By Gabriël Moens and Augusto Zimmermann
The United States Supreme Court announced last Thursday that it has scheduled a hearing for 15 May regarding President Donald Trump’s executive order seeking to end birthright citizenship for children of illegal immigrants and those on temporary visas.
On 20 January 2025, President Trump signed Executive Order 14156. Entitled Protecting the Meaning and Value of American Citizenship, this Order aims at denying the granting of citizenship to the children of parents who are in the United States illegally.
In attacking the constitutionality of Trump’s Order, opponents of the Order rely on the 1898 case of United States v. Wong Kim Ark[i], to argue that the 14th Amendment to the United States Constitution is authority for the proposition that even children born from illegal immigrants in America are constitutionally entitled to the grant of citizenship.[ii] This Amendment stipulates that ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside’.
Wong Kim Ark was a 24-year-old person, born in the United States of legal Chinese immigrants, but denied re-entry when he returned from a visit to China. Ark, relying on the 14th Amendment, argued that he qualified as an American citizen because he was born in America and was subject to the jurisdiction thereof. In a 6-2 decision, Mr Justice Gray agreed with Ark’s argument, but identified three exceptions to the constitutional rule that children born in the United States are citizens:
The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, … The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.[iii]
It should be noted that foreign diplomats are legal residents of the United States who represent the interests of the country they come from; the Court wanted to carve out an exception to ensure their children born in America would not be recognised as citizens. The same applies to subjects of an enemy power who might legally reside in the United States at the time of the conflict; their children too would not qualify as citizens. The Court does not say that the exceptions identified in its judgment are the only exceptions and that its list of exceptions is exhaustive. The Supreme Court did not consider whether the 14th Amendment applied to the children of illegal immigrants because Ark’s parents were legal residents, and the Court usually refrained from dealing with an issue that was not before it.
Of course, the children of illegal immigrants are subject to U.S. jurisdiction because they must follow American laws, can be prosecuted in American courts, and pay American taxes. However, the issue, as to whether the 14th Amendment can be relied upon to support the proposition that children born from illegal immigrants are citizens, is conceptually different from, and is separate from, the obligation imposed on them to pay taxes.
We argue that the Amendment should not be interpreted to mean that the children of illegal migrants automatically qualify as citizens. As indicated before, Wong Kim Ark does not say anything about whether the 14th Amendment was meant to be applied to the children of illegal immigrants. This is because Wong Kim Ark involved legal residents of the United States, and it established three exceptions to the constitutional rule that the children of legal immigrants are citizens.
The Supreme Court did not contemplate the question of whether children born from unlawful non-citizens should have American citizenship because, at the time of the judgment, this was not an issue. Hence, we do not know what the Court would have decided if Ark had been the child of non-citizens illegally residing in the United States. Consequently, the claim that the 14th Amendment extends to the children of illegal immigrants is highly contestable.
We should also note that there were two dissenting opinions; this suggests that the decision rendered by the Court, in this case, is contestable and is by no means as clearcut as some commentators would want us to believe.
Our argument concerns the reason for the adoption of the Amendment. In his judgment, Justice Gray confirms that the original intent of the 14th Amendment was ‘to confer upon the colored race the rights of citizenship.’[iv] He also confirms that the Constitution and, hence, the 14th Amendment, ‘must be interpreted in the light of … the principles and history of which were familiarly known to the framers of the Constitution’.[v]
Some might say that Trump cannot order federal agencies to “interpret citizenship narrowly”.
However, under Article II, Section One, Clause 8, Trump took the following Oath at his inauguration ‘I do solemnly swear … that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.’ Trump’s signing of this Executive Order proves that he faithfully adheres to the presidential Oath taken at his inauguration. Indeed, if the issue, namely whether children of illegal immigrants are American citizens, is contestable (as we argue it is), then the Executive Order serves as a convenient and welcome vehicle to force the Supreme Court to expound on this issue and tell us what the 14th Amendment truly means. Trump effectively ensured that, eventually, the issue will reach the Supreme Court and enable a reconsideration of Wong Kim Ark as to whether it equally applies to children of illegal immigrants – an issue which did not present itself in 1898.
