Rep. Steve King (IA-4) introduced H.R. 140, the Birthright Citizenship Act of 2017 on January 3, 2017. He has attracted 17 co-sponsors, so far. This bill, if passed, and enacted would only allow children born in the United States a citizen if they are born to at least one parent who is a citizen or national of the United States, a lawful permanent resident, or alien performing active service in the armed force. While President Donald Trump has talked about ending birthright citizenship, it is by no guarantee that this would pass the House much less make it through the Senate. Ultimately, the legislative filibuster is likely to be nuked, but I don’t believe this would be the legislation that causes the filibuster to die.
The discussion of the constitutionality of revoking birthright citizenship is largely predicated on the Supreme Court case of Wong Kim Ark v. United States.
Wong Kim Ark
A lot of this section comes from Charting the Future by John Semonche. Wong Kim Ark was born in 1873 in San Francisco to Chinese parents. The family continued to live there until 1890. At that point, he and his parents left for China. Wong Kim Ark returned to the United States in 1890 and was admitted on the claim that he was a natural born citizen of the United States. He went to and back from China in 1891 and was barred from entry upon his return.
The Chinese Exclusion Act was signed into law by President Chester Arthur in May of 1882. This was the first major piece of immigration legislation that was passed and signed to halt immigration. Prior to this law, there were not any major immigration laws. Some on the right even admit that there was not any immigration laws prior to this legislation. The law would effectively bar immigration from China for 10 years and prevent Chinese from being citizen. It was extended through the Geary Act of 1892 for another 10 years and was made permanent in 1902.
Under the Chinese Exclusion Act, Wong Kim Ark was barred from entry. This case eventually found its way to the Supreme Court. Justice Horace Gray became the justice to save the case for Wong Kim Ark. Justice Gray began to look at the claim of citizenship against the wording of the first section of the Fourteenth Amendment. Then he began to look at what the rule of citizenship was prior to the enactment of the Fourteenth Amendment. He saw in the Constitution the phrase natural born citizen without any sort of definition of what it actually meant. Justice Gray began to look for the examples of common law.
After a while, he was able to locate a principle where the birth within the jurisdiction of the king conferred nationality, with only children born to foreign diplomats and to enemy aliens being excepted. Working through that, Justice Gray stated that this rule was in force in all of the British colonies, he argued that at the time of the Declaration of Independence and the ratification of the Constitution, that this principle was continuing at that point.
Justice Gray did face a dilemma, though. The purpose of the Amendment, according to some at the time, was that it was largely focused on race and granting citizenship to freed slaves. This is, still, part of the argument today. Justice Gray noted that all members of the Supreme Court in 1873, clearly recognized that the Fourteenth Amendment related to place and jurisdiction of birth and not to race or color. He went further citing the opinions of Attorneys General since the time of the ratification of the Fourteenth Amendment that consistently find that birth within the country confers citizenship.
Justice Gray still had to deal with the pesky issue of being able to stop natualization based on race, as the Supreme Court found that to be a constitutional act of Congress, and being to stop citizenship. Justice Gray wrote in his opinion that Congress could confer citizenship but not take it away. If they were allowed to take citizenship away, he wrote, “it would be i nthe power of Congress, at any time, by striking negros out of the naturalization laws, and limiting those laws, as they were formerly limited, to white persons only, to defeat the main purpose of the Constitutional Amendment.”