In February of 2025, President Donald Trump signed Executive Order 14160 that sought to deny automatic U.S. citizenship to children born in the United States to certain noncitizen parents. Children born after the effective date, Feb 19, 2025, to a mother unlawfully or temporarily present, and father who were neither citizens nor lawful permanent residents, would be the targets of this order and denied birthright citizenship, which is provided for in the 14th Amendment to the Constitution.
Lawsuits were brought because of the executive order, and each of the lower courts that has reviewed the claims of those asserting their right to birthright citizenship has upheld the provisions of the 14th Amendment that grant birthright citizenship to persons born in the United States.
Today the case was argued before the United States Supreme Court, with President Trump in attendance. This is the first time in modern history that sitting president has attended an oral argument before the nation’s highest court.
In order to understand the argument, I am re-publishing a piece from earlier this year that explains birthright citizenship.
Dred Scott, Wong Kim Ark and Birthright Citizenship
Dred Scott, an enslaved person born in Virgina around 1799, and Wong Kim Ark, the son of Chinese immigrant parents, born in San Francisco in 1873, are an unlikely pair that have something in common. Both had cases heard before the United States Supreme Court. The decisions in their respective cases helped to mold the definition of citizenship in America.
In 1857, Scott lost his bid for freedom in the landmark case of Dred Scott vs. Sandford. The Court ruled not only that Scott was still a slave, even though he had been taken to and lived in free territory, the Court gratuitously added that that persons of African descent were not citizens. Wong Kim Ark won his claim to citizenship by virtue of Section I of the 14thAmendment, which was passed to overrule the Dred Scott decision.
And let me remind you: to change the constitution, which has been done 27 times in the nation’s history, there must be a 2/3 vote of both the House and the Senate. Then the amendment must be approved by ¾ of the states, which would currently be 38 of 50. Clearly, a constitutional amendment is not something that is easily passed. It’s the will of the people.
The decision in Wong’s landmark case, United States v. Wong Kim Ark, defined birthright citizenship and has been the law of the land for 127 years. But with the attacks made by the current president and the MAGA movement on the right to citizenship for persons born in the U.S., the question of how long the legal concept of birthright citizenship will remain the law of the land is up for grabs and up to the United States Supreme Court.
For those who do not understand the concept of birthright citizenship, here is what it means. The original U.S. Constitution did not have a definition of citizenship. But legal scholars argue that it was generally accepted from the earliest days of the republic that anyone born in the United States was automatically a citizen, if you were white. There were questions about Blacks and Native Americans.
Congress realized that once the slaves were freed by the 13thAmendment, and the Supreme Court had ruled that persons of African descent were not citizens, there had to be a constitutional amendment to grant citizenship to former slaves and free blacks and define citizenship. The resulting language in the 14th Amendment reads as follows in Section 1: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.
In 1889, a teenage Wong Kim Ark traveled to China with his parents who had immigrated to the United States some years earlier. After living in the United States, operating a business, establishing a domicile and paying taxes, they decided to repatriate to China, and Wong went with them.
A year into his stay in China with his parents, Wong decided to return to the U.S., the land of his birth. Upon arrival in San Francisco, he was readmitted on the grounds that he was a native-born citizen of the United States. But an unnamed immigration official made a note on his file questioning the veracity of his claim of birth in the United States.
When Wong returned to China a second time in 1894 and again sought reentry in 1895 into the United States, the San Francisco Collector of Customs denied his reentry. The Collector of Customs argued that because his parents were Chinese and subjects of the Emperor of China, Wong was not a citizen even though he had proof of his birth in San Francisco. Wong was confined for five months on steamships off the coast of San Francisco while his case was being tried.
The case eventually made its way to the United States Supreme Court where the court considered the single question of whether a child born in the United States to parents of Chinese descent, who, at the time of his birth, had a permanent domicile and residence in the United States; were carrying on a business; were not employed in any diplomatic or official capacity under the Emperor of China, was a citizen of the United States. In a 6-2 decision, issued in 1898, the Supreme Court held that Wong had acquired U.S. citizenship by birth.
This decision has been the law of the land since then. To deny birthright citizenship to those born in the United States to immigrant parents, the Supreme Court would have to overturn Wong’s case and, as most legal scholars argue, adopt a constitutional amendment amending the wording of the 14th Amendment.
If the President’s Executive Order issued June 27, 2025, is valid, lots of people born in the U.S. will be in limbo as to their status as a citizen or non-citizen. And I’m not sure where they are supposed to go if they have no contact with the country of their parent’s birth. Hundreds of thousands of people will literally be without a country.
Wong Kim Ark and Dred Scott are minor figures in American history. But in American jurisprudence their landmark cases shaped what citizenship means today.
There are lots of debates about birthright citizenship. You need to understand that it’s not some fly-by-night concept that Trump and his minions assert has no basis in American jurisprudence. It’s been the law of the land for over 127 years. It was made the law of the land by a Supreme Court Decision and a constitutional amendment. So, the way I see it, if the constitution ain’t broke, don’t fix it.
C. Ellen Connally is a retired judge of the Cleveland Municipal Court. From 2010 to 2014 she served as the President of the Cuyahoga County Council. An avid reader and student of American history, she is a former member of the Board of the Ohio History Connection, and past president of the Cleveland Civil War Round Table, and is currently vice president of the Cuyahoga County Soldiers and Sailors Monument Commission. She holds degrees from BGSU, CSU and is all but dissertation for a PhD from the University of Akron.