In our opinion, reliance on the Wong Kim Ark judgment to declare the Executive Order unconstitutional is problematic because that case concerned Chinese immigrants who were legally in the United States and had their ‘permanent domicil and residence in the United States, and are there carrying on business.’[vi] Hence, Wong Kim Ark does not provide constitutional authority for the proposition that people born in the United States of illegal immigrants are citizens. In such circumstances, the President ought to have the executive freedom to vigorously pursue his agenda, especially if its exercise has been signposted during the election campaign.
As can be seen, Trump is simply defending the Constitution by seeking an authoritative statement from the Supreme Court regarding the meaning of the 14th Amendment. Furthermore, surely Trump’s Oath to defend the Constitution requires him to act when the United States is overrun by illegal immigrants, as was the case under President Joseph Biden, and pregnant women intentionally travel to the United States to give birth, in the expectation that their offspring will thereby become American citizens. In such circumstances, there is a duty on the President to facilitate a review of this issue by the Supreme Court on whether the 14th Amendment can be used to achieve that purpose.
Of course, the intention of the Executive Order was not to reward unlawful behaviour, and to provide citizenship to the children of illegal immigrants. It is often said that a fundamental tenet of the common law is that nobody should profit from their own wrong. Still, activist individual judges so far have uniformly ruled against the administration. These judges lack the power to give nationwide effect to their rulings. Furthermore, the Justice Department correctly argues that the use of these broad court orders ‘thwart the Executive Branch’s crucial policies on matters ranging from border security, to international relations, to national security, to military readiness.’[1]
In this sense, we are concerned that “legal” commentary on this Executive Order is rarely underpinned by measured and reasonable arguments. It is fair to say that such commentary on Trump’s actions often assumes that the President exhibits a predisposition to consolidate his political power and destroy the foundations of America’s constitutional order. Yet, the primary purpose of President Trump’s Executive Order was not to deny citizenship to the children of legal immigrants, but instead to provide an effective way to highlight the anomalous consequences of allowing the 14th Amendment to be misused for illegal conduct. The Amendment’s provision has become a ‘magnet for illegal immigration’ and it encourages pregnant women to illegally cross the border to give birth, an act that has been called ‘birth tourism’ or having an ‘anchor baby’.[vii]
It is appropriate to finish this opinion piece by reminding our readers that birthright citizenship, introduced by the 14th Amendment in 1868, was intended to be a transformative policy designed to address the injustices of slavery, not to benefit illegal immigration. The intention of the constitutional legislator was never to reward illegal behaviour by unlawful non-citizens. Trump’s Executive Order, therefore, is constitutionally valid because it does not violate the spirit and purpose of the 14th Amendment to the U.S. Constitution.
In conclusion: Trump’s Executive Order does not violate the 14th Amendment, and quite to the contrary. We hope the Supreme Court upholds the law by deciding accordingly.
Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University.
Augusto Zimmermann PhD, LLB, LLM, CIArb is a professor of law and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia.
Zimmermann & Moens are the authors of The Unlucky Country (Locke Press, 2024).
[1] ‘Supreme Court sets date in May to hear arguments on Trump’s birthright citizenship order’, PBS News, 17 April 2025, at https://www.pbs.org/newshour/politics/supreme-court-sets-date-in-may-to-hear-arguments-on-trumps-birthright-citizenship-order
[i] United States v. Wong Kim Ark, 169 U.S. 649 (1898) (A 6-2 decision, Chief Justice Fuller and Justice Harlan dissenting)
[ii] See, for instance, Roger Partridge, ‘Trump’s War on Constitutional Democracy’, Quadrant Online, 22 February 2025, at https://quadrant.org.au/news-opinions/america/trumps-war-on-constitutional-democracy/
[iii] Wong Kim Ark. at 693.
[iv] Wong Kim Ark. at 692.
[v] Wong Kim Ark, at 654.
[vi] Wong Kim Ark, at 705.
[vii] ‘Trump has vowed to end birthright citizenship. Can he do it?’, BBC, 22 January 2025, at bbc.com/news/articles/c7vdnlmgyndo.
