’s not something that can be laughed off in the way that the proposition that a 33-year-old is eligible for the presidency can be laughed off. It’s real. It’s serious. These people believe it and they’re not just doing it because they think Trump wants it. There’s a real constitutional conviction on the part of the people who argue this.”