Eliyahu Gasson | editor-in-chief

The United States Supreme Court heard arguments last week in a landmark case that could redefine who is considered a citizen at birth, and Pittsburgh-area legal scholars say the administration faces an uphill battle.

The case, Trump v. Barbara, is a class-action lawsuit filed by the American Civil Liberties Union (ACLU) to challenge an executive order signed by President Donald Trump in January last year.

The executive order, titled “Protecting the Meaning and Value of American Citizenship,” challenges the longstanding interpretation of the Citizenship Clause in the Fourteenth Amendment of the Constitution that grants citizenship to all children born in the U.S., even if their parents aren’t citizens.

The executive order directs federal agencies not to issue U.S. citizenship to children born to noncitizens 30 days after its effective date. However, several early legal challenges and judicial orders have prevented the order from going into effect.

The administration argues that the Citizenship Clause excludes children born to parents who are not citizens, even if they are in the country on a temporary visa.

“People focus mostly on children of undocumented parents, but it is really the children of those that have student visas, H-1B visas, inter-company transferees, asylum seekers … It’s everyone that is born in the United States to parents that are not citizens of the United States,” said Sheila Vélez Martínez, a Jack & Lovell Olender professor of refugee, asylum and immigration law at the University of Pittsburgh.

The phrase “and subject to the jurisdiction thereof” in the Citizenship Clause is the crux of the Trump administration’s arguments in court. In the administration’s brief, they argue the executive order “restores the original meaning of the Citizenship Clause.”

Duquesne University President Ken Gormley said the Trump administration’s arguments are resting on a shaky foundation.

“Those are the words that the Trump administration has hung its hat on. Frankly, I’ve never fully understood the argument. It looks like an argument that was made up just to seize upon some words and try to hang your hat on them, even though they don’t directly relate to this,” Gormley said.

Vélez Martínez said the administration’s argument rests on reading a concept of allegiance and permanent residence into the phrase that were never intended.

“They’re trying to sort of equate jurisdiction with domicile and allegiance,” Vélez Martínez said. “They’re trying to say that people that are not in the United States with permanent residency have some sort of dual allegiance that is enough to not confer citizenship on their children.”

The Fourteenth Amendment was adopted by Congress on July 9, 1868 ,during the reconstruction period after the Civil War. It was intended to reject the pre-Civil War Supreme Court Decision in Dred Scott v. Sanford that said Black Americans could not be citizens.

“If the slave was not a citizen, and then their children wouldn’t be citizens, and then their children wouldn’t be citizens … These families would have never become citizens. That was clearly the exact opposite of what the Fourteenth Amendment was designed to do,” Gormley said.

Aarti Kohli, executive director at the Asian Law Caucus, one of the plaintiffs in Trump v. Barbara, said in a statement from the ACLU that birthright citizenship was affirmed in the 1898 Supreme Court ruling in United States v. Wong Kim Ark. It found that children born in the U.S. to parents who were “subjects of the Emperor of China” must be granted citizenship at birth.

“For Asian Americans, that history is deeply personal — it is a right we have helped shape and defend,” Kohli said.

Gormley said the administration’s arguments and executive order are “dead on arrival.”

“I think that this executive order dealing with birthright citizenship is an example of a clear overreach when the language of the Constitution is crystal clear, and the precedent for over 100 years is crystal clear,” Gormley said.

Eliyahu Gasson can be reached at gassone@duq.edu