President Donald Trump has said since his first administration that he wants to end birthright citizenship, a constitutional right for everyone born in the United States.
This week he issued an executive order that would eliminate it, upending more than a century of precedent. On Thursday, however, a federal judge temporarily blocked it after 22 states quickly mounted a legal challenge.
Over the years the right to citizenship has been won by various oppressed or marginalized groups after hard-fought legal battles. Here’s a look at how birthright citizenship has applied to some of those cases and how the Justice Department is using them today to defend Trump’s order.
Native Americans were given U.S. citizenship in 1924. The Justice Department has cited their status as a legal analogy to justify Trump’s executive order in court.
Arguing that “birth in the United States does not by itself entitle a person to citizenship, the person must also be ‘subject to the jurisdiction’ of the United States.” It raised a case from 1884 that found members of Indian tribes “are not ‘subject to the jurisdiction’ of the United States and are not constitutionally entitled to Citizenship,” the department said.
Many scholars take a dim view of the validity of that analogy.
It’s not a good or even new legal argument, said Gerald L. Neuman, a professor of international, foreign and comparative law at Harvard Law School. “But it’s got a bigger political movement behind it, and it’s embedded in a degree of openly expressed xenophobia and prejudice.”
Some say the legal analogy to the citizens of tribal nations plays directly into that.
“It’s not a valid comparison,” said Leo Chavez, a professor and author at the University of California, Irvine, who studies international migration. “It’s using the heat of race to make a political argument rather than a legal argument.”
“They’re digging into old, archaic Indian law cases, finding the most racist points they can in order to win,” said Matthew Fletcher, a professor of law at the University of Michigan and a member of the Grand Traverse Band of Ottawa and Chippewa Indians. “There’s nothing sacred in the Department of Justice. They’ll do anything they can to win.”
In addition to his order on birthright citizenship, Trump has directed immigration arrests to be expanded to sensitive locations such as schools. That holds special implications in the border state of New Mexico, where U.S. citizenship was extended in 1848 to residents of Mexican and Spanish descent under the Treaty of Guadalupe Hidalgo, which ended the U.S.-Mexico war.
The state’s 1912 Constitution includes a guarantee saying “children of Spanish descent in the state of New Mexico shall never be denied the right and privilege of admission and attendance at public schools … and they shall never be classed in separate schools, but shall forever enjoy perfect equality with other children.”
State Attorney General Raúl Torrez has highlighted that provision in guidance to K-12 schools about how to respond to possible surveillance, warrants and subpoenas by immigration authorities. The guidance notes that children cannot be denied access to public education based on immigration status, citing U.S. Supreme Court precedent.
The issue of whether enslaved people were eligible for U.S. citizenship came to the forefront in 1857 when the Supreme Court ruled 7-2 against Dred Scott, a slave, and his bid to sue for freedom. In their decision, the court said Black people were not entitled to citizenship and even claimed they were inferior to white people.
The Dred Scott decision contributed to the start of the Civil War. With the North’s victory over the South, slavery became outlawed. Among the constitutional protections put in place for formerly enslaved people, Congress ratified the 14th Amendment in 1868, guaranteeing citizenship for all, including Black people.
“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 14th Amendment says. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
That effectively nullified the Dred Scott ruling.
All children born in the U.S. to immigrants have the right to citizenship thanks to a Chinese man whose landmark 1898 case went all the way to the U.S. Supreme Court.
Wong Kim Ark was born in San Francisco to parents from China. But when he tried to return to the U.S. after a visit to that country, the government denied him reentry under the 1882 Chinese Exclusion Act, which restricted immigration from China and barred Chinese immigrants from ever becoming U.S. citizens.
Wong argued that he was a citizen because he was born in the U.S. In siding with him, the Supreme Court made explicit that the citizenship clause of the 14th Amendment automatically confers citizenship to all U.S.-born people regardless of their parents’ status.
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