By Carolyn Bick
NORTHWEST ASIAN WEEKLY
This year marks the 128th year of the United States v. Wong Kim Ark, the landmark Supreme Court decision that established birthright citizenship, protected in the then-recently ratified 14th Amendment of the Constitution. Since the court’s decision in 1898, all children born to immigrants—regardless of citizenship or documentation status—have automatically been granted American citizenship.
But the federal government is arguing otherwise, in the closely watched Supreme Court case, Trump v. Barbara, which could have severe ramifications for undocumented immigrants, visa holders, and their children. Upwards of 250,000 children in the U.S. are born to undocumented immigrants.
The case is a class action lawsuit a group of immigrants have brought forward against President Donald Trump, after he signed Executive Order 14160 last year. The order narrowly restricts birthright citizenship only to the children of documented immigrants. Trump is arguing that, when ratified in 1868, the 14th Amendment was meant to apply only to the children of slaves, and that undocumented immigrants do not fulfill the 14th Amendment’s language that states a person is a citizen by birth, if, in addition to being born in the U.S., they are also “subject to the jurisdiction thereof.”
History of anti-Chinese sentiment
The Justices in the 1898 case specifically argued that Wong Kim Ark, who was born to Chinese immigrant parents in the United States, should not be granted citizenship, because Chinese citizens are subject to the political will of China, not the United States, and therefore exempt from U.S. jurisdiction. The argument that Chinese people living in the U.S. are loyal to China, not to the U.S., has persistently plagued the Chinese and Chinese American community.
The dissenting Justices also disagreed, because the United States had enacted the Chinese Exclusion Act, just 16 years earlier, in 1882.
“The Chinese, under their form of government, the treaties and statutes, cannot become citizens nor acquire a permanent home here, no matter what the length of their stay may be,” wrote dissenting Justice Melville Fuller, referring in part to the Chinese Exclusion Act.
“There was very strong anti-immigration sentiment, specifically towards the Chinese migrant community,” attorney Wendy Feng said, briefly covering the history of birthright citizenship in a Committee of 100 webinar on March 17. Panelists at the webinar discussed what Trump v. Barbara could mean for children born to undocumented immigrants or green card holders.
Feng herself is a green card holder. She said that the current case regarding birthright citizenship deeply affects her, because she is a first-generation immigrant. She explained that at the time of Wong Kim Ark’s case, many Chinese migrants had moved to the U.S. to work, and though they formed little communities of their own, Americans still subjected them to widespread racism and violence, including forcing Chinese from their homes, riots, looting, and murder.
Feng works for Seyfarth Shaw, LLP, and represents the Asian Pacific Bar Association, which has filed an amicus curiae brief—an informational legal document of support—on behalf of the group of immigrants in the Trump v. Barbara lawsuit. Several others have joined the association, with a total of 43 briefs filed on behalf of the group of immigrants, and just 19 filed on behalf of Trump.
“Our brief talks about this historical context, and what we argue is that at this time when anti-Chinese sentiment was so strong in the U.S., this notion that Wong Kim Ark’s parents were the equivalent of today’s green card holders is just not a good analogy,” Feng explained. “They did not have any of the same rights, any of the same protections, or any of the same sense of belonging, legally or socially, that today’s legal permanent residents have.”
“And so,” she continued, “what we argue is that to the contrary. What Wong Kim Ark actually affirmed is this fundamental principle that the right to citizenship enshrined in the 14th Amendment cannot be revoked on a whim, and that regardless of the popularity of anti-immigrant sentiment or the leanings of a particular presidential administration at any particular point in history, you cannot just revoke the right to citizenship.”
She also highlighted that Wong Kim Ark’s case testifies to the strength of the 14th Amendment’s protections. Despite extremely strong anti-Chinese sentiment, the Supreme Court ultimately upheld the rights of the children of Chinese immigrants.
Three possible outcomes
Arjun Shenoy—the O’Melveny & Myers, LLP, attorney who is representing the Fred T. Korematsu Center, which also filed an amicus curiae brief on behalf of the group of immigrants challenging Trump—said that he predicts three possible outcomes: two of which are straightforward and one of which is mixed.
