On Wednesday morning the U.S. Supreme Court will consider what makes someone a United States citizen.
For more than 150 years, the United States has had a simple rule: Anyone born in the United States — with very limited exceptions — is an American citizen.
But on the first day of his second term of office, President Donald Trump tried to upend that definition of citizenship. No longer, Trump said, is being born in America enough to be an American. Instead, babies would no longer be an American if their parents are in the U.S. either illegally or just temporarily.
Trump’s attempt to end birthright citizenship was blocked almost immediately by a federal judge in Washington, who, ruling on a lawsuit filed by Washington state, called Trump’s executive order “blatantly unconstitutional.” More than a half-dozen other federal courts followed, all ruling Trump’s order unconstitutional.
The case now arrives at the Supreme Court, with Washington no longer front and center, but still eager to be heard.
Following its losses in lower courts, the Trump administration appealed two cases to the Supreme Court — the case brought by Washington and other states, and a case brought by the parents of babies who would be denied citizenship by Trump’s order. The Supreme Court chose to hear the case brought by parents, Trump v. Barbara.
That didn’t stop Washington, not to mention, Seattle, King County and most of Washington’s congressional delegation, from making arguments to the court, in the form of amicus briefs, about why they say birthright citizenship should remain the law of the land.
Birthright citizenship is found in the 14th Amendment to the Constitution, which begins: “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 Trump administration’s new interpretation rides on the clause “subject to the jurisdiction thereof,” which they say excludes the children of undocumented immigrants because they do not have an “immediate allegiance” to the United States.
Washington, along with 22 other states and the District of Columbia, wrote to the court to disagree.
Jurisdiction doesn’t mean allegiance, Washington Attorney General Nick Brown and others wrote, it means “subject to a nation’s laws.” And, of course, immigrants — documented or not — are subject to American laws. Brown, who sued to block Trump’s order the day after it was issued, and his co-writers looked to the past — to legislators and government officials and dictionaries from the time of Reconstruction, when the 14th Amendment was written, to prove their point.
They cite the definition of jurisdiction in Noah Webster’s eponymous dictionary. They cite “A Dictionary of the English Language” (1860), “Law Lexicon, or Dictionary of Jurisprudence” (1860), and “Dictionary of Terms and Phrases Used in American or English Jurisprudence” (1879).
“Every branch of the Federal Government has followed this understanding,” Brown and his fellow attorneys general wrote. “For its part, this Court has repeatedly accepted, in case after case, that children born in the United States and subject to its laws are citizens.”
Leaders of Seattle and King County joined with local officials from 25 other states in writing to the court to stress not so much the constitutional history as the present day stakes.
Trump’s order would restrict “residents from fully participating in American life and create a new permanent, multigenerational underclass,” wrote King County Executive Girmay Zahilay, County Prosecutor Leesa Manion and Seattle City Attorney Erika Evans, along with dozens of others. “While some impacted children may acquire the citizenship of their parents, others would have no citizenship or nationality — leaving them stateless.”
They estimate that as many as 255,000 babies a year would lose citizenship under Trump’s executive order. They will become “legal outcasts,” the local officials wrote, barred from voting, serving on a federal jury or in elected office.
If they are born here, but not American citizens, would they be citizens of any country at all? It would depend on the laws of their parents’ home countries.
“Stripping U.S.-born children of citizenship would develop a permanent underclass of extremely vulnerable subjects with no legal status in the U.S., some of whom will be left stateless,” the local officials wrote.
Seven Democratic members of Washington’s congressional delegation joined more than 200 other members to wrote to the court, stressing that immigration laws passed over the last century are based on an understanding of birthright citizenship and would be rendered “incoherent” under Trump’s interpretation.
“This incoherence is all the more concerning because — should the Administration prevail in this litigation — millions of Americans will suddenly no
longer be citizens,” wrote Sen. Patty Murray, Reps. Suzan DelBene, Pramila Jayapal, Rick Larsen, Emily Randall, Adam Smith and Marilyn Strickland, along with their colleagues.
The Trump administration has said it would only apply its ban on birthright citizenship going forward, that it would not apply to people already born here. But, the members of Congress wrote, if the Supreme Court endorses the administration’s definition, then it’s the law of the land.
“Millions of Americans will simply no longer meet the constitutional and statutory criteria for citizenship,” they wrote. “The Administration cannot change that by announcing that it will (for now) treat those erstwhile Americans as if they were citizens, giving them benefits the law forbids them to have.”
