Birthright Citizenship

Who gets to be a Citizen of the United States?

Protestor and Child

That is the question at issue in the pending birthright citizenship case before the Supreme Court of the United States (SCOTUS). On April 1, 2026, the highest court of our nation will hear oral arguments in Trump v. Barbara and decide this question, which is at the heart of who we are as a country.

"Where are you really from, like where were you born? But your parents, where did they come from?"

If YOU have been asked this question, you know that some people assume you are a foreigner, not a United States citizen, not an American. A digression. . . . every time I write or say the word American, I feel a desire to correct the record and be precise in the use of language: everyone in North and South America is an American, as Bad Bunny noted in the halftime Super Bowl Show. But since everyone uses the word American to refer to a US Citizen, I will too.

For some years now, and especially since the Trump Regime's push to deport millions of people has gone into high gear, those of us who are asked this question live with a level of underlying fear that we too can be targets of ICE and other law enforcement efforts.

You have likely read a news story or two about Native Americans who were assumed to be immigrants. Here's one example. Several months ago, Leticia Jacobo, an enrolled member of the Salt River Pima-Maricopa Indian Nation, was arrested in Iowa on a traffic-related incident. When her mother went to pick her up at the jail, she was informed that Leticia was being held on an immigration hold (an ICE detainer) for potential deportation.

"Deportation, how is this possible?" asked her mother. Leticia was released only after her family presented her birth certificate and, following a phone call from the police chief of the Salt River Pima-Maricopa Indian Nation, who confirmed that she was an enrolled member of the tribe. In short, she did not "look American," thus the burden was on her to prove she was a citizen.

Protest Sign

Unfortunately, a significant number of people in this country, and in particular many supporters of Donald Trump, publicly declare that the United States is a country by and for white people, and those of us who aren't considered white aren't welcome here. The growing number of people with ancestral roots from south of the US-Mexico border, Asia, Africa, and India has fueled the “Great Replacement” theory, a far-right conspiracy theory that claims that white populations in the United States are being deliberately “replaced” by non-white immigrants through immigration, demographic change, and lower birth rates among white people. This theory is also popular in Europe and is fueling anti-immigrant sentiment in many countries.

At its heart, the issue of who gets to claim American citizenship is about race. The first case addressing this issue was the Dred Scott Decision in 1857, when the Supreme Court ruled that Black people could not be U.S. Citizens. This has long been viewed as one of the most shameful decisions in the Supreme Court's history. In response, Congress eventually adopted the 14th Amendment to the United States Constitution in 1868, and it contains the Citizenship Clause: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." 

The anti-immigrant sentiment today is fueled in great part by Donald Trump and Stephen Miller's hatred of Mexicans, but extends to all Latinos. Thrown in for good measure to this specific brand of xenophobia is the racist desire to be rid of Black people, wherever they may come from. Although there is a strong dose of anti-Asian animus, the key targets are black and brown people.

The Supreme Court previously addressed this issue in United States v. Wong Kim Ark in 1898.

The Wong Kim Ark case was rooted in hatred and resentment of Chinese people on the West Coast, where vibrant communities were established in places like San Francisco and Los Angeles. Chinese residents were easy targets of racial resentment, which often led to violence against them. In fact, the largest mass lynching in California history was in 1871, when 19 Chinese men and boys were lynched in LA’s Chinatown.

Not long after those terrible lynchings, a young Chinese couple living on Sacramento Street in San Francisco welcomed their new son. The immigration laws excluding the Chinese didn’t yet exist. They were passed when Wong Kim Ark was nine years old

Wong Kim Ark

At age 21, Wong traveled to China. When he returned several months later, they wouldn’t let him off the ship in San Francisco because of the Chinese Exclusion Act.

Wait up, says Wong, I’m a United States citizen, born and raised on Sacramento Street. Not anymore, said the government.

A prominent lawyer and proud Irishman filed a lawsuit against the government and won. The federal court ruled that Wong Kim Ark was a US citizen and had a right to return to his home. The government appealed, and ultimately the United States Supreme Court ruled three years later that the 14th Amendment of the Constitution means what it says: People born in the United States are citizens of this country. For three long years, while the various appellate courts considered the question, Wong Kim Ark was in prison in Angel Island on San Francisco Bay.

Fast forward 127 years. With the stroke of a Sharpie, Donald Trump issued Executive Order 14160, Protecting the Meaning and Value of American Citizenship, which claims the Citizenship Clause did not grant citizenship when a child's mother was unlawfully present in the United States and the father was not a U.S. citizen or lawful permanent resident, or when the mother's presence was lawful but temporary and the father was also not a citizen or permanent resident.

Numerous cases were filed immediately after this Executive Order was signed, and several federal judges issued nationwide injunctions that halted enforcement. Judge John Coughenour, a Seattle-based Reagan appointee, one of the judges blocking the order, noted the following: "I can't remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order."

Although SCOTUS ruled against nationwide injunctions in these cases, the Executive Order remained blocked by new lawsuits that enjoined it from taking effect.

Legal experts expect that the Supreme Court will rule that this Executive Order banning birthright citizenship violates the Constitution and that the law will remain the same. Anyone born in the United States is a citizen.

U.S. Solicitor General D. John Sauer will argue for the Trump Administration in defense of eliminating birthright citizenship. Cecillia Wang, the National Director of the American Civil Liberties Union, described as a "second-generation American" by the ACLU, will argue that anyone born in the United States is a citizen of this country. A decision in this landmark case is expected in late June or early July.