Still Fighting about Birthright Citizenship

by Carol Nackenoff & Julie Novkov, authors of American by Birth; Wong Kim Ark and the Battle for Citizenship

What is the importance of the Tenth Circuit’s June 15, 2021 decision in Fitisemanu v. United States, that American Samoans, who are residents of an “unincorporated territory” of the US, are not entitled to US citizenship? Is Fitisemanu the opening salvo in a broader attempt to get federal courts to revisit the issue of birthright citizenship that the Supreme Court appeared to settle in United States v. Wong Kim Ark (1898), and about which we have recently written in the University Press of Kansas’s (June 2021) American by Birth: Wong Kim Ark and the Battle for Citizenship?

Judge Lucero’s majority opinion in Fitisemanu (20-4017) held that the issue raised by the American Samoan individuals seeking citizenship was not resolved by the citizenship clause of the Fourteenth Amendment, which dictates that “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 Circuit Court’s majority opinion reversed a 2019 decision by the District Court of Utah that had been stayed pending the appeal. Judge Lucero held that Congress had the authority to determine the status of individuals born in territories acquired by the United States at the turn of the twentieth century, as it had when it granted most Hawaiians (not ethnic Chinese) US citizenship, or Puerto Ricans citizenship (and later, birthright citizenship). Congress had considered granting American Samoans US citizenship in the 1930s but had declined to do so—the measure to grant them citizenship passed the Senate but failed in the House. These Pacific Islanders are considered “non-citizen nationals,” and as such, they can live and work, but not vote, in the United States.

The lower court’s ruling, which granted birthright citizenship to individuals born in US territories, was based upon the Fourteenth Amendment. The District Court opinion identified Wong Kim Ark as the binding precedent. The opinion accepted the plaintiff’s argument that they were born “within” the United States and thus entitled to citizenship; the Tenth Circuit’s position was that the Constitution (and the Fourteenth Amendment) did not necessarily “follow the flag,” relying on the Insular Cases (1901). The University Press of Kansas has published an excellent treatment of the Supreme Court’s decisions surrounding rights of residents of territories acquired by the US in the Spanish-American War in Bartholomew H. Sparrow’s The Insular Cases and the Emergence of American Empire.

While the case itself deals with a small number of individuals in unusual circumstances, its implications are broader. Recent efforts by the Trump administration and immigration restriction advocates to limit birthright citizenship, especially for children born in the United States to undocumented residents, loom in the background. Through administrative action, the Trump administration tried to restrict “birth tourism,” the organized and lucrative practice of arranging visits that included shopping and trips to Disneyland for pregnant women so that they could give birth in the United States, conferring US citizenship on their newborns. Building a wall served as a symbol of the resolve to deter would-be US entrants from crossing the border, and the Trump administration’s decision to separate children and parents who did manage to cross the border was designed as another deterrent. But the executive branch is limited in what it can do to end birthright citizenship—for now.

Congress, as the Circuit Court majority in Fitisemanu pointed out, also has some authority over citizenship, especially for those born outside the territorial boundaries of the United States to non-citizen parents. Congress may decide who can naturalize and exercised this authority to deny this opportunity to the Chinese in America from 1882 until 1943. Some have argued that Congress should thus be able to give or withhold its consent to the incorporation of a group as citizens (see Elk v. Wilkins, a 1884 case involving Native Americans that states “no one can become a citizen of a nation without its consent,” the General Allotment Act of 1887, and the Indian Citizenship Act of 1924). This position has been staked out by Peter Schuck and Rogers Smith in their 1985 book, Citizenship without Consent, and a subsequent article, where they claim that since illegal aliens were not a recognizable category at the time the Fourteenth Amendment was adopted, and since we cannot completely recover the intent of the framers of the Constitution or of the Fourteenth Amendment on this matter, the decision should be left to the people’s elected representatives in Congress. They reason that, in a liberal polity, the people ought to be allowed to give or withhold consent to membership, and Congress is the appropriate institution to make these determinations.

