The Supreme Court is Set to Open New Front in Immigration Battle
As some states fight over immigration enforcement, the Supreme Court is set to tackle fundamental questions of citizenship on another front. In April, the Court will hear arguments in a case challenging President Trump’s executive order that reinterprets conventional application of birthright citizenship.
Despite recent events, the divide on immigration remains—mostly—intractable. And while the case before the Court is unlikely to lower the temperature, it will force the justices to settle one of immigration’s most hotly contested issues: what to do with the children of illegal immigrants.
According to the Center for Immigration Studies (CIS), illegal immigrants account for approximately 7.5% of births nationwide on a yearly basis with approximately 10% of those births being the result of birth tourism. In 2023 there were an estimated 225,000-250,000 births to illegal immigrants, which, according to CIS, is more than the “total number of births in all but two states taken individually.”
Historically, the Citizenship Clause of the Fourteenth Amendment has been used as a guarantee of citizenship to all born within the dominions of the United States without exception. But that view has been called into question in recent years.
And for good reason.
The question before the Supreme Court is not whether the Fourteenth Amendment contemplates exceptions to the general rule of birthright citizenship—because it does—but whether the children of illegal aliens should be numbered among the exceptions.
The Fourteenth Amendment requires two conditions for citizenship: residence and allegiance. The latter has long been recognized as a crucial element of constitutional citizenship by the Supreme Court in cases such as Elk v. Wilkins and United States v. Wong Kim Ark. In both cases, the Court explained the Fourteenth Amendment’s requirement that a person be “subject to the jurisdiction” of the United States is more than a requirement that the person be subject in some way to the laws of the United States but is a requirement that a person owe “direct and immediate allegiance.” This emphasis on allegiance is the best way to make sense of the two exceptions to birthright citizenship already recognized by the Supreme Court—children of foreign ambassadors and children of alien enemies.
American law recognizes the common law division of non-citizens into two categories, alien friends and alien enemies. The former owe allegiance to the United States and are granted certain rights and privileges while the latter, failing to give the United States its due allegiance, do not possess those same rights and privileges.
Illegal immigration definitionally betrays a lack of allegiance to the government of the United States as it is ongoing act of defiance. Since parents cannot pass onto their children that which they do not themselves possess, the children of illegal aliens cannot inherit the allegiance that defines the constitutional framework of citizenship.
Additionally, illegal aliens do not possess the same constitutional protections as citizens. As the Supreme Court made clear in Mathews v. Diaz, despite being afforded the protection of “the Due Process Clause . . . aliens are [not] entitled to enjoy the advantages of citizenship[.]”
Constitutional citizenship is grounded in the reciprocal relationship of allegiance and protection. Illegal aliens “are not law-abiding, responsible citizens or members of the political community, and aliens who enter or remain in this country illegally and without authorization are not Americans as that word is commonly understood.” They offer no allegiance and in turn, the government offers limited protection.
Since they have no right to dwell in the country in which they are illegally present, illegal aliens face the constant threat of removal. This threat further ensures that children of illegal aliens will not possess the requisite allegiance for constitutional citizenship because instead of seeing the sovereign as a protector, they may see the sovereign as a persecutor.
To put it succinctly, because illegal aliens are aliens in enmity with the United States their children cannot inherit the requisite and allegiance and obedience required for constitutional citizenship.
It’s unlikely any Court ruling on birthright citizenship will placate new or future grievances. But despite what it lacks as a salve, a ruling rooted in the text of the Constitution and the history and tradition of American law would make up for in legal certainty—not just for those fighting on both sides of the 21st century immigration wars, but also for millions of people putting faith in what is, until now, an unsettled point of constitutional law.