With the Supreme Court nearing the end of this term, it will soon release its ruling in Trump v. Barbara, the landmark case on the constitutionality of President Trump’s Jan. 20, 2025, executive order clarifying and protecting the meaning of American birthright citizenship. Expectation that the court will rule against the president has prompted a recent social media blast from Trump against the unreliable “conservative” justices on the court. Trump predicted that the court will be “ruling against us on Birthright Citizenship, making us the only Country in the World that practices this unsustainable, unsafe, and incredibly costly DISASTER. I don’t want loyalty, but I do want and expect it for our country … Sometimes decisions have to be allowed to use Good, Strong, Common Sense as a guide.”
President Trump is predictably insightful in his analysis of the politics of the court. Despite Chief Justice John Roberts’ desire to preserve the alleged impartiality and supra-political character of the court, it is impossible to deny that the courts have always been political actors in American government. As the president exhorted, the Supreme Court should make its decisions by “Good, Strong Common Sense” and with an underlying loyalty to the United States, which means loyal prioritization of our people, our founding principles, and our national preservation. Fortunately, the original meaning of the 14th Amendment supports President Trump’s position.
Specifically, while U.S. v. Wong Kim Ark (1898), which allegedly established the liberal interpretation of birthright citizenship, should ultimately be overturned, there remains a viable path where the court could uphold that ruling’s precedent and simultaneously recognize that the 14th Amendment does not grant citizenship to children of illegal aliens born within the territory of the U.S. This would be a major win and step toward securing and restoring our national sovereignty.
Ed Erler, one of the foremost scholars on the issue of birthright citizenship and the 14th Amendment, has treated this topic in great detail in his compelling book The United States in Crisis: Citizenship, Immigration, and the Nation-State. As Erler demonstrates, the original intention of the 14th Amendment, as expressed by its framers, was to grant American citizenship to former slaves and their children. The clause “subject to the jurisdiction thereof” excludes illegal aliens and foreign citizens, given that they are not fully subject to the jurisdiction of the American regime. They are subject to our laws while they sojourn here, but not subject as loyal citizens, since they owe allegiance to their foreign nations of origin.
Erler relies upon the political principles of the American founders to reject the British common law doctrine whereby anyone born within the territory of the British Empire was a perpetual subject of Britain. Erler further provides evidence from the ratification debates, the Civil Rights Act of 1866, the Expatriation Act of 1868, and Elk v. Wilkins (1884) to clarify the original meaning of birthright citizenship in the 14th Amendment.
Wong Kim Ark Case
Nevertheless, the big obstacle for modern reform of birthright citizenship is the precedent case U.S. v. Wong Kim Ark, which is the foundation of the left’s interpretation of birthright citizenship that prevails politically and academically today. The fundamental holding of Wong Kim Ark was that, due to a faulty interpretation of the 14th Amendment, Ark was born an American citizen due to his birth on American soil, despite the fact that his parents resided at the time of his birth in San Francisco as lawful permanent residents (i.e., domiciled workers) and were not American but Chinese citizens, owing allegiance to the Chinese emperor.
Erler believes the Wong Kim Ark decision was decided wrongly, echoing the contemporaneous view of Chief Justice Melville Weston Fuller and Justice John Marshall Harlan, who dissented in the 1898 decision. Consequently, the strongest pro-American position consistent with founding principles would be to overrule Wong Kim Ark (1898) entirely and to clarify a view of birthright citizenship that children born to American citizens are citizens by birthright (though possessing the natural right of expatriation), but noncitizens can become citizens only through naturalization, which must be in accord with laws passed by our legislature and embodying the will of existing citizens. Of course, as noted earlier, this is essentially a fantastical ideal, given the current landscape of the Supreme Court and what has been signaled in oral arguments.
Administration’s More Modest Proposal
Perhaps prudently, the Trump administration, guided by the tactful skill of its lawyers, has not chosen to argue the full-throated position, but instead a more modest proposal. In the brief, Trump’s Solicitor General John Sauer explained, “But Wong Kim Ark involved a child of aliens with lawful ‘permanent domicil and residence,’ id. at 652, not the children of illegal or temporarily present aliens … the government has not asked this Court to overrule Wong Kim Ark. But the government does not need to do so, since Wong Kim Ark does not address the question presented in these cases.” In short, by ruling in the president’s favor, the court could seek to preserve the appearance of their own legitimacy by upholding precedent (Wong Kim Ark), while also correcting the worst application of the liberal doctrine of birthright citizenship.
While it is bad enough children of lawfully domiciled foreign workers in the U.S. can become citizens by birth on U.S. soil, it is egregiously worse that we currently treat children of illegal aliens and foreign tourists as “birthright citizens” if they happen to be born on U.S. soil. The “middle path” decision suggested here, and which the Trump administration is requesting, would still preserve birthright citizenship for children of lawfully domiciled resident foreigners in the U.S., but would admit that children of illegal aliens or mere tourists are not “birthright citizens.” While conservatives ultimately want an even stronger definition of American citizenship, a Supreme Court decision in Trump’s favor would still be a massive improvement over current doctrine and practice.
Also, it’s important to note that the president’s order stated it “shall apply only to persons who are born within the United States after 30 days from the date of this order,” so it is not retroactive. To fix our grossly abused immigration system and citizenship practices will require far more than an executive order, but would require congressional legislation allied with support from the courts and the executive.
Restoring Sovereignty
President Trump’s attempt to clarify the meaning of birthright citizenship was a major, unprecedented step forward in restoring American citizenship and national sovereignty. The Supreme Court should not hinder his efforts by ruling in favor of the most liberal interpretation possible, but rather take at least the moderate middle path and admit that, even if Wong Kim Ark stands as precedent, we need not continue the irrational, destructive practice of granting birthright citizenship to illegal aliens and foreign tourists. An endorsement of the liberal position on birthright citizenship effectively promotes the destruction of national sovereignty.
A Supreme Court decision against Trump on this issue will be a major blow, and yet there are still many departmentalist methods of attack for the Trump administration to advance his position. Nevertheless, it would be immensely helpful for the court to uphold President Trump’s order on this issue, even if much work remains to be done to restore the founders’ understanding of American citizenship.
