A 129-Year-Old San Francisco Lawsuit Could Stop Trump From Ending Birthright Citizenship

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s Donald Trump prepares to take office for a second term, his team is already working on an executive order to end birthright citizenship for future children of undocumented immigrants.

“Under Biden’s current policies, even though these millions of illegal border crossers have entered the country unlawfully, all of their future children will become automatic U.S. citizens,” he said in a video published on his social media accounts in 2023. In the same video, he vowed to sign on the first day of his presidency an executive order “making clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal aliens will not receive automatic U.S. citizenship.”

Executive orders allow presidents to command federal agencies to carry out their policies — without having to wait for Congress to pass new legislation.

However, a 129-year-old legal case of a San Francisco man who took the federal government to court over his own birthright citizenship status may make it much harder for Trump to fulfill his promise.

In 1898, Bay Area-born Wong Kim Ark successfully defended his claim to being a U.S. citizen in the Supreme Court after officials claimed that his parents being Chinese nationals at the time of his birth disqualified him from being an American citizen. For the Bay Area’s Chinese community, who quickly mobilized to defend Wong, the case represented a major victory at a time when anti-Chinese sentiment and xenophobia were rampant across the country.

To this day, legal experts say the case remains the strongest shield against any Trump executive order that tries to undermine birthright citizenship.

Birthright citizenship and the Constitution

Birthright citizenship for all children born in the U.S. is enshrined in the Fourteenth Amendment of the Constitution. It is not the result of a Biden administration policy, as Trump claims.

“The Constitution is our foundational document. All three branches of government have to serve the Constitution,” said Ming H. Chen, professor at UC Law San Francisco and faculty-director of the school’s Center for Race, Immigration, Citizenship, and Equality. What’s more, she said, “the president can’t go beyond the bounds of the Constitution in issuing an executive order.”

Enacted in 1868, the Fourteenth Amendment states in its first clause that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

This amendment — which enshrined rights like birthright citizenship, due process and equal protection of the laws into the Constitution — was Congress’s response to the laws being passed by many Southern states after the Civil War that severely restricted the rights of formerly enslaved Black Americans and their children.

At the time, most countries based citizenship on bloodline, Chen said.

“The United States from its very beginning was struggling to define its own … national identity,” she said. “Do they want it to be based on a conception of citizenship similar to what we’ve seen in Europe and a lot of the world, which bases citizenship on parentage?”

Another option was having citizenship based on where you were born — a more egalitarian idea, Chen said. “When you look at the 14th Amendment, I think it tells us that the United States really tried to enact a promise of equality.”

How Chinatown mobilized for Wong Kim Ark

In the 1870s, San Francisco was transitioning from a Gold Rush boomtown to an established American metropolis — largely thanks to the labor of tens of thousands of immigrant workers from all over the world. Two of these immigrants were Wee Lee and her husband Wong Si Ping, who came from China and gave birth to a son, Wong Kim Ark, in their home located above their shop on Sacramento Street in the heart of San Francisco’s Chinatown.

As an adult, Wong traveled back and forth between California and his family’s village in southern China. On one of these trips to China, he met and married his wife, who stayed behind with their children, while Wong returned to California, where he worked as a cook.

But on his return to the U.S. from a trip to China in 1896, Wong was detained by customs officials in San Francisco, who blocked him from reentering the U.S. and insisted that he was not an American citizen but rather a Chinese national — a group who at the time faced intense immigration restrictions thanks to the Chinese Exclusion Act of 1882. Officials told Wong that his citizenship depended not on where he was born but rather on the nationality of his parents.

Wong was in a complicated situation, said David Lei, a community historian and board member of the San Francisco-based Chinese Historical Society of America.

“He was a cook. He was in his early 20s. No money — he was really a nobody,” Lei said.

Help for Wong came in the form of the Chinese Consolidated Benevolent Association (CCBA), also known as the Chinese Six Companies, an organization established 175 years ago in Chinatown that pooled the resources of many Chinese families and businesses to buy land, develop property and even help finance a hospital.

“They were the GoFundMe for the Chinese community, and every time there was a lawsuit, they would raise the money to hire the best lawyers for their community,” he said, enabling CCBA to “fight against racist laws.”

From the 1880s onward, the Chinese immigrant community throughout the U.S. filed over 10,000 lawsuits challenging anti-Chinese laws.

“The Chinese after the Chinese Exclusion Act weren’t silent victims — they pushed back,” Lei said.

Wong goes to the Supreme Court

Unable to step on U.S. soil., Wong lived on ships in the waters of the San Francisco Bay. Meanwhile, in Chinatown, the CCBA hired a team of lawyers to represent Wong, who argued that he was an American citizen based on the fact that he was born in the U.S. and not on the nationality of his parents.

When United States v. Wong Kim Ark reached the Supreme Court, it represented a “pivotal moment where [SCOTUS] took up — for the very first time — this question of how to interpret the Fourteenth Amendment’s citizenship clause for everybody,” said Leti Volpp, a law professor at UC Berkeley.

“And not just for people whose parents were illegally imported as enslaved people from Africa or were born to persons who were Black in the U.S,” she said.

