Today, the Supreme Court announced that it will review President Trump’s Executive Order stripping the children of undocumented immigrants born in the United States of their citizenship. Don’t count on anything good coming from this.
Although the text of the Fourteenth Amendment is clear that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” and the Supreme Court ruled in 1898 in United States v. Wong Kim Ark that “[t]he [Fourteenth] Amendment, in clear words and in manifest intent, includes [as citizens] the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States,” the Court’s conservative justices will see the clause “and subject to the jurisdiction thereof” as an opening big enough to drive a truck through. They will also distinguish the situation in Wong Kim Ark from today’s undocumented immigrants by the fact that Wong’s parents, although ineligible for naturalization under the Chinese Exclusion Act, appear to have been legally “domiciled” in the United States. The Government’s argument, summarized by the New York Times as follows, will be very persuasive to the conservative majority:
In a brief to the court, Solicitor General D. John Sauer asserted that the 14th Amendment was intended to ensure citizenship after the Civil War for “the newly freed slaves and their children, not on the children of aliens temporarily visiting the United States or of illegal aliens.”
The view that the 14th Amendment guaranteed citizenship to children born on U.S. territory was “mistaken,” Mr. Sauer wrote, and had become “pervasive, with destructive consequences.” He asserted that Mr. Trump’s order would merely “restore the clause’s original meaning.”
The Fourteenth Amendment, probably the Constitution’s single most progressive provision, does something that authoritarians hate: it puts citizens above the government. It gives everyone born in the country equal status as a “citizen,” entitled to “privileges [and] immunities” that may not be abridged, as well as “due process of law” and “the equal protection of the laws.” Authoritarians want to be above citizens, with the power to say who has rights and belongs to the national community, and who is an outcast subject to their whims.
Sadly, it is abundantly evident from their enthusiasm for an all-powerful “unitary executive” and broad presidential immunity that the Supreme Court is an enabler of Trump’s authoritarianism. I hope I’m wrong, but I doubt this Court will echo the words of a very conservative nineteenth-century Court that everyone born in the United States is a citizen.
