Will the High Court Bollix Birthright Citizenship?

The tenor of the arguments today at the Supreme Court in the case of Trump v. Barbara suggests that the Nine could be on the verge of a missed opportunity to clarify for the 21st century the question of birthright citizenship. The need for updated rules on this head was underscored today by the solicitor general, John Sauer. “We’re in a new world now,” he averred, “where 8 billion people are one plane ride away from having a child who’s a U.S. citizen.”General Sauer was referring to the rising concerns over so-called birth tourism. That amounts to an abuse of the American tradition of granting citizenship almost automatically to children born here, even if their parents are here illegally or temporarily. This policy is based on the Citizenship Clause of the 14th Amendment, ratified in 1868. It ordains that children born in America, “and subject to the jurisdiction thereof, are citizens of the United States.”General Sauer stressed that the meaning of the term “jurisdiction” encompasses “direct and immediate allegiance” to America. As a result, he said, the Citizenship Clause “does not extend citizenship to the children of temporary visa holders or illegal aliens.” That marked a contrast with the intention of the 14th Amendment’s authors, who, General Sauer said, drafted the provision to ensure that recently freed slaves obtained citizenship after the Civil War. “Unlike the newly freed slaves,” General Sauer added, illegal immigrants and temporary “visitors lack direct and immediate allegiance to the United States.” That, under General Sauer’s reading of the amendment, bars their children from receiving citizenship automatically. After the hearing, President Trump reiterated that point by noting that “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!” These columns have argued, in line with Mr. Trump’s position, that “the realities of immigration in the 21st century” could well “help bolster the case” for revisiting the Supreme Court’s past precedent on the birthright citizenship question in United States v. Wong Kim Ark. That ruling, which backed the citizenship rights of the children of Chinese subjects, was handed down in 1898, when steamships and railroads were the fastest modes of travel.Yet Justice Samuel Alito raised doubts as to whether Wong can justify the claims of birthright citizenship backers. The ruling, he noted, stressed that the child’s parents “at the time of his birth” were “subjects of the Emperor of China but have a permanent domicile and residence in the United States and are there carrying on business.” This suggested a “distinction,” he said, between long-term residents and short-term visitors in terms of citizenship.The difference between “those two categories of people,” he reckoned, “would have been well understood at the time when Wong Kim Ark was decided.” Yet several of the justices marked how Wong had vindicated a long common-law tradition of associating citizenship with the place of one’s birth. Exceptions were customarily understood to exist for the children of, say, ambassadors of foreign nations. Mightn’t an exception be warranted in cases of, say, those who abuse the law via birth tourism, by which GOP lawmakers aver up to 1.5 million Communist Chinese have obtained American citizenship? Our hope has been that the Court could resolve this in favor of Mr. Trump. By our lights, Chief Justice Roberts’ formulation that “it’s a new world” but “the same Constitution” helps Mr. Trump more than it helps his legal opponents.

Will the High Court Bollix Birthright Citizenship?

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