The 14th amendment’s Citizenship Clause establishes that “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.” Ratified after the Civil War to nullify the Supreme Court’s Dred Scott v. Sandford decision, which ruled that Black Americans couldn’t be citizens of the United States, it defined citizenship and enshrined the long-standing doctrine of jus solis (“right of soil”)—meaning citizenship by place of birth—in constitutional law.
While the president-elect can’t end birthright citizenship for the US-born children of undocumented immigrants with an executive order alone, he can conceivably set up a legal challenge to the reigning interpretation. As Trump hinted at in the 2015 interview with O’Reilly, he and his allies might look at the courts to do their bidding. And they have a playbook for it: undermine the lesser-known Supreme Court landmark decision in the 1898 Wong Kim Ark case reaffirming the guarantee of citizenship to virtually everyone born in the United States.
For years, opponents of birthright citizenship for the children of unauthorized immigrants have toyed with the possibility of overturning the Wong Kim Ark precedent. Increasingly, such a line of attack seems less hypothetical—especially in light of a Supreme Court conservative supermajority that has demonstrated a willingness to undo their major rulings, like Roe v. Wade, regardless of what the political repercussions and real-life consequences might be.
Inviting the Supreme Court to revisit Wong Kim Ark, explains Robert L. Tsai, a professor of constitutional law at Boston University, “would give the Trump administration the opportunity to ask the court to either overrule or narrow” the well-established legal precedent. “You’ve got a president and a bunch of people around him who disagree fundamentally with notions of citizenship and how they’ve been done for a very long time,” he says. “We’re going to find out just how far they can push those changes.”
It would be nothing short of seismic. “It’s really 100 years of accepted interpretation,” Hiroshi Motomura, a scholar of immigration and citizenship at UCLA’s law school, told me of birthright citizenship. Ending birthright citizenship would cut at the core of the hard-fought assurance of equal treatment under the law, he said, “basically drawing a line between two kinds of American citizens.”
To understand how an attack on birthright citizenship could be mounted, let alone prevail, it’s important to know what stands in the way of it.