The U.S. Supreme Court revisited President Donald Trump’s executive order on birthright citizenship. Trump signed and issued an executive order on Jan. 20 called “Protecting the Meaning and Value of American Citizenship.” The order prohibited federal agencies from issuing or accepting citizenship documents for children of asylum seekers born 30 days after the order’s effective date.
The 14th Amendment, which grants equal protection and due process, resulted from the Dred Scott v. Sanford case. Trump argued that this case was misinterpreted, stating that the amendment’s sole purpose was to grant citizenship to the once enslaved African Americans and that it does not protect the children of immigrants.
“The 14th Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof,’” the executive order read.
San Antonio Attorney and member of the District of Columbia Bar Association Joe Cohen provided clarification about birthright citizenship and considered who the revision could affect.
“The immediate effect is, what happens to all the people who have been granted citizenship in the areas in which the executive order would say you’re not a citizen,” Cohen said.
The federal government is clear that the executive order would apply prospectively and would not affect the citizenship status of a person who previously qualified for birthright citizenship.
“About 250,000 people born in the United States are citizens, currently, who would not be citizens if the executive order was in place,” Cohen added.
The executive order aims to address alleged misinterpretations of the 14th Amendment. The court documents state the misunderstandings as automatic citizenship, unqualified birthright citizenship, near-automatic citizenship and birthright citizenship, claiming disregard for the meaning and value of American citizenship.
Within hours of the executive order being signed, groups of affected individuals, along with their parents, filed a class-action lawsuit against Trump.
When a lawyer for Trump suggested that the 14th Amendment needs modernization, George W. Bush appointee Chief Justice John G. Roberts Jr. stated, “It’s a new world. It’s the same Constitution.”
A key component of the U.S. government’s oral argument was the meaning of “domicile,” a term used by Solicitor General John Sauer and acknowledged by justices on the bench.
“Domicile is where a person intends to make their home,” Cohen defined. “Certainly, if you’re domiciled somewhere, you’re also a resident. But if you’re a resident somewhere, it doesn’t necessarily mean you’re domiciled there.”
United States v. Wong Kim Ark was used to define the term domicile. In 1895, the collector of customs at the port of San Francisco denied Wong Kim Ark re-entry into the U.S., stating that he was not a citizen despite being born in San Francisco’s Chinatown. The Supreme Court affirmed his constitutional guarantee of automatic birthright citizenship.
The Trump administration argues that Ark’s parents, while not citizens, were domiciled in the U.S., and that because of this domicile, Ark is different from other children of asylum seekers.
“Much of what the argument centered on was that phrase, ‘persons who were born and subject to the jurisdiction of the United States,’ and the administration wants to portray that phrase to mean domicile or allegiance,” Cohen clarified. “Whereas the other side, who wants to stop the executive order, their meaning of that term ‘jurisdiction’ means subject to the authority of the United States, doesn’t have anything to do with domicile or allegiance.”
The U.S. Supreme Court is expected to decide the birthright citizenship case in late summer.
