Get ready for a Supreme Court showdown over President Trump’s executive order ending birthright citizenship — the idea that all children born in the United States have the same rights, regardless of when and how their parents arrived.
Despite what many pundits and even lower court judges are saying, overturning Trump’s order is not a slam-dunk for the president’s opponents.
There are powerful arguments and Supreme Court precedents on both sides.
And the 1888 case most often cited by Trump’s opponents, US v. Wong Kim Ark, actually supports the president’s order.
That case was 138 years ago.
This year, on Jan. 20, Trump declared by executive order that babies born to illegal immigrant mothers, and lacking a father who is a citizen or legal US resident, will no longer automatically receive US citizenship.
As of Feb. 17, hospitals would be barred from issuing US birth certificates for these newborns, who number about 250,000 per year.
Trump also took aim at birth tourism, ending automatic citizenship for the 30,000 babies born each year to women who enter the US legally on temporary visas expressly to give birth here.
Some women wade across the Rio Grande, others fly first class, but both claim citizenship for their newborns under the birthright clause of the 14th Amendment.
The clause was originally proposed to guarantee citizenship to children born to former slaves, but during its drafting in 1866, Congress expanded the principle to children of any race or ethnicity born within the boundaries of the United States.
Congress did not debate whether the offspring of those in the country illegally were guaranteed citizenship — because there was no such thing as illegal immigration at the time.
Even the odious Chinese Exclusion Act wasn’t passed until 1882, and the US didn’t put numerical limits on immigration until 1921.
Yet Trump’s executive order triggered lawsuits by 22 states, the city of San Francisco, and numerous nonprofits.
Within days, federal judges were blocking its implementation.
Judge John C. Coughenour of the Western District of Washington state called it “blatantly unconstitutional.” Judge Deborah Boardman of Maryland claimed the Supreme Court has “resoundingly rejected the president’s interpretation” of the 14th Amendment.
These are overstatements: There’s no predicting how the Supreme Court will rule.
No justice has expressed a view on the question other than Samuel Alito, who stated during his confirmation hearing that birthright citizenship “may turn out to be a complicated question.”
As for precedent, there’s only one Supreme Court ruling on birthright citizenship in the last 160 years: the Wong Kim Ark case.
In that case, the court ruled that the protections and guarantees afforded by the 14th Amendment belong to citizens and noncitizens alike, “so long as they are permitted by the United States to reside here.“
That phrase is key: The justices will have to determine whether illegal immigrants are “permitted” to live in the US — an oxymoron.
Justice Horace Gray, writing for the court in Wong Kim Ark, supported the decision by citing an earlier Supreme Court ruling, the 1886 case of Yick Wo v. Hopkins, which said the 14th Amendment’s equal protection clause applied to people of all races “who have the right to temporarily or permanently reside within the United States.”
Not people here illegally.
These cases do not back up Judge Boardman’s flamboyant claim that the court has “resoundingly rejected” Trump’s interpretation.
Lacking precedent, the Supreme Court’s conservative majority will likely look to founding principles.
Birthright citizenship is a noble idea, to be sure. Its defenders warn that making children born to illegal immigrants ineligible would produce a subclass of people with fewer rights, threatening American principles of egalitarianism.
But its critics argue that its abuse makes a mockery of citizenship and turns taxpayers into saps.
Nationwide, 60% of households headed by an illegal immigrant collect federal benefits like SNAP nutrition assistance and Medicaid, according to the Center for Immigration Studies.
Often a US-born child is the meal ticket making the household eligible.
Illegal border crossings are down 90% since Trump took office. But executive orders are temporary, lasting only as long as the president remains in office.
So however the court rules, Congress must act.
Congress can limit household eligibility for federally funded benefits, or impose time limits.
That would alleviate the cost to taxpayers — and, just as importantly, would reduce incentives to enter the country illegally.
Otherwise, open borders and an extravagant welfare system will deplete this nation under a future president, with or without birthright citizenship.
Betsy McCaughey is a former lieutenant governor of New York and co-founder of the Committee to Save Our City.