Volpp said that when the Fourteenth Amendment was enacted, there were three exceptions to the citizenship clause:

• If, at the time of your birth, your parents are in the U.S. as high-ranking foreign diplomats who are “not considered subject to the jurisdiction of the United States.”
• If, at the time of your birth, your parents are in the U.S. as an invading army.
• Children who were born “into what was at that time considered a quasi-sovereign native tribal authority” — an exception that was later eliminated when Congress passed the Indian Citizenship Act of 1924, which granted citizenship to all Native people born in the U.S.

In its legal argument, the U.S. government insisted that at the time of Wong’s birth, his parents — despite being merchants and not diplomats — were subjects to the Emperor of China and not the jurisdiction of the U.S. government. However, after a two-year legal battle, the Supreme Court ruled in favor of Wong Kim Ark in 1898, affirming his status as an American citizen, along with all the rights that came with it.

“The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States,” wrote Justice Horace Gray in the majority opinion. He noted that if citizenship was denied to the children of parents that were citizens of other countries, that would in turn “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.”

Wong and the 2024 Election

So, how does an 1898 Supreme Court ruling influence what President-elect Donald Trump can do when he takes office in 2025?

As he’s promised, Trump could issue an executive order that says the future children of undocumented immigrants will no longer receive U.S. citizenship at birth. But it would “be subject to immediate litigation,” UC Berkeley’s Volpp said.

“We have a legal system which is based on precedent, which means that there’s this accretion of cases from the past that build up to develop a particular vision of how to interpret the law,” she said.

United States v. Wong Kim Ark established a legal interpretation of the Fourteenth Amendment that the Supreme Court has never questioned — and other rulings in major citizenship cases since then have also relied on the Wong Kim Ark case.

However, some legal scholars now question whether the U.S. v. Wong Kim Ark protects the children of undocumented immigrants. In an interview published earlier this month in Reason magazine, federal judge James C. Ho — who previously defended birthright citizenship for decades — argued that states have the power to consider undocumented immigrants as “an invasion.”

“Birthright citizenship obviously doesn’t apply in case of war or invasion,” said Ho, a potential Trump nominee to SCOTUS. “No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship.”

Volpp, however, doesn’t buy this reasoning.

“I am skeptical that courts would agree that immigrants can somehow be characterized as an ‘invading army,’” she told KQED.

Any non-diplomat immigrant in the U.S. “is subject to the jurisdiction of the United States, and if they commit a crime, they are not immune from prosecution,” Volpp said. “The idea that hostile armies are not subject to U.S. jurisdiction and therefore their children would not be birthright citizens comes from old English law which held that those born in hostile territory were not English subjects because English sovereign authority could not operate there.”

But if not through an executive order, could Trump and his allies still weaken birthright citizenship through a Supreme Court decision — similar to the victory they achieved in 2022 when the court overturned Roe v. Wade, ruling that a national right to abortion was not “deeply rooted in this Nation’s history or tradition”?

That’s unlikely, Volpp said. “In the case of Wong Kim Ark (and unlike with Roe), there has been no chipping away at precedent through other decisions.”

“If the court wants to look backwards to history, it is very clear that the original intent of the framers was to guarantee birthright citizenship to children of immigrants,” she said.

To permanently alter birthright citizenship, Trump would need to change the actual text of the Constitution, UC Law San Francisco’s Chen said.

“In order to go against a constitutional amendment and a Supreme Court case that has enshrined this interpretation of birthright citizenship as being very broad, you would need [another] constitutional amendment,” she said. And any amendment would require the votes of two-thirds of both the Senate and the House of Representatives, along with the approval of three-fourths of state governments — with at least 37 out of the 50 states voting in favor of the change.

With the results of the 2024 election, Republicans will have complete control over 27 state legislatures, still far below what they need. For their part, Democrats have made it clear that they are not interested in limiting birthright citizenship.

‘So many different corners of America’

After winning his case in the Supreme Court, Wong Kim Ark continued to work and travel back and forth between China and San Francisco. His descendants now live all over California.

Meanwhile, the CCBA — which celebrated its 175th birthday earlier this year — continued to support other Chinese American families as they took on discriminatory policies at every level of government throughout the 19th and 20th centuries, alongside other organizations.

“The Chinese community took on [these legal fights] deliberately, as a community, as a strategy, winning all these rights for all Americans,” said Lei, from the Chinese Historical Society of America, pointing to 1974’s Lau v. Nichols, a class action suit brought by Chinese students in the San Francisco Unified School District who did not speak English that helped establish bilingual education in schools across the country.

For Chen, the Wong Kim Ark case — which hinged on an amendment first intended to preserve citizenship for the descendants of formerly-enslaved Black people — is symbolic of how legal battles for equality in the U.S. have been furthered by various communities for different groups.

“A lot of the modern debate is largely about DACA recipients, DREAMers, people who came to the United States from Mexico and other parts of Latin America,” she said. “I think you can really see that this issue touches so many different corners of America.”

“That’s where birthright citizenship is so important,” she said. “And trying to challenge it is so dangerous because it’s not just about trying to find equality in one lifetime. It’s about trying to cut off the possibility forever for a community.”