President Donald Trump has said since his first administration that he wants to end birthright citizenship, a constitutional right for everyone born in the United States.
This week he issued an executive order that would eliminate it, upending more than a century of precedent. On Thursday, however, a federal judge temporarily blocked it after 22 states quickly mounted a legal challenge.
Over the years the right to citizenship has been won by various oppressed or marginalized groups after hard-fought legal battles. Here’s a look at how birthright citizenship has applied to some of those cases and how the Justice Department is using them today to defend Trump’s order.
Citizenship for Native Americans
Native Americans were given U.S. citizenship in 1924. The Justice Department has cited their status as a legal analogy to justify Trump’s executive order in court.
Arguing that “birth in the United States does not by itself entitle a person to citizenship, the person must also be ‘subject to the jurisdiction’ of the United States.” It raised a case from 1884 that found members of Indian tribes “are not ‘subject to the jurisdiction’ of the United States and are not constitutionally entitled to Citizenship,” the department said.
Many scholars take a dim view of the validity of that analogy.
It’s not a good or even new legal argument, said Gerald L. Neuman, a professor of international, foreign and comparative law at Harvard Law School. “But it’s got a bigger political movement behind it, and it’s embedded in a degree of openly expressed xenophobia and prejudice.”
Some say the legal analogy to the citizens of tribal nations plays directly into that.
“It’s not a valid comparison,” said Leo Chavez, a professor and author at the University of California, Irvine, who studies international migration. “It’s using the heat of race to make a political argument rather than a legal argument.”
“They’re digging into old, archaic Indian law cases, finding the most racist points they can in order to win,” said Matthew Fletcher, a professor of law at the University of Michigan and a member of the Grand Traverse Band of Ottawa and Chippewa Indians. “There’s nothing sacred in the Department of Justice. They’ll do anything they can to win.”
For Spanish and Mexican descendants
In addition to his order on birthright citizenship, Trump has directed immigration arrests to be expanded to sensitive locations such as schools. That holds special implications in the border state of New Mexico, where U.S. citizenship was extended in 1848 to residents of Mexican and Spanish descent under the Treaty of Guadalupe Hidalgo, which ended the U.S.-Mexico war.
The state’s 1912 Constitution includes a guarantee saying “children of Spanish descent in the state of New Mexico shall never be denied the right and privilege of admission and attendance at public schools … and they shall never be classed in separate schools, but shall forever enjoy perfect equality with other children.”
State Attorney General Raúl Torrez has highlighted that provision in guidance to K-12 schools about how to respond to possible surveillance, warrants and subpoenas by immigration authorities. The guidance notes that children cannot be denied access to public education based on immigration status, citing U.S. Supreme Court precedent.
For enslaved people
The issue of whether enslaved people were eligible for U.S. citizenship came to the forefront in 1857 when the Supreme Court ruled 7-2 against Dred Scott, a slave, and his bid to sue for freedom. In their decision, the court said Black people were not entitled to citizenship and even claimed they were inferior to white people.
The Dred Scott decision contributed to the start of the Civil War. With the North’s victory over the South, slavery became outlawed. Among the constitutional protections put in place for formerly enslaved people, Congress ratified the 14th Amendment in 1868, guaranteeing citizenship for all, including Black people.
“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,” the 14th Amendment says. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
That effectively nullified the Dred Scott ruling.
For children of immigrants
All children born in the U.S. to immigrants have the right to citizenship thanks to a Chinese man whose landmark 1898 case went all the way to the U.S. Supreme Court.
Wong Kim Ark was born in San Francisco to parents from China. But when he tried to return to the U.S. after a visit to that country, the government denied him reentry under the 1882 Chinese Exclusion Act, which restricted immigration from China and barred Chinese immigrants from ever becoming U.S. citizens.
Wong argued that he was a citizen because he was born in the U.S. In siding with him, the Supreme Court made explicit that the citizenship clause of the 14th Amendment automatically confers citizenship to all U.S.-born people regardless of their parents’ status.
In its 6-2 decision, the court said that to deny Wong citizenship because of his parentage would be “to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.”
The ruling was a huge relief for the Chinese community as there was evidence that others were being denied entry, said Bill Ong Hing, a professor at the University of San Francisco School of Law. They carried birth certificates and applied for passports proving they were born in the U.S.
“All the Supreme Court concentrated on was, ‘Are you subject to the jurisdiction to the United States when you’re born here?’” Hing said. “And the answer is yes.”
Hing was among Chinese American leaders who criticized Trump’s order during a news conference Friday at the Chinese Consolidated Benevolent Association in San Francisco’s Chinatown. The association helped Wong with his legal case.
Annie Lee, policy director of Chinese for Affirmative Action, said that Trump’s executive order affects all immigrants and children of immigrants, regardless of legal status.
“When a racist man screams at me to go back to my country, he does not know or care if I am a U.S. citizen, if I am here on a work visa or if I am undocumented,” she said. “He looks at me and feels like I do not belong here. So make no mistake that the white supremacy which animates this illegal executive order impacts us all.”
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Associated Press writer Morgan Lee in Santa Fe, New Mexico, contributed.
