Legal precedent, congressional intent, and historical context show why this move is unconstitutional
The big picture
President Donald Trump signed an executive order attempting to end birthright citizenship, claiming that the Fourteenth Amendment’s Citizenship Clause has never been interpreted to confer citizenship on children of non-citizens. This claim contradicts the historical debates in Congress, which explicitly affirmed birthright citizenship, and Supreme Court precedent that has upheld this constitutional right for over a century.
The order faces immediate legal challenges, with over 20 states already filing lawsuits. Federal courts are expected to weigh in, but the Supreme Court will likely have the final say.
Zooming in
What does the Fourteenth Amendment say?
The Citizenship Clause of the Fourteenth Amendment states:
“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 plain text of this clause appears unambiguous, yet Trump’s executive order argues that it does not apply to children born to undocumented immigrants or non-citizen parents. However, historical records from Congressional debates in 1866 confirm that lawmakers intended for birthright citizenship to apply to all individuals born in the U.S., except for children of foreign diplomats and enemy occupiers.
Congressional intent behind birthright citizenship
After the Civil War, Congress passed the Civil Rights Act of 1866, which declared:
“All persons born in the United States and not subject to any foreign power… are hereby declared to be citizens of the United States.”
This law was later reinforced by the Fourteenth Amendment to ensure citizenship could not be repealed by future legislative action. During debates, Senator Jacob Howard, who introduced the Citizenship Clause, explicitly affirmed that the amendment would grant citizenship to children of all immigrants, except those born to diplomats.
Opponents of the amendment, such as Senator Edgar Cowan, raised concerns about extending citizenship to Chinese and Romani immigrants, proving that Congress considered and rejected the idea of limiting birthright citizenship based on race or legal status.
The Supreme Court’s ruling in United States v. Wong Kim Ark (1898)
Trump’s executive order ignores a key Supreme Court decision—United States v. Wong Kim Ark (1898)—which affirmed birthright citizenship. Wong Kim Ark was born in San Francisco to Chinese parents who were not U.S. citizens. When he returned to the U.S. after visiting China, he was denied entry, leading to a landmark case before the Supreme Court.
The Court ruled in Wong’s favor, holding that the Fourteenth Amendment guaranteed citizenship to anyone born in the U.S., regardless of their parents’ nationality or immigration status. The ruling relied on English common law principles of jus soli (“right of soil”), which formed the legal foundation for American citizenship.
In its decision, the Supreme Court stated:
“The fundamental principle of the common law with regard to nationality was birth within the allegiance… of the king. The principle embraced all persons born within the king's allegiance, and subject to his protection. Such allegiance and protection were mutual… and were not restricted to natural-born subjects and naturalized subjects.”
This precedent has been settled law for more than 120 years.
Legal challenges to Trump’s executive order
Following the order’s announcement, U.S. District Court Judge John Coughenour—a Reagan appointee—issued a temporary restraining order against its enforcement, calling the executive action “blatantly unconstitutional”. The case is expected to proceed through the Ninth Circuit Court of Appeals and eventually to the Supreme Court.
- Federal judge blocks Trump’s birthright citizenship order
- Full court order blocking Trump’s birthright citizenship order
Legal experts widely agree that the Supreme Court is unlikely to overturn Wong Kim Ark, given that the ruling is deeply rooted in both constitutional text and historical precedent.
Data snapshot
- Over 20 states have already filed lawsuits against the executive order.
- Wong Kim Ark (1898) reaffirmed birthright citizenship for children of non-citizens, setting binding precedent.
- Historical debates in Congress (1866) explicitly affirmed birthright citizenship, rejecting attempts to exclude children of immigrants.
Independent lens
Independent voters overwhelmingly favor upholding constitutional protections over executive overreach. Trump’s attempt to eliminate birthright citizenship through executive order sets a dangerous precedent for unilateral changes to the Constitution. The Supreme Court’s prior rulings and clear congressional intent leave little doubt that this executive action will likely be overturned.
The larger question remains: Will political leaders prioritize constitutional integrity and judicial precedent, or will they continue using executive power to bypass the legislative and judicial branches?
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