Shows court controlling Supreme Court precedent dooms challenge |
WASHINGTON—Today, the Immigration Reform Law Institute (IRLI) filed an important brief in Maryland federal district court in a case on birthright citizenship. Plaintiffs, a group of organizations with illegal alien members, claim that President Trump's executive order restricting birthright citizenship is unconstitutional, and that children of illegal aliens are guaranteed citizenship in the Fourteenth Amendment.
The Citizenship Clause of the Fourteenth Amendment provides that persons born in the United States while "subject to the jurisdiction" of the United States are citizens. The question then becomes whether illegal aliens—and others present in the United States, such as tourists—are subject to the jurisdiction of the United States.
To answer that question, IRLI analyzes a controlling Supreme Court case, United States v. Wong Kim Ark, decided in 1898. Wong Kim Ark was born in San Francisco to Chinese parents legally residing there. He later returned with his parents to China. Denied readmittance, Wong Kim Ark argued before the Supreme Court that the Fourteenth Amendment made him a citizen of the United States at his birth.
The Supreme Court agreed, holding that, because—and only because—his parents were legally residing in the United States when he was born here, he was a citizen at birth under the Fourteenth Amendment. The holding of this case is widely misread as conferring citizenship at birth under the Fourteenth Amendment on all persons whatsoever born in the United States (with the narrow exceptions of children of diplomats, members of an invading force, or Indians born in the allegiance of a tribe). IRLI shows in its brief that this reading is wrong; the Court clearly excluded the children of illegal aliens and non-U.S. residents from constitutional birthright citizenship:
Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here; and are "subject to the jurisdiction thereof."
In other words, the Supreme Court has clearly held that, to be a citizen at birth under the Fourteenth Amendment, one must be born in the United States to a parent who, at the time, resided with permission in the United States. This rule happens to exclude the children of both illegal aliens (who do not have permission to be in the country) and tourists (who do not "reside" here) from constitutional birthright citizenship.
Thus, the plaintiffs' claim that President Trump's order is unconstitutional on its face—that is, would have no valid application in any situation—is wrong: the order correctly denies birthright citizenship to all children of illegal aliens, tourists, and others who do not reside with permission in the United States.
"Amazingly, the broad but reasonable holding of Wong Kim Ark—excluding the children of non-residents and illegal aliens from citizenship at birth under the Constitution—has been ignored or misstated for 127 years," said Dale L. Wilcox, executive director and general counsel of IRLI. "Meanwhile, millions, including the children of so-called 'birth tourists,' have been assumed to be citizens even though the Supreme Court has held they are not. In America, neither foreigners with no connection to this country nor those here against the will of the nation should get to decide who shall be American citizens. President Trump's order stops that going forward, and we hope the court recognizes its validity under the Constitution."
The case is Casa, Inc. v. Trump, No. 8:25-cv-00201 (D. Md.). |
The halfway point of the 2025 General Assembly Session is almost here. The activity around Capitol Square has ramped into overdrive as we race toward Crossover, the point at which each chamber can only take up the other chamber's bills. And while I'm disappointed with the overall outcome from our Democratic majority, I am proud of the successes we've had. Like most of my Republican colleagues, several of my bills were not even given a hearing and most that were heard, were dismissed. One of those would have required that ballot drop boxes be monitored by video. I pointed out to the Democrat-controlled committee hearing the bill, that since moving to 45 days of voting, there is a lot of room for mischief and having the boxes monitored by video would boost confidence. If we're going to the expense of a 45-day voting season, let's at least put video monitoring in place to make the drop boxes more secure. Another of my bills, which wasn't even docketed, calls for a 20-year statute of limitations for victims of sex-disguising ("trans-gender") procedures to sue their medical provider. The ethics of having children make decisions that could permanently alter their physical constitution is questionable at best and those who manipulate vulnerable children in this way should be held accountable.
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