Birthright Citizenship
I’ve studied the birthright citizenship issue recently in light of the "Protecting the Meaning and Value of American Citizenship" Executive Order, so I wanted to share some thoughts here. Views are my own!
First, birthright citizenship was established in the Fourteenth Amendment, with only one clarifying clause - “subject to the jurisdiction thereof." The federal government argued in an 1898 case that birthright citizenship did not apply to Wong Kim Ark, the son of Chinese immigrants, because his parents still were subjects of the Chinese emperor - the Supreme Court rejected this, finding that Wong Kim Ark was a citizen even though U.S. law at the time did not allow Asian immigrants to become citizens.
Second, the Wong Kim Ark case did not specifically address a person who was born to parents who were illegally present in the U.S. Accordingly, if the majority opinion was the only word or the last word on the subject, the Trump administration would have a colorable argument that the case was limited and does not reach illegal immigrants.
But, third, the majority opinion was NOT the only word. The dissent raised an argument much like the federal government’s current argument – that “subject to the jurisdiction thereof” requires a renouncing of allegiance to an immigrant’s former country. But that argument lost.
And, fourth, the majority opinion was NOT the last word. The Supreme Court has recognized in multiple cases the citizenship of people who were born in the U.S. to parents who were illegally here. See:
US ex rel Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957) (recognizing that the child of two people who illegally overstayed their entry into the U.S. “is, of course, an American citizen by birth”)
INS v. Errico, 385 U.S. 214 (1966) (an illegitimate child born to an immigrant who committed marriage fraud “became an American citizen at birth”)
INS v. Rios-Pineda, 471 U.S. 444 (1985) (recognizing that the child of two illegal immigrants was a US citizen “being born in the United States”).
Fifth, the federal government’s recent notice of appeal to the Supreme Court does not mention those cases.
Sixth, the federal government’s legal argument goes much farther than the Executive Order does. For example, if credited, it would put a cloud over the citizenship of the children of lawful permanent residents who still owed allegiance to another country. Like me. I was born in the United States to two LPRs who had not renounced their allegiance to South Korea but did so a few years later - the EO does not specifically apply to me, but the Trump administration’s argument would mean that my citizenship is up for grabs.
I have believed that I was a U.S. citizen my entire life, including the 11 years that I served as an Assistant U.S. Attorney. But if the federal government now thinks I'm not, please let me know! My parents believed that I was an American and that I did not need to know Korean, but maybe I should start learning just in case.
