The nation’s highest court announced late last week it has agreed to decide whether President Donald Trump's executive order, which ends automatic birthright citizenship for children born on U.S. soil, is unconstitutional. The court will hear the case in January.
The famous addition to the U.S. Constitution, the 14th Amendment, was adopted in 1868 after the U.S. Civil War to address freed slaves. The amendment replaced the infamous 1857 ruling in Dred Scott v Sandford that found African slaves living in the U.S. were not citizens.
Trump has argued a specific clause in the 14th Amendment, the Citizenship Clause, makes it clear the parents of children born on U.S. soil must be subject to the jurisdiction of the United States government.
Mike Donnelly, an attorney who has studied the issue, says it was recognized that jurisdiction did not include certain classes of people.
“And let's be clear: the 14th Amendment had a very specific purpose,” he said. “Its purpose was to recognize and permit citizenship for freed slaves, people who had been in slavery who had been emancipated, and now were going to become citizens of the state in which they resided, and citizens of the United States."
The legal issue is further complicated by a second 19th century ruling. Back in 1898, the high court ruled on behalf of a Chinese-American, Wong Kim Ark, who was born to Chinese parents in California.
When the justices hear arguments in January, it will be 128 years after the Ark ruling and at the same time Chinese women routinely fly to the U.S. on a tourist visa and give birth to a child, now a U.S. citizen.
In the law, the issue of birthright citizenship is often referred to as jus soli, or “citizenship by the soil.”
Donnelly told show host Jenna Ellis he is encouraged, first of all, the justices wanted to hear the case. He also believes they want to rule on the merits of the case.
“That, to me, seems to bode well for the president,” Donnelly shared, “because if it wasn't the case, they could have just let it go through the courts.”
