The birthright case forces the U.S. Supreme Court to address the threat of loss of U.S. citizenship for Americans

When the U.S. Supreme Court heard arguments last week on the constitutionality of President Donald Trump’s order abolishing birthright rights, Justice Sonia Sotomayor seemed skeptical.

The written order only applies to babies born in the future, and the Trump administration has asked the court to exclude current citizens from any decision. Still, the court’s senior liberal justice wasn’t so sure it would work out that way.

“But the logic of your position, if adopted, is that this president or the next president or Congress or someone else could decide that it should not be prospective,” Sotomayor told U.S. Attorney General D. John Sauer, the government’s top lawyer in court. “According to your theory, there would be no restriction.”

The case of birthright citizenship, Trump vs. Barbarais forcing the Supreme Court to grapple with the prospect of the United States becoming a very different kind of nation — one in which Americans risk losing their citizenship and babies could be born virtually stateless. It is also a nation that would be more similar to its past, when immense swaths of the population were excluded from the coveted title of American.

A majority of the court, including several conservative justices, didn’t seem convinced by the Trump administration’s argument that the 14th Amendment, ratified during Reconstruction, does not guarantee citizenship to almost everyone born on American soil. The court could potentially overturn the order, which never took effect, later this year.

But whatever the decision, the case has sparked a heated debate about who is an American — and the implications of that definition — that is playing out in the courtroom, in court documents and on the steps of the Supreme Court.

“Birthright citizenship is not just a legal principle,” Norman Wong said at a demonstration outside the Supreme Court last week.

Wong is a grandson of Wong Kim Ark, who was born in San Francisco but was denied entry into the country after visiting China more than a century ago. Officials argued at the time that he was not a citizen, but he took his case to the Supreme Court and in an 1898 decision, the justices confirmed that citizenship was guaranteed to virtually all children born in the United States.

“It’s a statement of who we are as a nation,” Wong said of birthright citizenship. “It affirms that America is not defined by bloodlines or exclusion, but by shared values ​​and equal rights.”

A different view

Trump and some Republicans view birthright citizenship differently.

The 14th Amendment states: “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 Trump administration, which has pushed for mass deportations, maintains that children whose parents were born in the country illegally or temporarily are not subject to the country’s jurisdiction. Most historians and legal scholars reject this position.

The executive order, signed on the first day of Trump’s inauguration, calls citizenship a privilege – not a right – that is a “priceless and profound gift.”

During a recent event in the Oval Office, Trump told reporters that birthright citizenship was intended to extend citizenship to formerly enslaved people and their children after the Civil War.

“The reason was that it had to do with the babies of slaves,” Trump said.

Some Republicans argue that the United States is a nation bound together by a particular cultural heritage – sometimes in language that honors European settlers – as opposed to a people brought together by the idea of ​​America or a set of shared principles. Like Trump, they advocate a restrictive approach to immigration.

At a conference last fall on national conservatism—as that perspective is sometimes called—U.S. Sen. Eric Schmitt, a Missouri Republican, said, called America “A way of life that is ours and ours alone, and if we disappear, America will cease to exist too.”

Schmitt, along with Republican Rep. Chip Roy of Texas, filed a brief with the Supreme Court in January supporting the order.

“The citizenship clause applies only to those who have been permitted to adopt our country as their permanent and lawful residence,” he said briefly says.

Revoking citizenship?

Last week at the Supreme Court, Sotomayor pressed Sauer on a 1923 Supreme Court decision, U.S. v. Thind. In this case, the judges ruled that a Sikh man from India, Bhagat Singh Thind, was not entitled to citizenship.

Thind argued that he was a “free white man,” a group of people who were allowed to naturalize under federal law at the time. The court found that Thind did not meet this definition under the common understanding of the term. Following the decision, the federal government revoked the citizenship of dozens of South Asian Americans.

Sauer reiterated that the Trump administration had only asked for “anticipatory relief,” prompting Sotomayor to interject.

“No, what I’m telling you is that you’re asking for relief right now,” Sotomayor said. “I wonder if the logic of your theory would allow for what happened after the court decision in Thind, namely that the government could move to denaturalize people who were born here from illegal residents.”

Sauer responded “no” before concluding that “we are not seeking retroactive relief.”

The exchange highlighted the scenario many immigrant advocates fear if the Supreme Court strips away birthright citizenship.

In a court brief, the Fred T. Korematsu Center for Law and Equality at the University of California, Irvine School of Law, which uses litigation to promote racial justice, and more than 70 other nonprofit groups warned that upholding the order would trigger efforts to strip the citizenship of countless Americans.

Although the order is only described as future-oriented, the groups say there is a risk of much deeper damage. To uphold Trump’s order, the Supreme Court would have to conclude that being born on U.S. soil is not a guarantee of citizenship. Once this happens, they argue, “it is all too easy to imagine the government retroactively revoking citizenship.”

“In this scenario, without further congressional intervention, the affected individuals would become undocumented and many or most would become stateless,” the said briefly says.

Cecillia Wang, national legal director of the American Civil Liberties Union, argued against the order before the Supreme Court, saying the 14th Amendment created a “firm, clear rule” on citizenship that helped the nation grow and prosper.

She warned that the order would render swathes of American law meaningless.

“Thousands of American babies will immediately lose their citizenship,” Wang said. “And if the government’s theory is to be believed, the citizenship of millions of Americans – past, present and future – could be in question.”

Ariana Figueroa contributed to this report.