Today the Supreme Court will hear oral arguments in Trump v. Barbara, the case that will determine whether or not President Donald Trump has the authority to end birthright citizenship in the United States.
On his first day in office, Trump signed executive order 14160 which sought to end birthright citizenship. Birthright citizenship means, in short, that if you are born on U.S. soil, you are a U.S. citizen. Trump wants to take U.S. citizenship away from children whose parents are in the United States either temporarily or without documentation. Legal challenges were filed almost immediately, and the order has never gone into effect.
So far, every lower court has ruled against Trump. But the Supreme Court, which now has a conservative majority, will have the final say. The Court will hear oral arguments today. Legal experts anticipate a decision this June.
You might be surprised to learn that to defend his executive order in the courts, the Trump administration is relying on federal Indian law. Lawyer for Trump arguing there have been people born on U.S. soil excluded from U.S. citizenship. And that previously the Supreme Court has said this is okay. And they’re not wrong–generations of Native Americans were born on U.S. soil, but denied citizenship.
At the heart of this case is the 14th Amendment. The 14th Amendment was passed at the end of the Civil War during reconstruction. It is the part of the Constitution that guarantees birthright citizenship. The citizenship clause reads “All persons born… in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” It was originally drafted to extend U.S. citizenship to formally enslaved people, but since then, the amendment has applied to lots of other people, including the children of immigrants. But the 14th Amendment was written with a carve out. And that carve out reads “excluding Indians not taxed.”
John Elk was born in 1845 on the Winnebago reservation in Nebraska. He was a young adult when the 14th Amendment was drafted and ratified. Later in life, Elk moved to Omaha, Nebraska, where in 1880, he attempted to register to vote. His application was denied. The local voting registrar said Elk couldn’t vote, because he was not a U.S. citizen. Elk appealed his case all the way to the Supreme Court. In Elk v. Wilkins, the high Court sided with Wilkins, the voting registrar. The Court ruled John Elk could not be a citizen of the United States because he was not “subject to the jurisdiction thereof” under the 14th Amendment. And that was because Elk was Native American and born on his reservation.
In their briefs to the Supreme Court, the Trump administration cites Elk v. Wilkins heavily. They are using the 1884 ruling to argue the 14th Amendment was intended to extend citizenship to Black and formerly enslaved people only. Elk v Wilkins helps the Trump administration out with this narrow and rare interpretation. To justify denying John Elks citizenship and the right to vote, the high Court wrote the purpose of the 14th Amendment “was to settle ‘the citizenship of free[d] [slaves].’”
Today, Native Americans are citizens of the United States. That is by Congressional statute, however, not a constitutional right. It varies somewhat by tribe, but most Native Americans achieved citizenship over 100 years ago through the Indian Citizenship Act of 1924. Most Native Americans are mixed race, which means they also have a constitutional right to citizenship through their parentage.
Native Americans aren’t the only group of people born on U.S. soil who have been denied U.S. citizenship. You can think of the history of federal Indian law as the first level in a building of legal scaffolding. That’s because our government took what it did to Native people and applied it to other peoples we colonized. After a brief war with Spain in 1898, the United States took over Puerto Rico, the Philippines, and Guam. U.S. lawmakers had to decide whether or not they would grant citizenship to the people they had colonized and now governed. Most did not want to. And so, they looked to Native Americans as a model. (In the Philippines, U.S. lawmakers even considered legally designating a portion of the population as “Indians”.)
The President at the time (with the help of leaders at the Bureau of Indian Affairs) came up with a new rule to classify people born in U.S. territories not as U.S. citizens, but as colonial subjects. This ran counter to over 100 years of precedent. Before they were states, places like Indiana and Oklahoma were U.S. territories, and all the white people born there, for generations, had been considered U.S. citizens. The Executive Branch made this new citizenship rule out of whole cloth. As one might expect, people in places like Puerto Rico challenged their exclusion from U.S. citizenship. Some of these cases from the early 1900s even made it to the Supreme Court.
And what did the Supreme Court do? Nothing. It stayed silent. It issued vague decisions that side-stepped whether or not a President had the authority to reinterpret the 14th Amendment.
As Sam Erman writes in Almost Citizens, the Court’s continued silence on the status of people in U.S. territories created “an invitation to resolve the matter politically and administratively” rather than through the courts. In other words, it helped create the political vacuum Trump is stepping into.
The Supreme Court has ruled in other cases–most notably United States v. Wong Kim Ark–that the children of immigrants do have a constitutional right to citizenship. That case, from 1898, upheld the citizenship claims of Wong Kim Ark who was born to two Chinese immigrants in San Francisco. When he was denied reentry to the United States after a trip to China under the Chinese Exclusion Act, the Supreme Court ruled he had a right to be here because he was a U.S. citizen.
Each year, tens of thousands of children become U.S. citizens not because their parents are, but because they are born here. (Most of these children live their entire lives in the U.S. Rates of “birth tourism”–women traveling to the U.S. just to give birth–are marginal.) As immigration started to make the U.S. less white, conservatives started attacking birthright citizenship. We can see this in the idea of “anchor babies” popularized by right-wingers in the 2000s and 2010s. Even Republican Senator Lindsay Graham proposed ending birthright citizenship as early as 2010. The most extreme backlash to immigration shows up in “great replacement theory,” a xenophobic conspiracy theory that white people are being systematically replaced by immigrants and people of color. (As an Indigenous person, the irony is not lost on me that this right wing theory describes what actually happened to Native Americans.)
The central question in Trump v. Barbara is whether the language of the 14th Amendment–and its long-held understanding–will hold, or if the Supreme Court will let Trump rewrite the rules. Legal scholars agree, of course, that the President does not have the power to rewrite the Constitution. The problem is that our democracy has a long tradition of giving the President a lot of power in certain arenas without the normal checks and balances of our Constitution. As legal scholar Maggie Blackhawk has pointed out, that power was granted so we could impose our will on those living at the margins of U.S. empire–first Indigenous people, then people living in U.S. territories, and now immigrants.
You can think of federal Indian law like a fault line in U.S. democracy. It is America’s achilles heal. It is the place where our government threw constitutional norms out the window, so that we could take what we wanted through raw power, not liberal democracy. After the office of the President of the United States accumulated all that unchecked power, we never took it away. And so now, when Trump wants to detain immigrant children without a warrant, separate families at the border, or deny citizenship to people born here, he is borrowing from a very old American playbook.
Now, the fault lines in our democracy are opening up.
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