The ugly history behind Trump’s birthright citizenship case in the Supreme Court |
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The ugly history behind Trump’s birthright citizenship case in the Supreme Court
The peculiar legal argument behind Trump’s attack on citizenship was invented by 19th-century anti-Chinese racists.
Three days after President Donald Trump began his second term, Judge John Coughenour, a Reagan appointee, became the first judge to block Trump’s attempt to strip citizenship from many Americans who were born in the United States. “I’ve been on the bench for over four decades,” Coughenour said at the time, adding that he “can’t remember another case where the question presented is as clear as this one is.”
Coughenour was the first of many judges to strike down a Trump executive order, which purports to strip citizenship from the children of undocumented immigrants and immigrants who are lawfully present in the United States, but only temporarily.
Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.
The fate of Trump’s anti-citizenship order is now before the Supreme Court, in a case known as Trump v. Barbara, and the legal case against it is about as airtight as these cases get. The Constitution’s 14th Amendment says that “all persons” born in the United States are citizens, with one narrow exception that does not apply in Barbara. And the Supreme Court settled this question nearly 130 years ago in United States v. Wong Kim Ark (1898).
Trump’s legal arguments against birthright citizenship are exceedingly weak.
His administration’s chief argument was first developed in the 19th century by white supremacists who wanted to deny citizenship to Chinese Americans.
Yet even in an era of open white supremacy, 19th-century courts did not accept the argument as grounds for denying citizenship to children of Chinese immigrants.
Yet, while Trump’s legal arguments in Barbara are exceptionally weak, they aren’t exactly new. Indeed, they are quite old. As law professor Sam Erman and historian Nathan Perl-Rosenthal explain in a recent paper, a white supremacist lawyer named Alexander Porter Morse — the same lawyer who would go on to argue the pro-segregationist side in Plessy v. Ferguson (1896) — masterminded a failed effort to weaken the 14th Amendment in the late 19th century, largely to deny US citizenship to Americans of Chinese descent.
The Supreme Court put that effort to rest in Wong Kim Ark. But Trump’s unusual arguments in the Barbara case closely mirror an early version of the anti-Chinese citizenship argument devised by Morse and other similarly minded lawyers. Trump’s brief in Barbara twice cites an 1881 book by Morse, which made this early case against citizenship for Chinese Americans, as well as several other writings by advocates and scholars who shared Morse’s goals.
Morse argued in 1881 that the 14th Amendment, which provides that “all persons born or naturalized in the United States, and subject to the jurisdiction........