AMONG THE CASCADE of executive orders that came when President Donald Trump took office Monday, his new administration dropped a big one.
Under the caption, “Protecting the Meaning and Value of American Citizenship,” Trump ordered that effective Feb. 19, the United States would no longer recognize, or provide documentation of, the citizenship of two groups of individuals born in the United States.
The excluded groups are children whose mother was in the country illegally or who was only here on a temporary basis, in each case assuming that the father was not a citizen or a legal resident at the time.
Within 24 hours of the order, California and 17 other states, along with the District of Columbia and the city of San Francisco, sued in federal court in Massachusetts to enjoin the Trump administration from implementing the executive order.
In a news conference held in San Francisco on Tuesday morning, California Attorney General Rob Bonta called the order “un-American” and said it set a “terrifying tone” for the rest of Trump’s term in office.
Bonta said that the right to citizenship for those born in the country is guaranteed by the 14th Amendment to the Constitution and has been recognized by the U.S. Supreme Court for more than a hundred years.
He vowed that California will stand tall in the defense of the rights of immigrants. He added, “I have one message for President Trump: I will see you in court.”
Bonta was joined by San Francisco City Attorney David Chiu, who called the order a “tragedy” that was issued in “blatant disregard” for the law.
Chiu added, “It is simple. It is clear. It is plain. The 14th Amendment’s guarantee is regardless of race, color or background. And this principle, grounded in fairness and accountability and inclusivity, has remained a constitutional bedrock for 127 years.”
The legacy of Wong Kim Ark
Bonta and Chiu emphasized San Francisco’s long and strong historical connection with the issue of birthright citizenship.
In 1898, the Supreme Court considered the citizenship of a San Francisco resident named Wong Kim Ark.
Ark was born on Sacramento Street in San Francisco in 1873, five years after the 14th Amendment was enacted. His parents were Chinese citizens domiciled in the city, but they were not U.S. citizens.
In 1895, after a trip abroad, Ark was denied reentry to the country on the grounds that the Chinese Exclusion Act, passed by Congress in 1882, barred Chinese immigrants from entry. U.S. citizens of Chinese ancestry were not subject to the act.
In a lengthy and exhaustive analysis of the law, the Supreme Court concluded that Ark was an American citizen by virtue of birth and therefore not subject to exclusion.
Appearing at the news conference with Bonta and Chiu was Larry Yee from the Chinese Consolidated Benevolent Association in San Francisco. Yee said that 125 years ago, members of the association had raised the funds for Ark’s legal defense, and the organization now stands with the city and state in pressing the fight forward.
The 14th Amendment famously says that all persons born in the United States and “subject to the jurisdiction thereof” are citizens.
The executive order essentially argues that the two excluded categories are not covered by the provision because even though the excluded children are born in the country, they are not “subject to the jurisdiction of the United States.”
While on its face it would seem that any person born in the country would be “subject to its jurisdiction,” a contrary argument is made in a 2011 commentary republished on the Heritage Foundation website.
The Heritage Foundation is a conservative think tank and the author of Project 2025, a 900-page policy manual prepared for use by the Trump administration (though Trump distanced himself from the manual during his campaign).
The commentary by Heritage senior legal fellow Hans von Spakovsky argues that the phrase “subject to the jurisdiction” of the United States was not intended to mean that anyone present in the country was covered. Rather, it is argued, the phrase requires that the person not also owe “allegiance” to a foreign country.
“It is just plain wrong to claim that the children born of parents temporarily in the country as students or tourists are automatically U.S. Citizens,” von Spakovsky wrote. “They are, in fact, subject to the political jurisdiction (and allegiance) of the country of their parents.”
The consequences of denying birthright citizenship
While the author contends that the Supreme Court was wrong in the Ark case, he says “even under that (decision), citizenship was not extended to the children of illegal aliens — only permanent, legal residents.”
The state and city do not buy that interpretation. The complaint contends that based on contemporaneous records, the sovereignty qualification was directed at children of foreign diplomats and native Americans who were children of foreign diplomats or members of tribes that had recognized sovereignty over their members in the United States.
Bonta emphasized the serious consequence of the order. He said it would deny citizenship to roughly 150,000 children a year, of which more than 20,000 are in California. That would mean they would “lose the ability to obtain Social Security numbers and a passport when they grow up. (They) wouldn’t be able to work legally.”
In addition, they wouldn’t be able to vote and would “lose eligibility for a wide range of federal programs such as federal food and housing assistance, federal financial aid for students and more.”
The suit brought by California and San Francisco is not the only challenge to the executive order; a similar lawsuit was filed Monday in federal court in New Hampshire by a coalition of advocacy organizations led by the American Civil Liberties Union and including San Francisco’s Asian Law Caucus.
Anthony Romero, executive director of the ACLU, said in a statement, “This order seeks to repeat one of the gravest errors in American history, by creating a permanent subclass of people born in the U.S. who are denied full rights as Americans … The Trump administration’s overreach is so egregious that we are confident we will ultimately prevail.”
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