DOJ Turns Clock Back to 1898 Case to Curb Birthright Citizenship

The Justice Department is urging the Supreme Court to limit birthright citizenship for the first time since the justices famously rejected the government’s attempt to deny citizenship to a man born in the US to Chinese immigrants.

That decision, in US v Wong Kim Ark in 1898, is regarded as a landmark precedent affirming citizenship for virtually everyone born on US soil under the Constitution. Over a century later, the Trump administration is arguing that perception is wrong, and will send its top Supreme Court lawyer to make the case before the justices during oral arguments on Wednesday.

US Solicitor General John Sauer is in a similar position as his predecessor, Holmes Conrad, a Confederate veteran who pushed a restrictive view of birthright citizenship that critics say mirrors the one the government now latches onto.

“Fast forward 100 years later the government is grasping at straws trying to figure out how to make this work,” said Justin Sadowsky, the legal director at the Chinese American Legal Defense Alliance. “It looks like the first place they looked was the Wong Kim Ark briefs,” he added.

US Solicitor General John Sauer.

Photo by Anna Moneymaker/Getty Images

‘Test Case’

Whereas the current case is rooted in an executive order issued by President Donald Trump targeting the children of illegal immigrants and temporary residents, Wong Kim Ark developed from the fervent anti-Chinese discrimination of the late 19th century, said Lucy Salyer, a University of New Hampshire professor who has written about the history of the case.

The Justice Department was looking for a “test case” in order to more stringently enforce Chinese exclusion laws, said Salyer.

The agenda converged with attorneys such as George Collins and Francis Wharton, lawyers of that era who promoted the notion that citizenship must derive from international law and factors like allegiance to the US, which Chinese immigrants couldn’t satisfy.

Wong Kim Ark, born in San Francisco to parents subject to the emperor of China, became the target of that project after returning to California from a trip to China in 1895.

The Justice Department pursued the case to the Supreme Court, where Conrad, who was appointed that year as the ninth US solicitor general, crafted its position. Collins also worked as an outside amicus assisting the government.

Supreme Court

The case squared Conrad against the citizenship clause of the Fourteenth Amendment, which conferred citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”

Conrad made the legal argument that the amendment only applied to people subject to the complete political jurisdiction of the US. But he also used the government’s brief to attack the legitimacy of the Congress that had ratified it a few decades earlier.

Conrad, as Salyer wrote, was from a prominent Virginia family and became a major in the state’s cavalry during the Civil War. He called Reconstruction “that unhappy period of rabid rage and malevolent zeal when corrupt ignorance and debauched patriotism held high carnival in the halls of Congress.”

But in a 6-2 decision authored by Justice Horace Gray, the court rejected those exhortations. It ruled the Fourteenth Amendment affirmed the “ancient and fundamental rule” of birthright citizenship, which extended to “children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”

In so doing, the court backed appeals from Wong Kim Ark’s attorneys about the more inclusive intentions of the amendment’s ratifiers.

A few private parties have since renewed efforts to restrict birthright citizenship, including an attempt in the 1940s to overturn Wong Kim Ark, said Rachel Rosenbloom, a Northeastern University law professor. She noted that John Eastman, who was central to Trump’s bid to overturn the 2020 election, also submitted a brief in 2004 claiming the current understanding of the citizenship clause is incorrect.

But Rosenbloom said the litigation now underway represents the first time since Wong Kim Ark that the government is pushing that restrictive view of the Constitution.

‘Birth Tourism’

The Justice Department has argued that Trump’s executive order comports with the original intentions of the Fourteenth Amendment, which it claims limited birthright citizenship to those subject to US political jurisdiction.

In briefs submitted to the court, Sauer has cited 19th-century lawyers such as Wharton as support for that position, while arguing challengers cite zero legal commentators from that period who thought citizenship extended to babies of temporary residents and illegal immigrants.

He’s also said the effect of Wong Kim Ark was actually limited to children born to persons legally admitted and permanently domiciled within the United States, pointing to the term “domicile” being referenced more than 20 times in the opinion.

“Aliens who are just passing through the United States, and those who cross our borders illegally, lack ties of allegiance and do not obtain the ‘priceless and profound gift’ of citizenship for their children,” Sauer said in a March 19 brief, arguing a contrary view incentivizes illegal immigration and so-called “birth tourism.”

While today the fears are incentives for illegal immigration, a century ago the concern was the arrival of Chinese immigrants claiming to be “native sons,” said Salyer.

Along with the renewed focus by the government on political allegiance, she said, “the echoes are quite strong.”

The Supreme Court is expected to issue a ruling by July, roughly 128 years after its decision in Wong Kim Ark. Still, the case may feature a key difference.

Congress in the mid-20th century codified the Citizenship Clause in a pair of immigration laws, which could give the justices an avenue to avoid answering the constitutional question Sauer raised.

“That might be a big difference between what Holmes Conrad was facing when he tried to do this,” said Samuel Erman, a University of Michigan law professor. “The politics for him were a little all or nothing.”