Drawing an analogy between the processes by which Native Americans were made citizens (including the nation’s consent statement in Elk v. Wilkins) and the situation for those born in the United States to non-citizen parents is faulty for a couple of reasons, however. First, Native Americans born into a tribe were, since the time of Chief Justice John Marshall, considered as members of distinct political communities and members of domestic dependent nations. In the reasoning of nineteenth-century jurists, they were in a state of pupilage, and it required action by the United States to change that status. The lands on which tribal Indians lived were not simply part of the United States and moving to an individual homestead away from the tribe did not erase tribal membership (although the General Allotment Act, passed in part to remedy that situation, did envision citizenship for those Native Americans who took up individual land allotments and lived and worked on them). These points surely could not be made with regard to the sons and daughters of English, Swedish, or even Irish, Italian, and other immigrants who came to the United States in the nineteenth century and whose offspring, born on US soil, had long been considered birthright citizens, whether or not the parents naturalized. Congress did not find it necessary to make the American-born sons and daughters of Caucasian or white immigrants citizens by birth (although an act of Congress at one time denationalized white women who married foreign men, rendering some of them stateless). English common law—recognized in early US court cases—and precedent made them birthright citizens.

Second, it is important to note that Justice Gray, who wrote the majority opinion in Elk v. Wilkins that granted Congress the power to determine Native American citizenship, also wrote the majority opinion in Wong Kim Ark. As Gray, an acknowledged expert on the law of sovereignty explained, the fundamental principle of the common law with regard to English nationality was “birth within the allegiance . . . of the King.” He noted that this principle had been followed almost without exception by courts when dealing with controversies in the colonies and the United States, even before passage of the Fourteenth Amendment. And while all conceded that the purpose of the Fourteenth Amendment was to extend citizenship to formerly enslaved Black people and their heirs, Justice Gray’s opinion pointed out that the language was “general, not to say universal, restricted by place and jurisdiction and not by color or race.” The purpose of the text of the citizenship clause, he argued, was to carve out some very narrow exceptions to the general principle of extending jus soli citizenship (citizenship derived from birthplace)—exceptions chiefly relating to children of foreign ambassadors, children of military enemies, and children born at sea. Others born here were subject to the jurisdiction of the United States in the ordinary sense of being under obligation to obey US laws. And in the years after the decision, despite increasing concern about the new legal category of illegal immigration, Congress never passed any laws purporting to limit citizenship only to the descendants of legal US residents.

The federal courts have been key players in battles over citizenship. Following United States v. Wong Kim Ark, the Supreme Court upheld the principle of birthright citizenship twice again by the mid-twentieth century. Would a now-conservative Supreme Court overturn this decision? We think it highly unlikely. It is possible, however, that the current Court would consider an argument, if a case were presented, that Wong Kim Ark, whose parents were living and working in the US with permission, did not raise or cover the case of those whose parents were living here illegally.

In American by Birth, we examine the history of birthright citizenship in the United States. The book explains how the Fourteenth Amendment was read to codify that history, extending the principle of citizenship by birth in a nation’s territory even to the American-born sons and daughters of Chinese immigrants who were so vilified that the parents were barred from naturalization in the 1882 Chinese Exclusion Act. After being rebuffed in the federal court system, nativists and immigration restrictionists turned to other routes to keep undesirables from entry and subsequent citizenship. The Asiatic Barred Zones Act (1917) and the quota system adopted in immigration restriction measures in 1921 and 1924 were noteworthy; during the Depression, efforts also included ‘encouraging’ the out-migration of Mexicans (a not insignificant portion of whom were born here) who were seen as drains on public resources. The rigid application of the quota system was also an important factor behind US inaction in the face of the humanitarian refugee crisis during the Holocaust. The desire to keep America white strongly influenced how territorial acquisitions were treated. With a noteworthy increase in immigration from Mexico, Central America, and the Caribbean beginning around the 1970s, interest in policing the Southern border and in revisiting birthright citizenship increased. American by Birth brings the examination of birthright citizenship up through efforts during the Trump administration to change current law and practice—and the reading of the Fourteenth Amendment embraced in Wong Kim Ark. The United States is not alone among nations with generous citizenship provision in experiencing backlash, and in the final chapter, we consider the different methods by which American opponents of birthright citizenship are trying to effect change now.

Carol Nackenoff is the Richter Professor of Political Science at Swarthmore College

Julie Novkov is interim dean of Rockefeller College of Public Affairs & Policy and professor of political science and women’s, gender, and sexuality studies at the University at Albany