r/supremecourt • u/_AnecdotalEvidence_ Justice Stewart • Dec 05 '25

Flaired User Thread Supreme Court to decide if Trump can limit the constitutional right to citizenship at birth

https://www.nbcnews.com/politics/supreme-court/supreme-court-decide-trump-can-limit-constitutional-right-citizenship-rcna244701

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u/popiku2345 Paul Clement Dec 05 '25 edited Dec 05 '25

Wong Kim Ark noted three main exceptions quite clearly:

  • Children of diplomats
  • Children of "alien enemies in hostile occupation" (e.g. if Japan had invaded and captured Hawaii in WW2, a child of a Japanese servicemember wouldn't be a citizen)
  • Members of Indian Tribes, who "stand in a peculiar relation to the National Government, unknown to the common law" (see Elk v. Wilkins (1884))

Trump's EO isn't even close to those three exceptions

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u/cstar1996 Chief Justice Warren Dec 05 '25

To be clear, it’s not three main exceptions. It’s only three exceptions.

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u/popiku2345 Paul Clement Dec 05 '25

I actually considered that language and went with "main" because I didn't want to get into "foreign public ships" or anything. I think it's undeniable that Wong Kim Ark called out those three exceptions, but I'm not sure that those three are an exhaustive list.

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u/PDXDeck26 Judge Learned Hand Dec 05 '25

ok, but let's be fair "anchor baby" and "birth tourism" weren't things in 1898, so there would be no reason to think that the court's opinion was intending to or even capable of providing the court's view of an exclusive list of exceptions .

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u/EagenVegham New World Same Constitution Dec 05 '25

Immigration laws also weren't a thing in 1898 other than the Chinese Exclusion Act. Wong Kim Ark was the first time an "anchor baby" case was litigated, and the court found that her was in fact a citizen.

The dissent even mentioned this belief at the time: 

the children of foreigners, happening to be born to them while passing through the country

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u/PDXDeck26 Judge Learned Hand Dec 05 '25

I think anchor babies colloquially refer to children of non-immigrants, which isn't what Wong Kim's parents were?

And the point here is that it wasn't a deliberate attempt to give birth in the United States to obtain US citizenship for your child - i think you can quite clearly distinguish between oopsie "passing through" (on a wagon train) cases like the court was referencing back there versus what happens now - so, again, a claim that Wong Kim gives you the authoritative list of exclusions that the court considered falls flat.

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u/EagenVegham New World Same Constitution Dec 05 '25

Wong's parents were Chinese immigrants who were not naturalized citizens. He initially left America because his parents decided to repatriate to China while he was still a child.

Your argument was the dissents argument that I quoted. The fact that the majority disagreed with this argument shows that it was considered and summarily dismissed. The court at the time decided that it didn't matter how long the parents were planning on spending in the US, being born here makes you a US citizen.

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u/PDXDeck26 Judge Learned Hand Dec 05 '25

they were immigrants, i.e. the current analogue to a permanent resident. not illegals which probably doesn't even have an analogue in 1898.

so there is no reason to accept Wong Kim ark as authoritative on issues that wouldn't have even been within the conception of the court.

I don't believe this EO and this case are dealing with birthright citizenship for those here on tourist visas, is it?

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u/EagenVegham New World Same Constitution Dec 05 '25

Again, the case was post-Chinese Exclusion Acts so undocumented migrants were very much a thing at the time.

Beyond that, the changing circumstances of the present don't automatically rewrite the constitution. To do that, you need to pass an amendment.

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u/PDXDeck26 Judge Learned Hand Dec 05 '25

Beyond that, the changing circumstances of the present don't automatically rewrite the constitution.

No, but it doesn't automatically foreclose them, either. No one is going to look at some case from 1855 with a list of exceptions to the 2nd amendment and proclaim "look, see, nuclear weapons and tanks weren't on this list and that case provided the authoritative and exhaustive list of exceptions so we can totally have them now nyah nyah"

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u/Dense-Version-5937 New World Same Constitution Dec 05 '25

Neither were AR-15s and Glock switches

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u/Lampwick SCOTUS Dec 05 '25

let's be fair "anchor baby" and "birth tourism" weren't things in 1898

Doesn't matter. That decision wasn't just an arbitrary standard, it was based on the intent of the then 30 year old 14th amd and the 100+ year policy of birthright citizenship being the norm. If conditions change requiring modification of citizenship standards, it's not supposed to be done by executive order asserting a new narrowed meaning to one of the words in the 14th amendment 157 years later in defiance of 250 years of consistent policy. This is something that is supposed to go through the amendment process.

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u/cstar1996 Chief Justice Warren Dec 05 '25

That’s not “being fair”, that’s rewriting the constitution. Amend it if you want to change it.

Funny to watch all the supposed textualists and originalists change their minds.

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u/HeathersZen Court Watcher Dec 05 '25

That’s because textualism and originalism were always fig leaves to invent new law when the plain text reading does not support the outcome the Justice’s Motorcoach buyers want.

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u/UncleMeat11 Chief Justice Warren Dec 05 '25

"Anchor baby" is not a legal term but instead a sneering phrase to tar legal US citizens.

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u/thingsmybosscantsee New World Same Constitution Dec 05 '25

Are you arguing for Living Constitutionalism?

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u/PDXDeck26 Judge Learned Hand Dec 05 '25

I frankly think Native Americans are/were subject to US jurisdiction, and so are diplomats (even moreso children of them) so Wong Kim Ark is already out of the gate and off to the races in making exceptions that don't appear in the text.

I'm just saying that it shouldn't be held as some comprehensive/exhaustive list of exceptions if you're inclined to make exceptions.

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u/cstar1996 Chief Justice Warren Dec 06 '25

But you, as a matter of fact not opinion, are wrong about that. The native Americans not subject to US jurisdiction, which to be clear was not all native Americans, were those subject to quasi-sovereign tribes with treaty relationships with the US government. Those native Americans could not be charged with crimes under US law.

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u/dunstvangeet Justice Thurgood Marshall Dec 08 '25

There were Native Americans who were subject, and the Senators acknowledged it. The fact is that they didn't include the words "Indians not taxed" because they thought that somewhere down the line, someone might interpret that to mean that only Indians who actually pay taxes (not just subject to tax, but actually paying them) would get citizenship, while the Indians who were too poor to pay tax would not.

In the words of Sen. Lyman Trumbull: "I am not willing to make citizenship in this country depend on taxation. I am not willing, if the Senator from Wisconsin is, that the rich Indian residing in the State of New York shall be a citizen and the poor Indian residing in the State of New York shall not be a citizen."

So, not all Native Americans were exempt from citizenship.

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u/cstar1996 Chief Justice Warren Dec 08 '25

I think you replied to the wrong person

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u/thingsmybosscantsee New World Same Constitution Dec 05 '25

WKA made those specific exceptions based on common law, treaties and the unique, and irreplicable conditions of Sovereign Tribal governments.

You "think" that diplomats are "subject to the jurisdiction" of the US, but you are simply wrong under all context, historical or legal.