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In view of the decision that will soon issue forth from the Roberts Court, we often get requests to do an overview of the case that is most relevant to this area of law—United States v. Wong Kim Ark (1898). Ask, and ye shall receive.
At the time this case arose, Chinese immigrants were not exactly welcome in the country, despite the fact that they were largely responsible for building the railroads and other infrastructure that were powering the country's growing economy. The Chinese Exclusion Act, enacted in 1882, prohibited people like Wong's parents from becoming naturalized citizens and placed strict limits on their ability to live and work in the U.S.
Undoubtedly, readers know that there was a lot of racism in 19th century America. In the South, that racism was directed at Black Americans. In the Northeast, there weren't too many Black people, and the favored scapegoat was Irish Americans, and later immigrants from southern and eastern Europe. In California, far and away the largest non-white group, at least after the Natives were nearly wiped out, was Chinese Americans. The Chinese were the target of a vicious xenophobic political movement called the Workingmen's Party, and were subject to acts of violence, limitations on civil rights and, ultimately, exclusion. This is the world into which Wong was born sometime around the year 1870.
Everyone agreed on the facts of his case: Wong was born in San Francisco of Chinese parents, who were "subjects of the emperor of China" but permanently "domiciled" in the U.S. at the time of their son's birth. Wong had visited China several times in his teens and early twenties, and was allowed to return to the U.S. on the basis that he was a U.S. citizen. But when he left for China and then returned in 1895, a customs collector refused his return entry to the U.S. on the basis that he was NOT a U.S. citizen.
The U.S. Supreme Court had not yet interpreted the meaning of the Fourteenth Amendment's provision that all persons born in the U.S. "and subject to the jurisdiction thereof" are U.S. citizens, but other, lower courts had interpreted it in other contexts. The Amendment was enacted in 1868, so in 1898, when Kim Wong Ark was decided, the Court had good sources from which to ascertain the framers' intent when drafting this provision.
The Court did an exhaustive analysis of court cases, congressional debates, and English common law. The common thread was that citizenship was conferred by virtue of birth in the country and did not depend on the birthplace of the parents. The Supreme Court couldn't find a single case that was decided differently. The only exceptions, which are encompassed by the phrase "and subject to the jurisdiction thereof," are children of diplomats, children of foreign occupiers during wartime, and children born of Indian tribes on tribal land. Put another way, anyone who answers to American law, even if they ALSO answer to the laws of another nation or entity, is covered by "and subject to the jurisdiction thereof."
In its decision, the Court found that the timeline of the enactment of the Civil Rights Act of 1866 and the later-enacted Fourteenth Amendment to be critical. The debates over the CRA informed the language ultimately adopted for the Fourteenth Amendment, which was ratified in 1868. During the debates, for example, Sen. Edgar Cowan (R-PA) was incredulous that the California delegation would be in favor of a law that would allow the children of Chinese laborers, who were here temporarily, to be citizens simply because they were born here.
In response, Sen. John Conness (R-CA) replied: 'The proposition before us relates simply, in that respect, to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the Nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States."
Importantly, the Court found that the Fourteenth Amendment is declarative of existing law and imposed no new restrictions on attaining citizenship. And, in its view, existing law recognized citizenship by birth regardless of the parents' birthplace. To reiterate this point, the Court noted that it was accepted that all white persons born in the U.S. of foreign-born parents were U.S. citizens. And the main purpose of the Fourteenth Amendment was to establish citizenship of those of African descent who were born in the U.S., and had been previously denied citizenship by Dred Scott and a handful of other court decisions. Consequently, the Court found that those rights apply to all races, since the Fourteenth Amendment makes no distinction based on race (with the exception of excluding Native Americans). While the politicians may have been concerned at the time with the Chinese, the Court reminded the parties that it could not consider politics in its ruling, as the decision would affect the U.S.-born children of foreign-born parents from all countries, including Europe. The Court could not base its decision on the race or color of parents.
The Court also found that the Fourteenth Amendment restricts Congress' ability to place limits on this right: "The Fourteenth Amendment, while it leaves the power, where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship." The result of the Court's decision is a clear, bright line rule. The default is if you're born in the U.S., you're a citizen, with only narrow exceptions that someone contesting a person's citizenship has the burden of proving.
By contrast, the Trump administration is claiming that the opposite is true—that being born here is just the first step in the process of proving citizenship. It is the position of the administration that a person must also prove that either their parents are U.S. citizens or they had established "domicile" in the U.S. According to Trump, "domicile" means "permanent residence and an allegiance to the United States." But the holding in Wong Kim Ark, which rejected any such tests, simply does not support that argument.
The current Supreme Court has quite the reputation for ignoring past precedent, and trampling on stare decisis. However, to overturn or significantly revise Kim Wong Ark would be to take a sledgehammer to a bedrock principle of American law, and would create all sorts of chaos. During oral argument for the current case, a majority of the justices seemed to agree. If the current chief justice was John Marshall or Earl Warren, they would see to it that if Kim Wong Ark is going to be upheld anyhow, it be done unanimously so as to remove any doubt. But John Roberts is no Marshall or Warren. So, the result that seems most likely here is something like a 6-3 decision. We'll know soon, as we are entering into prime "decision-issuing" season, which generally runs through mid-June or so. (L & Z)