A constitutional fight with very old baggage
Donald Trump’s effort to use executive power to decide who counts as an American is drawing on legal arguments that critics say come straight out of the country’s most openly racist eras. That includes citations to white supremacist scholars, a former Confederate officer and a case involving Chinese immigrants that the Supreme Court later rejected.
The Supreme Court is scheduled to hear oral arguments on April 1 over Trump’s executive order seeking to deny citizenship to some children born in the United States. The order is a direct challenge to long-settled birthright citizenship rules, which have generally granted citizenship to almost everyone born on U.S. soil.
In court filings, Trump administration lawyers cite 19th-century scholars who argued against birthright citizenship during the post-Reconstruction period, when anti-Black and anti-Chinese racism heavily shaped immigration and citizenship debates. The administration’s briefs lean on legal figures whose ideas were tied to some of the ugliest parts of the country’s constitutional history. A modern classic, if your taste runs to court-approved prejudice.
The names the administration is quoting
One of the figures cited is Alexander Porter Morse, a former Confederate officer whose arguments helped shape the Supreme Court’s 1896 separate but equal doctrine, the decision that gave legal cover to Jim Crow segregation for decades.
In one brief to the Supreme Court, the administration quotes Morse to argue that the children of “foreigners transiently within the United States” are not U.S. citizens.
The government also cites Francis Wharton, an attorney who wrote that granting citizenship to Chinese immigrants who were not sufficiently “civilized” would bring “foreign barbarism” into the country.
Another cited figure is George D. Collins, who argued that Chinese immigrants were “utterly unfit” and “wholly incompetent” to receive citizenship. In a letter to the Supreme Court filed in 1898 alongside then-solicitor general Holmes Conrad, Collins asked:
“Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation?”
He and Conrad added, “If so, then verily there has been a most degenerate departure from the patriotic ideals of our forefathers; and surely in that case American citizenship is not worth having.”
What the Constitution actually says
The 14th Amendment says 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.” For more than a century, the Supreme Court has interpreted that language to mean that nearly everyone born in the country is a citizen.
The legal theory now being revived by Trump’s team was pushed in the late 1800s by Wharton and others, who claimed the phrase “subject to the jurisdiction thereof” excluded the children of Chinese immigrants.
The Supreme Court rejected that argument in United States v. Wong Kim Ark, a landmark ruling that held the 14th Amendment grants citizenship to virtually everyone born in the United States. The case involved a man born in San Francisco to Chinese immigrant parents. The court ruled he was a U.S. citizen, effectively cementing birthright citizenship, with narrow exceptions for children of diplomats and invading armies.
That decision has sat at the center of U.S. citizenship law ever since, which is why this latest attempt to rethink it is, to put it gently, not exactly a small administrative tweak.
Critics say the administration is recycling rejected racism
Justin Sadowsky, an attorney with the Chinese American Legal Defense Alliance, told the high court that the administration’s legal defense is “built on a racist foundation.” His organization says the government cites Collins and similar figures at least 19 times, even though those arguments were rejected in Wong Kim Ark more than 100 years ago.
Cody Wofsy, deputy director of the ACLU’s Immigrants’ Rights Project and a lead counsel in the case, said the administration is recycling arguments that were already shut down.
The ideas being used now are “entirely recycled,” he said, and reflect a “broader effort to reshape the demographics of this country, and to try to redefine what it means to be an American.”
Administration officials say those scholars have been cited by the Supreme Court before and argue that their views were not unique to overt racists. They also contend that other prominent thinkers held similar positions without sharing the same racist views.
White House spokeswoman Abigail Jackson said in a statement to The Washington Post, which examined the administration’s reliance on these arguments, that the Supreme Court should “review the Fourteenth Amendment’s Citizenship Clause and restore the meaning of citizenship in the United States to its original public meaning.” She added, “This case will have enormous consequences for the security of all Americans.”
What Trump’s order would do
Trump signed the birthright citizenship order on his first day back in the White House. It would deny citizenship to newborns if their mother was “unlawfully present” or had “lawful but temporary” status, and if the father “was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
Critics say that would upend a basic constitutional rule and replace it with a patchwork system of rights and benefits. That could affect not only citizenship but related protections such as the right to vote.
According to the plaintiffs, tens of thousands of newborns could be denied citizenship each year under the order. They warn that the result would be families with mixed immigration status, children at risk of statelessness and a system where constitutional rights vary depending on parentage. America does love a straightforward problem made more complicated on purpose.
Wofsy said the current system is simple for a reason.
“Right now, having a baby in the United States is straightforward. The hospital fills out a form, and within days, your newborn has a Social Security number and a birth certificate recognizing their citizenship,” he said. “That system works because it's simple and universal. This executive order would end that and create chaos for all of us.”
Ama S. Frimpong, legal director at We Are CASA, one of the groups challenging the order, said immigrant families are already worried about what the policy would mean for their children’s birth certificates and basic legal rights.
“Allowing this executive order to stand would create chaos, undermining long-standing systems that rely on birthright citizenship, and potentially leaving children stateless or vulnerable to deportation by their own government,” she told reporters last week.
Trump’s own version of the argument
Two days before the Supreme Court was set to hear the case, Trump attacked the justices on Truth Social and claimed birthright citizenship was about “BABIES OF SLAVES.” That matched another line of argument from his administration: that the 14th Amendment’s citizenship clause was meant to protect formerly enslaved people and their children.
Wofsy said there is a clear irony in that claim.
“There’s a bit of irony in some of the Trump administration's arguments on this, seen in the briefs and heard from the president - the claim that the citizenship clause was only for citizenship for Black Americans, and not for anyone else. But the text of the clause says all persons born,” he said.
He added that civil rights laws often began as efforts to address the harms done to Black Americans, but Congress frequently used universal language so the protections would extend to everyone.
“The Trump administration now invokes that civil rights language to advocate on behalf of white litigants with claims of racial discrimination,” Wofsy said.
“So, there’s some real irony in its arguments in this one particular case, that against the text of the clause, it should be understood to only protect one particular race of people, as opposed to all children born in this country,” he said.
