"Presidents Can't End Birthright Citizenship."

 From the Brennan Center's Thomas Wolf:

Turning to the history and text of the 14th Amendment: Before that amendment was ratified, America had a racialized class system in which enslaved people were denied the most basic rights granted by our founding documents. The Supreme Court blessed this system with its infamous Dred Scott decision, which ruled that enslaved people and their children could never be citizens. The Civil War was waged to put an end to this state of affairs. And, as a condition of their readmission to the Union, former slaveholding states were required to accept the principles reflected in the 14th Amendment. Among them, a plain statement of who is a citizen: “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.” In other words, if you’re born here, you’re one of us. It doesn’t matter who your parents were, whether they were free or enslaved, American citizens or not: You’re one of us. There is no other way to understand those words.

The Supreme Court affirmed this interpretation nearly 130 years ago in an 1898 case called United States v. Wong Kim Ark. The plaintiff in that case, Wong Kim Ark, was born in San Francisco in 1873. As an adult, he left the country to visit his Chinese-citizen parents in their homeland. He was, however, denied reentry to the United States by government officials who disputed his status as a U.S. citizen. Citing principles that stretched back through 17th-century English law and the clear language of the 14th Amendment, the Supreme Court recognized that birthright citizenship is “ancient and fundamental.” The Court has continued to endorse this understanding since, including in 1982’s Plyler v. Doe, which affirmed that undocumented immigrants and their children are entitled to all the 14th Amendment’s protections.

Trump’s order contends — as opponents of birthright citizenship long have — that the children of undocumented immigrants can’t be citizens, because they allegedly aren’t “subject to the jurisdiction” of the United States. That’s nonsense. Undocumented immigrants and their children are required to follow the same laws as everyone else on U.S. soil, including paying taxes. (As distinct from the primary example of people not subject to the federal government’s jurisdiction: foreign diplomats.)

It’s reasonable to wonder whether the current Supreme Court will defy Trump on an issue about which he has campaigned so aggressively. It’s undoubtedly true that the justices have bent American jurisprudence into novel shapes to avoid direct conflict with Trump. But backing birthright citizenship doesn’t require some unprecedented feat of progressive jurisprudence. Just look at the Fuller Court, which decided Wong Kim Ark. Two years earlier, it issued Plessy v. Ferguson, one of the most notoriously racist rulings in U.S. history. Even those justices — who embraced the two-tiered “separate but equal” regime of race relations that ruled the United States for generations — couldn’t find an honest way around the 14th Amendment’s plain language. This precedent will loom — rightly and heavily — over any move the Court makes.


Wolf was interviewed by Black Agenda Report about the issue as well.

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