President Donald Trump's executive order to abolish automatic citizenship for anyone born in the U.S. has led to several major lawsuits that rely on cases that established birthright citizenship in U.S. law.
Why It Matters
If Trump succeeds, it could lead to deportation for illegal immigrants and their children, even those born in the U.S.
Those who oppose Trump's plan are relying on past precedents that could unravel his groundbreaking plan to tighten immigration into the U.S.
Newsweek sought email comment from Immigration and Customs Enforcement on Tuesday.
What To Know
The three landmark cases on birthright citizenship in the U.S:
Dred Scott vs. Sandford
Possibly the most infamous case in Supreme Court history, Dred Scott established that slaves born in the U.S. were not citizens and could not rely on constitutional protections, even if they moved north with their owners.
Scott was born in Virginia and was later sold to an army surgeon who took his slaves with him to northern non-slave states when he received a military posting there.
Scott argued that he was not subject to slavery laws as he had moved out of slave state jurisdiction.
The Supreme Court voted 7-2 against him, finding that slaves could never be citizens, even if they were born in the U.S. and even if they were living in non-slave states.
After the civil war, Congress enacted the 14th amendment, which guaranteed citizenship to anyone born in the U.S. and who are "subject to the jurisdiction thereof," regardless of race, religion or social background.
United States vs. Wong Kim Ark
By far the most important case on immigration and birthright was Wong Kim Ark vs. the U.S.
Wong Kim Ark was born in San Francisco in 1873, but was denied reentry to the U.S. after a trip abroad under the Chinese Exclusion Act, which banned Chinese immigration.
He challenged it at a federal level and in 1898 the Supreme Court ruled that the 14th amendment guaranteed citizenship to all children born in the U.S.
Greg Germain, a law professor at Syracuse University in New York told Newsweek that Wong Kim Ark is "the only Supreme Court case to directly address the language in the 14th amendment."
He also noted that Wong's parents, who were Chinese citizens, had previously been granted permanent resident status and were not illegal immigrants.
"The Supreme Court held that Ark [Wong] was a citizen at birth, even though his parents were citizens of China," Germain said.
He noted that Justices Melville Fuller and John M.Harlan dissented because the parents were subject to the "political jurisdiction" of a foreign power because of their citizenship.
"Wong Kim Ark was a child of permanent residents, so the case doesn't directly address the issue raised by Trump's order," Germain added.
Plyler vs. Doe
In the 1982 decision in Plyler vs. Doe, the Supreme Court had to consider an expansive definition of the 14th amendment and the birthright rule.
The court struck down a Texas statute denying education for "illegal immigrants" and demanding an annual $1,000 tuition fee for any "illegal immigrant" who wished to be educated in Texas public schools.
In legal submissions, the plantiffs said that the subtext of the 14th amendment suggests that anyone in the U.S., regardless of whether they were born there, should be afforded its social protections.
The Supreme Court was very divided on the issue, but the majority ruled that any child present in the U.S. was entitled to an education, regardless of immigration status.
"Some people have cited Plyler vs. Doe to support birthright citizenship for illegal aliens, because it held that anyone present in the United States, including illegals, were entitled to equal protection to attend school, since they were subject to Federal and State Jurisdiction simply by being present in the jurisdiction," Germain told Newsweek.
However, he said the case did not consider what "subject to the jurisdiction thereof" meant in the 14th Amendment citizenship clause.
What People Are Saying
On February 5, Maryland Federal Judge Deborah Boardman issued a second nationwide halt to Trump's executive order and said that citizenship is a "most precious right." She said that no court in the country has supported Trump's interpretation of the constitution. "This court will not be the first," she said.
The plaintiffs in the lawsuit stated: "The principle of birthright citizenship is a foundation of our national democracy, is woven throughout the laws of our nation, and has shaped a shared sense of national belonging for generation after generation of citizens."
The U.S. government argued in response to the plaintiffs: "The Constitution does not harbor a windfall clause granting American citizenship to, inter alia: the children of those who have circumvented (or outright defied) federal immigration laws."
What Happens Next
Trump's executive order has been blocked by at least three federal judges throughout the U.S. In those cases, at least 22 states, as well as other organizations, are suing to stop his executive order.
The Trump administration will likely appeal the judicial prohibitions and, given the extent of disagreement between the White House and many Democratic-leaning states, the issue will likely be heard by the Supreme Court.
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About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more