The first is that the Supreme Court could entirely strike down the order, arguing for the 1898 decision’s interpretation of the 14th Amendment’s text, and long-standing understanding of that decision protecting birthright citizenship. In that case, he said, the court could say that the president can only rescind birthright citizenship through a constitutional amendment.
The second is that the court could uphold the order, accepting the government’s argument that the executive order is consistent with the original meaning of the 14th Amendment’s words, “subject to the jurisdiction thereof.”
“A ruling like that I think would mark a major shift in the constitutional doctrine and would permit the federal government to deny citizenship documents to at least those categories that are identified in the executive order,” Shenoy said. “And they could push the envelope further, but at the very least, it would cover those categories.”
The third possible outcome is that the court could make a narrow or mixed ruling that still damages birthright citizenship.
Trump’s executive order covers two categories of children born to non-citizen immigrants. One is where the child’s mother is undocumented, and their father is neither a U.S. citizen nor a lawful permanent resident. The other is where the mother is documented, but only on a temporary basis, and their father is neither a U.S. citizen nor a lawful permanent resident.
“You could see, potentially, a situation where the Supreme Court says, ‘Based on our historical understanding of what [the 14th Amendment] was trying to do, there would be no birthright citizenship for children who fall in the first category, but there could be birthright citizenship or there is birthright citizenship for individuals who fall in the second category,’” Shenoy said. “So that would be an example of a mixed ruling where the government gets some of what they want but not all of what they want.”
So what happens if Trump prevails?
Attorney Jennifer Wu said that, based on Trump’s Truth Social posts, it appears he believes the second category—children born to mothers holding temporary residency documents—won’t go his way. But the first one might.
“He doesn’t think the Supreme Court would go that far. But he’s probably leaving open the idea that the Supreme Court would eliminate birthright citizenship for undocumented people. And so if both parents are undocumented, the kids are similarly stateless,” Wu said. “The downstream consequences are really tragic for the kids. And it is a national moment, where when there is pressure on a nation—whether it’s economic, whether it’s because of a pandemic, when there’s pressure on a country—the first thing people do is push away the people they think shouldn’t be here. And that applies both if you’re Asian American and not Asian American. … I think that that first category is narrower, at least in people’s minds, and might be narrower in the Supreme Court, and is what people think is most at risk.”
Shenoy explained that the goal of the Korematsu Center’s brief is to show the concrete, real-world impacts of what would happen to families, if the Supreme Court decides in favor of Trump.
“The way we tried to do that was to use present-day interviews that were taken by [the Asian American Legal Defense and Education Fund,] to show how citizenship shapes life’s chances in very concrete ways, using examples of Asian American mixed-status families,” Shenoy said. “These are families where you might have one child who is undocumented, and another child who is a citizen and gets to benefit from the fact that they are citizens. So we use case studies, so to speak, to explain how there’s a big difference in a child’s ability to access proper education, to be able to work legally, travel, vote, make long-term plans without fear. These are real practical consequences to having citizenship.”
Additionally, he said, the Korematsu Center’s brief focuses on the fact that if the Supreme Court sided with Trump, the effects of rescinding birthright citizenship wouldn’t just stop at the federal level, and may not just apply to people born after Trump issued the order.
“States and localities, for example, might start questioning people’s citizenship in a way that affects their ability to vote or their ability to serve on a jury. It’s in the Constitution itself that states have a lot of latitude to determine voter eligibility requirements, particularly for state and local elections,” Shenoy said. “If there were a decision that limited the scope of birthright citizenship, states and localities might be able to use that decision as a basis to say certain individuals who otherwise would qualify for jury service, for example, no longer qualify because they are not citizens in the way that they otherwise would have been prior to the Supreme Court’s decision.”
The bottom line, he said, is that “weakening birthright citizenship wouldn’t just be some sort of narrow doctrinal change. I think it would risk reviving old patterns of exclusion and destabilizing the lives of people who otherwise always understood themselves to be Americans.”
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