Birthright Citizenship

In the News: The Supreme Court hears arguments on the president's executive order ending birthright citizenship.

Historical Context:

Birthright citizenship is the legal right to national citizenship for all persons born in the United States, regardless of their parents’ citizenship status. Adopted in 1868, the 14th Amendment of the U.S. Constitution says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

The concept was defined first in the Civil Rights Act of 1866, which was passed after the Civil War to ensure the rights of Black Americans who formerly were enslaved. The law was passed by Congress, vetoed by President Andrew Johnson, then affirmed when Congress overrode Johnson’s veto, a rare feat that made clear Congress’ intent. Knowing it is much harder to change the Constitution than a law, Congress initiated the amendment process to enshrine in the Constitution key elements of the Civil Rights Act.

Birthright citizenship was challenged in the Supreme Court case United States vs. Wong Kim Ark in 1898. Born in San Francisco, Ark traveled to China then returned to California, only to be denied entry under the Chinese Exclusion Act. The court confirmed that Ark was a U.S. citizen even though his parents were immigrants, upholding the principle of birthright citizenship.

Because Native American tribes were viewed as independent nations within the confines of the U.S., birthright citizenship was not conferred to them until the 1924 Indian Citizenship Act granted it to all Native Americans born in the U.S.

In January, the President issued an executive order denying birthright citizenship to children born of undocumented immigrants or whose parents are in the country on temporary status. Federal courts blocked the order immediately, and it now is working its way through the judicial appeals process.

While the case before the Supreme Court last week does center on birthright citizenship, that principle was not the court’s focus. Instead, the court is considering whether lower-court judges can issue what are known as universal injunctions to block an order nationwide.

Sources: UC Davis College of Letters and Science, SCOTUSblog, American Immigration Council, Reuters, me.