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I don’t often play the lawyer in my blog. The blog is about faith and a journey toward truth. Despite my own inclinations to avoid politics, I find myself sucked into what is going on because of the unprecedented nature of the changes that have occurred so quickly since Donald Trump took office. As a result, I am reading more articles on the daily political drama that is currently unfolding than I normally would.

In some ways, Donald Trump is simply expanding executive authority as previous presidents have done (especially recent ones), though he is expanding it further and faster than it was done before. The expansion of executive authority is nothing new, but he is pushing the envelope more quicky and more expansively than ever before.

In other ways, Trump is going where no previous presidents have dared to go. He is blurring the lines of his executive authority and constitutional constraints in ways and with a boldness we have not previosuly witnessed.

The Executive Branch of government has no constitutional authority to make law. A president only has power to carry out the law established by Congress (with certain defined exceptions). Executive actions that go beyond or are contrary to the laws established by Congress and the few constitutional grants of power can be questioned in the courts.

Donald Trump’s order to end birthright citizenship is an example of his executive actions over the last two months. The Supreme Court recently agreed to take up the cases filed in several states in which injunctions were issued against that birthright order. I get weary of the moral and political fray, so I am going to take a step back today and do a little analysis of the mechanics of what is going on.

Birthright citizenship is in the US Constitution. It wasn’t always there. It was introduced in the 14^th Amendment that was ratified after the Civil War, and it provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof” are citizens.

I should point out that the 14^th Amendment was a dramatic change to the laws of our country. It changed the very foundation of our law – the Constitution. It was done through the mechanisms embedded in the Constitution, though. It wasn’t a maverick move by one man in power; it was done by the constitutional amendment process that requires passage by two-thirds of both houses or a constitutional convention called by two-thirds of the states, and it must be ratified (approved) by three-fourths of the state legislatures.

This is an onerous process, but it is meant to be difficult. The fear of the founders of our country was that one small segment of power or one man could change everything – as in the European monarchies from which the settlers of our country came. They built into the fabric of our governing structure a separation of powers, a federal government and many state governments, and processes that create a system of checks and balances – like the process to amend our Constitution. These things were done to mitigate against the fear of sudden change that might destabilize the democratic republic.

The 14th Amendment was passed in 1868. It took about three years after the end of the Civil War to get it passed, and that was moving through the process quickly. The bedrock of the 14th Amendment is at issue in the cases that are currently being taken up, now, by the US Supreme Court. The opening lines are as follows:

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Citizenship to all people born in the United Stated is the foundation of the 14th Amendment. From this foundation, the Amendment grants due process and equal protection, which are arguably the most significant protections that Americans enjoy.

The application and scope of the 14th Amendment was challenged 30 years later in a case that made its way up to the US Supreme Court from the 9^th Circuit in California. (See United States v. Wong Kim Ark, 169 U.S. 649 (1898)) At issue was a 21-year-old Chinese man who was born to Chinese citizens who lived in San Francisco when he was born in 1873.

The Chinese Exclusion Acts passed in 1882, prohibiting Chinese laborers from entering the US, making Chinese immigrants ineligible for citizenship. It also required Chinese people who left the country to obtain citizenship before re-entering the country.

Wong Kim Ark parents returned to China with him in 1890 when he was 17. He retuned briefly in 1894, and returned to the US again – the country of his birth – in 1895. Upon returning a second time, he was detained under The Chinese Exclusion Acts. The prosecutors in this case argued as follows:  

“Wong Kim Ark has been at all times, by reason of his race, language, color and dress, a Chinese person, and now is, and for some time past has been, a laborer by occupation.

“Wong Kim Ark is not entitled to land in the United States, or to be or remain therein, because he does not belong to any of the privileged classes enumerated in any of the acts of Congress, known as the Chinese Exclusion Acts, which would exempt him from the class or classes which are especially excluded from the United States by the provisions of the said acts.”

(As an aside, this language would never fly today. It is racially charged language and discriminates against people solely based on race, ethnicity, and national origin. The law itself targeted one nationality, ethnicity, and race of people. Immigration laws would continue to target people by nationality, ethnicity, and race until the early 1960’s. The wheels of justice, indeed, turn slowly, but we are better than that now, right?)

The issue in the Wong Kim Ark case focused on the 14th Amendment. The prosecutors focused on the qualifying statement in italics: “persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.” They argued that Wong Kim Ark was never “under the laws of the United States”, because his parents were “Chinese persons and subjects of the Emperor of China”, and Wong Kim Ark was “also a Chinese person and a subject of the Emperor of China.”

In effect, they argued that Wong Kim Ark was not subject to the jurisdiction of the United States because his parents were subjects (citizens) of China. One might ask why they detained him if he wasn’t subject to the jurisdiction of the US, but I digress.

After tracing the history of English common law, Napoleonic law, and even Roman law on citizenship, the Court focused on what Congress intended by the 14th Amendment in light of the Civil Rights Act that they passed in 1866, just two years earlier. The Civil Rights Act made persons citizens who are “born in the United States, and not subject to any foreign power.” (Subject to foreign power meant a a diplomat or person in similarly representing a foreign power.)

The 14th Amendment was intended to embed civil rights protections, including citizenship, in the US Constitution so it could not be undone easily by a future Congress or any state legislature. “Its main purpose doubtless was … to establish the citizenship of free negroes” that was denied in the Dred Scott case. (US v. Wong Kim Ark at 676) Thus, the “all persons” language signaled that citizenship is based on “place and jurisdiction and not by color or race.” (Ibid.)

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In reviewing the history of legislation on citizenship, the Wong Kim Ark court concluded, “[T]he fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well considered opinions of the executive departments of the Government since the adoption of the Fourteenth Amendment of the Constitution.” (Id. at 688) With that, the further Court concluded:

“To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries 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.”

Birthright citizenship has long been the law of this land (since 1868). It doesn’t matter whether the parents are citizens; a child born physically in the United States is a citizen according to the 14th Amendment as affirmed by the US Supreme Court. With that little history, I want to get to my point.

The article, Trump’s Birthright Citizenship Order Reaches the Supreme Court, written by Abbie VanSickle in the NY Times, notes that the same qualifying language, “subject to the jurisdiction of the United States” at issue in the Wong Kim Ark case is also the focus of the birthright citizenship case currently before US Supreme Court. Longstanding precedent is not immune from challenge. Roe v. Wade became the law of the land in 1973, and it was directly overturned in 2022 by Dobbs v. Jackson Women’s Health Organization.  

I imagine that the Wong Kim Ark case could be distinguishable on the fact that Wong Kim Ark’s parents were not in San Francisco illegally when he was born, while Donald Trump seems to be focused on the children of illegal aliens. By my reading of the reasoning in the Wong Kim Ark case and the authority it cites, that difference should not be a distinction that makes a difference, but we will have see how these cases play out. In the meantime, I want to comment on the current state of affairs from a different angle.

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