In US Supreme Court fight over birthright citizenship, 1898 anti-immigrant sentiment echoes – World

Now his great-grandson, a San Francisco area resident, worries that the principle enshrined by his ancestor’s case may be in peril.

“Wong Kim Ark knew he was an American. And he demanded that his citizenship be recognised. He was willing to stand up,” Norman Wong, 76, said in an interview. “Wong Kim Ark didn’t make the rule. He affirmed the rule.”

That 128-year-old understanding will be contested again at the SC on Wednesday when the justices hear arguments over the legality of Trump’s executive order that would deny automatic citizenship to babies born in the US if neither parent is an American citizen or legal permanent resident.

Though he was unaware of the legacy of his great-grandfather for most of his life, Norman Wong has since spent years learning about it, and last year visited his family’s ancestral village in China.

The Trump administration is offering “fake arguments and fake reasons” to accomplish a dangerous goal that is contrary to the American dream, the retired carpenter said.

Trump’s fight at the SC “was settled 128 years ago,” Wong said. “We’re just revisiting it.”

The Republican president’s directive, issued in January 2025 on his first day back in office as part of a sweeping crackdown on immigration, carried through on threats Trump had made for years to try to restrict birthright citizenship.

The administration has said automatic citizenship creates incentives for illegal immigration and leads to “birth tourism,” by which foreigners travel to the US to give birth and secure citizenship for their children.

Critics call Trump’s directive a plainly unconstitutional action rooted in racially discriminatory anti-immigrant views.

Trump’s order would refuse to recognise the citizenship of babies of immigrants who are in the country illegally or whose presence is lawful but temporary, such as university students or those on work visas.

The court, which has a 6-3 conservative majority, has repeatedly let Trump expand mass deportation measures on an interim basis while legal challenges play out — such as ending humanitarian protections for migrants or allowing them to be deported to countries where they have no ties.

Many legal experts have said that, given the nation’s long tradition of birthright citizenship in addition to the precedent involving Wong Kim Ark, the administration faces an uphill battle as it seeks to reinterpret the 14th Amendment.

The 14th Amendment’s Citizenship Clause states: “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

The 14th Amendment was ratified in 1868 in the aftermath of the Civil War of 1861-1865 that ended slavery in the United States.

It overturned the SC’s notorious 1857 decision called Dred Scott v. Sandford, which had declared that people of African descent could never be US citizens.

“Every single method and source of constitutional interpretation confirms that it applies to everyone born in the United States with extremely narrow common law exceptions,” University of Virginia law professor Amanda Frost said.

The primary exception relates to children born to foreign diplomats, who would not have birthright citizenship.

Trump’s Justice Department contends that for generations the US government has mistakenly conferred citizenship on people who do not qualify — namely, those present illegally or temporarily.

If the SC endorses that view, the practical consequences would be enormous, affecting the legal status of as many as 250,000 babies born each year in the US, according to some estimates, and requiring the families of millions more to prove the citizenship status of their newborns.

Though Trump’s directive specifically targets babies born after it goes into effect, critics have expressed concern that it later could be applied retroactively.

“While the order is formally prospective… the arguments the government is making about what it claims the Constitution means cast a shadow over the citizenship of millions of other people who have lived their entire lives as American citizens, potentially going back generations,” said Cody Wofsy, an American Civil Liberties Union attorney representing the challengers to Trump’s directive.

“Even beyond that, I think a decision in favor of the government here would signal open season on challenges to the citizenship of fellow Americans, even those whose parents are not non-citizens in these particular categories” of people targeted in Trump’s directive, Wofsy said.

The lawsuit before the SC challenging Trump’s order was brought in New Hampshire by the ACLU on behalf of parents and children whose citizenship would be threatened.

US District Judge Joseph Laplante let the plaintiffs in that case proceed as a class, allowing Trump’s order to be blocked nationally.

When Wong Kim Ark, a cook in his 20s, returned from a months-long trip to China in 1895, customs officials in San Francisco declared him a non-citizen.

Though he was born in the city’s Chinatown neighbourhood, the officials said that because his parents were Chinese nationals, so too was he, and as such, he was ineligible for entry due to an 1882 law called the Chinese Exclusion Act that restricted Chinese migration and citizenship.

The SC rejected the government’s bid to place limits on citizenship based on the 14th Amendment’s language conferring citizenship to only those born in the United States who are “subject to the jurisdiction thereof.”

The latter phrase was meant to exclude from citizenship by birth on US territory the children of foreign diplomats and occupying enemies — which did not apply to Wong Kim Ark — and “not to impose any new restrictions upon citizenship,” the court said in a 6-2 ruling.

Native Americans were also included among the exceptions, although they were accorded citizenship by statute in 1924.

To hold otherwise, the court added, “would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage who have always been considered and treated as citizens of the United States.”

Trump’s administration has argued that his directive complies both with the 14th Amendment and the 1898 ruling because it allows citizenship for some immigrants with lawful “domicile” in the United States, including permanent residents.

At the time of his birth, Wong Kim Ark’s parents had permanent domicile and residence in the US, the administration has said, citing the court’s ruling in the case.

Those in the US only temporarily or illegally do not meet this standard, according to the administration.

“I just don’t think it’s correct to say that Wong Kim Ark (as a legal precedent) decided the question of the citizenship status of children born to temporary visitors or to people here illegally,” University of Minnesota law professor Ilan Wurman said.

That precedent “strictly speaking, focused on law domiciled parents,” Wurman said, adding: “There is good language in that case supporting either side of this case.”

Norman Wong, who like his ancestor, was born in San Francisco, now embraces the chance to warn others about the Trump administration’s quest to limit citizenship.

“I didn’t see the executive order… as an end. I saw that as a beginning, that they would chip away at citizenship until they can do away with the people that they don’t want. And they’ll always have a reason, you know?” Wong said.

“We’re talking about the soul of America, who we are as a people.”