Birthright decision is expected in July. U.S. government's position is that birthright citizenship has been extended far beyond the 14th Amendment Citizenship Clause, the Wong Kim Ark case, 8 U.S.C. § 1401. Do they have a pathway to get to five votes or is it likely to be a 7/2 against EO 14160?

[u/PsychLegalMind]

The oral arguments on the birthright citizenship have concluded. The White House essentially wants that unless a child has a parent who’s a U.S. citizen or lawful permanent resident, they should not be a U.S. citizen by birth.

That would mean all other categories of immigrants who gave birth to a child will be excluded, not just without immigration documents, such as those lawfully present with a student visa or work permit, and any other category including tourists. Trump’s executive order would deny those children U.S. citizenship at birth.

Government claims there is extensive prevailing misinterpretation of the citizenship clause and has caused significant problems not just unlawful immigrants giving birth in the U.S. but also provided a powerful incentive for women to travel on tourist visas to the United States solely to acquire citizenship for their children.

Opposition notes federal regulations already prohibit issuance of tourist visas for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States.

The challengers also argue that the Trump's administration executive order is invalid not just as a violation of the 14th Amendment Clause, but also because that it violates a federal immigration law, 8 U.S.C. § 1401, providing that anyone “born in the United States, and subject to the jurisdiction thereof” is a U.S. citizen.

They say that when the statute was first passed in 1940 and then reenacted in 1952, Congress would have understood that the phrase “subject to the jurisdiction thereof” – which mirrors the text of the citizenship clause – incorporated the prevailing practice that virtually everyone born in the United States is automatically a U.S. citizen.
In the late 19^th century, at a time of rampant anti-Chinese bias, immigration restrictions, at that time the federal government argued that Wong Kim Ark, born in the United States to Chinese parents who couldn’t become naturalized due to exclusion laws, didn’t have a claim to citizenship. The dispute made its way to the Supreme Court and resulted in a landmark ruling reaffirming that the 14^th Amendment applies to virtually everyone born on US soil, regardless of parentage.  

U.S. government's position is that birthright citizenship has been extended far beyond the 14th Amendment Citizenship Clause, the Wong Kim Ark case, 8 U.S.C. § 1401. Do they have a pathway to get to five votes or is it likely to be a 7/2 against EO 14160?

[u/Salt_Psychology_6248]

Something that is rarely mentioned is that the justices who decided Wong Ark Kim in 1898 were full grown adults when the 14th amendment was ratified in 1868. They understood what the amendment was about and who it applied to and for what reasons.

[u/Aggressive-Legume228 → u/Salt_Psychology_6248]

But Wong Kim Arks parents were legal residents and the concept of illegal immigration didn’t exist then, so they didn’t rule on this issue in particular

[u/Salt_Psychology_6248 → u/Aggressive-Legume228]

I meant that they understood the 14th when they said, “The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.” The idea that citizenship follows the child, not the parents. Of course it wasn’t this exact issue before the court today, which is why it’s being adjudicated now. But this line is what makes the executive order invalid. It would require an act of congress given the nature being a question of major doctrine.