President-elect Donald Trump’s pledge to terminate birthright citizenship faces a significant legal challenge dating back to a 126-year-old case, according to legal scholars. The U.S. Supreme Court has not specifically ruled on birthright citizenship, but the 1898 case of United States v. Wong Kim Ark is often cited by legal experts and Trump’s critics as a potential obstacle to his executive order promises.
Leti Volpp, a law professor at UC Berkeley, explained in an interview with San Francisco-based radio station KQED that the legal system is based on precedent. She noted that the Wong Kim Ark case has not been undermined by subsequent decisions, suggesting it could pose a significant legal obstacle to Trump’s plans.
Trump has repeatedly pledged to end birthright citizenship, a promise he has made since his first term. In a May 2023 campaign video, he stated that on the first day of his new term, he would sign an executive order clarifying that the children of undocumented immigrants would not automatically receive U.S. citizenship.
The 1898 case of United States v. Wong Kim Ark saw the U.S. Supreme Court rule in a 6-2 decision that a child born on U.S. soil is automatically a citizen, even if their parents are not eligible for citizenship. The case involved Wong, a 21-year-old born in San Francisco to Chinese parents, who was declared an American citizen after the court ruled his parents were lawfully admitted into the country.
Justice Gray, who wrote the court’s majority opinion, affirmed the rule of citizenship by birth within the territory, including all children born of resident aliens. Legal experts suggest that this wording and other statements made by Gray could force Trump to reconsider his plans to end birthright citizenship.
However, Trump’s supporters and right-wing advocates argue that the 1898 Supreme Court ruling does not account for undocumented immigrants. Federal judge James C. Ho, for example, has argued that Wong’s citizenship was due to his parents being permanent and lawful residents of California.
Volpp expressed skepticism that courts would agree with the characterization of immigrants as an ‘invading army,’ noting that immigrants are not immune from prosecution if they commit a crime in the U.S. She also pointed out that the idea that children of hostile armies are not subject to U.S. jurisdiction comes from old English law.
Ming H. Chen, a professor at UC Law San Francisco, emphasized the importance of the Wong decision’s relationship to the Fourteenth Amendment. She noted that all three branches of government must serve the Constitution, and the president cannot exceed its bounds in issuing an executive order.
Chen and Volpp explained that if Trump does issue an executive order declaring the future children of undocumented immigrants as non-citizens, it would likely face immediate litigation. They believe Trump would need to change the actual text of the Constitution to achieve such a change.