Can the 14th Amendment’s Birthright Citizenship Rule be Overturned?

Civil Rights Policy Brief #212 | By: Rodney A. Maggay | September 18, 2023

Photo taken from: teachingamericanhistory.org

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Section One of the Fourteenth Amendment to the United States Constitution provides: “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.”

In 1898, the United States Supreme Court decided the case United States v. Wong Kim Ark. In a 6 – 2 decision that examined the Citizenship Clause of the Fourteenth Amendment, the Court held that a person born within the geographic boundaries of the United States acquires U.S. citizenship even if the person’s parents are foreign nationals of another country. (There are limited exceptions for children born within the U.S. whose parents are diplomats working in the U.S.). The case concerned the birth of Wong Kim Ark, who was born in San Francisco to Chinese parents who were not U.S. citizens. Wong Kim Ark grew up in San Francisco and then traveled back and forth numerous times between San Francisco and China. On a return trip to San Francisco, Wong Kim Ark was denied re-entry to the United States on the grounds that he was not a U.S. citizen. A lawsuit was brought which eventually was appealed to the United States Supreme Court. The Court’s decision decided that Wong Kim Ark acquired U.S. citizenship when he was born in San Francisco and established the precedent that persons born in the United States automatically acquire U.S. citizenship. This has been the current rule of birthright citizenship in the U.S. for more than a century.

On September 8, 2023, United States GOP presidential candidate Vivek Ramaswamy declared that he would deport children born in the United States of parents who are illegal aliens because of his disagreement with the Fourteenth Amendment’s birthright citizenship rules under the Citizenship Clause. Other GOP presidential candidates have taken a similar position. Former President Trump announced in May 2023 that he would end birthright citizenship by executive order on his first day back in office. Florida Governor Ron DeSantis has pledged, as part of his immigration plan, to end birthright citizenship. And Florida Representative Matt Gaetz in April introduced a bill in the House that would end birthright citizenship if passed. LEARN MORE

Policy Analysis: The issue of birthright citizenship and whether it should still be a current rule of American citizenship has been under debate for a number of years. Historically, some states tried to revive the issue and introduce a bill in the state legislature to curtail or eliminate birthright citizenship but none have been successful. The reason the idea has become popular with GOP candidates is because immigration has become an attractive issue for the GOP’s base and by offering a solution, GOP candidates can expect to attract more voters to their campaign.

However, there is one problem with the way the GOP has approached the issue of birthright citizenship. Former President Trump and others have pledged to eliminate the rule with an executive order if they are elected. But this is quite simply impossible to do. The Wong Kim Ark Supreme Court case in 1898 definitively addressed and ruled on the issue. A President or a candidate to claim that they can end or overturn a Supreme Court ruling with only an executive order must not have an understanding of how legal precedents work and the hierarchy built into legal rulings, especially from the Supreme Court, the highest court in the land. If any President could simply overturn any decision at the stroke of a pen, it would cause legal chaos and allow a President to nullify any Supreme Court ruling at his or her whim, which is not what the Founding Fathers intended with the Constitution. What is likely going on is that these GOP candidates are looking for a way to appeal to and attract more voters and they are doing this by focusing on immigration, even if their proposals to end birthright citizenship with an executive order cannot legally be done.

However, the bill introduced by Representative Matt Gaetz is a little more problematic. If the rule laid down by the Supreme Court in the Wong Kim Ark case can be overturned, a vote by Congress is one way it could happen. An amendment to the Constitution was floated but the requirements to amend the Constitution are extremely high so that course is nearly impossible. (A constitutional amendment requires a two-thirds vote for the amendment in both houses of Congress and then approval by three – fourths of the states). However, Congress has sometimes voted to overturn a Supreme Court ruling, which it has the power to do, by enacting new legislation that is contrary to the Supreme Court decision. It does not happen often but does occasionally, usually if there is bipartisan support to vote to overturn the ruling. (The Religious Freedom Restoration Act of 1993 was passed in response to and to overturn the Court’s 1990 decision Employment Decision v. Smith). The sharp divisions in Congress now make it unlikely that Rep. Gaetz’s bill will be passed but it still should be noted that the issue of birthright citizenship is still a significant issue with the GOP. Whether their proposals are legally silly (elimination through executive order) or pursued through proper channels, birthright citizenship will likely be a talking point in the run up to the 2024 election. LEARN MORE

Engagement Resources: 

• History – popular channel’s article on the history of birthright citizenship.
• Smithsonian Magazine – historical article on birthright citizenship with more personal details on the Wong Kim Ark case.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.