Future of Birthright Citizenship: SCOTUS Preview

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On May 15, the Supreme Court will hear oral arguments in a case challenging the constitutionality of an executive order from President Donald Trump, which seeks to end birthright citizenship for the children of undocumented immigrants. While this case raises big constitutional questions about the scope of the 14th Amendment’s citizenship clause, the Court will likely focus on a narrower procedural issue: whether lower courts can block a policy nationwide.

Media Asset

In the videos below, Gabriel Chin of the University of California, Davis School of Law; Amanda Frost of the University of Virginia School of Law; Kurt Lash of the University of Richmond School of Law; and Ilan Wurman of the University of Minnesota Law School, draw on the Constitution’s text and history, as well as Supreme Court precedent, to present their constitutional argument in response to this question: Does President Trump’s executive order violate the citizenship clause of the 14th Amendment?

Amanda Frost argues that the 14th Amendment was designed to overturn Dred Scott v. Sandford (1857) and establish that citizenship is based on birthplace, not on race or ancestry. She emphasizes that the Supreme Court interpreted the phrase “subject to the jurisdiction thereof” in the landmark case of United States v. Wong Kim Ark (1898) to exclude a narrow set of exceptions from birthright citizenship, including the children of foreign diplomats, enemy occupiers, and, at the time, Native tribes. According to Frost, everyone else then, regardless of their parents’ immigration status, falls under the rule of birthright citizenship. In this sense, Frost argues that Wong Kim Ark—a doctrinal argument based on a previous Supreme Court decision and over a century of legal precedent—reinforces the 14th Amendment’s text and history.

Ilan Wurman argues that the 14th Amendment’s Citizenship Clause does not grant automatic birthright citizenship to everyone born on U.S. soil. In his argument, he focuses on the text of the Citizenship Clause—especially the phrase “subject to the jurisdiction.” He interprets this phrase as requiring more than just physical presence in the United States. According to Wurman, this phrase requires someone to be subject to “complete municipal jurisdiction” of the United States, a status that involves both receiving protection from and owing allegiance to the United States. When it comes to the children of undocumented immigrants, Wurman concludes that these children are generally not entitled to birthright citizenship because they are likely not born under the “complete municipal jurisdiction” of the United States and therefore do not have the status of receiving protection or owing allegiance to the nation.

Gabriel Chin connects the story of the Amistad to the 14th Amendment, showing how questions about the status of undocumented people—especially those trafficked into slavery—were on the minds of the 14th Amendment’s framers. For Chin, this historical evidence points to how the children of enslaved people were recognized as citizens. Chin argues that this historical evidence reinforces the constitutional conclusion that the best reading of the Citizenship Clause is that children of undocumented immigrants are “subject to the jurisdiction” of the United States and therefore entitled to birthright citizenship. He uses this historical evidence to challenges the claim that the 14th Amendment’s framers could not have anticipated illegal immigration, and he argues that unauthorized migration, such as migration through the illegal slave trade, was a known issue long before the 14th Amendment was drafted. This, he argues, undermines the claim that the Citizenship Clause may not apply to the children of undocumented immigrants.

Kurt Lash examines the text of Section 1 of the 14th Amendment and argues that the 14th Amendment supports a prima facie (“on the face of it”) claim to birthright citizenship, meaning that anyone born on U.S. soil is presumed a citizen unless there is strong evidence to the contrary. In Lash’s view, this burden of proof falls on the government to show that a case meets this threshold for exclusion, and this standard is intentionally high. While Lash recognizes the historical evidence is not clear-cut, he concludes that there is some originalist evidence that it is possible that some children of undocumented immigrants might fall outside the scope of the Citizenship Clause’s principle of birthright citizenship.

Discussion Questions for Students

1. What are the constitutional foundations for birthright citizenship? Where is this principle set out in the Constitution and what does the Constitution say in relation to it?
2. In your own words, briefly describe the arguments made by legal scholars Gabriel Chin, Amanda Frost, Kurt Lash, and Ilan Wurman. It may be helpful to create a chart or bulleted list to show which arguments are unique to each scholar and where some of their arguments overlap.
3. What evidence—whether based on the Constitution’s text and history and/or previous legal precedent—does each featured scholar cite to support their arguments? How might this evidence shape the Supreme Court’s interpretation of the Citizenship Clause?
4. How does addressing the arguments on all sides of this case help inform your understanding of the decision to be made by the Supreme Court?
5. How might the final decision in this legal challenge shape the application of the Citizenship Clause and the principle of birthright citizenship in future cases? Consider the potential outcomes based on the arguments laid out by the featured scholars.

Select an Optional Student Activity for Deeper Exploration

1. You be the judge! Using the arguments of legal scholars Gabriel Chin, Amanda Frost, Kurt Lash, and Ilan Wurman, and your understanding of the scholars’ arguments based on text, history, and doctrine, write a short opinion brief laying out your decision to the following constitutional question: Does President Trump’s executive order violate the citizenship clause of the 14th Amendment?
2. Create an interactive timeline of the history of the Citizenship Clause of the 14th Amendment. Consider including Supreme Court cases, such as United States v. Wong Kim Ark (1898) and link to primary sources and videos that help tell the story of this history from the ratification of the 14th Amendment in 1868 to today. Need help finding primary sources? Start here with NCC’s Founders’ Library.
3. Create a poster that outlines the argument of each scholar. Be sure to highlight their main argument and visually acknowledge where their arguments might overlap with one another. This could look like a Venn Diagram, a mind map, or any other visual chart of your choosing.
4. Select one of the scholars’ arguments and rewrite it as a poem. This can be told in any style of poetry you’d like. Consider including: the scholar’s name, the constitutional issue, and main points from their argument.

Dig Deeper on This Content With Additional Resources

Historical Foundations through Primary Sources
Looking for primary sources related to birthright citizenship? Consider checking out:

1. 14th Amendment of the U.S. Constitution
2. Interpretations of the Citizenship Clause
3. Petition to California Governor John Bigler (1852)
4. George Frisbie Hoar, “Remarks on Chinese Immigration” (1882)
5. Patrick Buchanan, “West’s Doors Closing” (June 7, 1993)

Develop Constitutional Thinking Skills with Current Events

1. What is the national government’s role in immigration? (Khan Academy Constitution 101 student course video)
2. The Future of Birthright Citizenship (We the People podcast)
3. What are the constitutional rights of green card holders? (Constitution Daily blog)