Wisconsin joins lawsuit opposing end to birthright citizenship

Wisconsin has joined a coalition of states challenging what they say is President Donald Trump’s unconstitutional executive order ending birthright citizenship, the Fourteenth Amendment doctrine that those born on American soil are automatically citizens of the United States, except in certain limited circumstances.

Wisconsin and 19 other states and cities filed suit in the U.S. District Court for the District of Massachusetts seeking to invalidate the executive order and to enjoin any actions taken to implement it.

In the meantime, a federal judge in another case on the west coast has temporarily blocked the executive order (EO) while the merits of the case are argued.

The Fourteenth Amendment reads: “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.”

It’s the “subject to the jurisdiction thereof” that muddies the waters. According to the Trump administration, the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. Indeed, there have always been categories of those born on American soil but widely considered not subject to U.S. jurisdiction, and the executive order stretches that interpretation to include new exempt categories.

In the EO, among the categories of individuals born in the United States and not subject to U.S. jurisdiction are those whose mother was unlawfully present in the U.S. and the father was not a U.S. citizen or lawful permanent resident at the time of birth; and those whose mother’s presence at the time of birth was lawful but temporary, including those in the county under various visas, such as student, work, or tourist visas, and the father was not a citizen or lawful permanent resident at the time of birth.

The states, including Wisconsin, are challenging that interpretation.

“Attempting to deny citizenship to kids who were born in the United States of America is as egregious and wrong-headed as it is unconstitutional,” Evers said. “We must defend Americans’ constitutional rights, including the rights of kids who are born on U.S. soil, and that is exactly what we are doing today.”

Kaul said the constitution, federal law, and Supreme Court precedent all make clear that the children who would be impacted by the executive order are in fact U.S. citizens. 

“This attempt to deny them citizenship in blatant violation of the constitution should be rejected,” Kaul said.

Their lawsuit observes that birthright citizenship dates back to pre-Civil War America. 

“Although the U.S. Supreme Court’s decision in Dred Scott denied birthright citizenship to the descendants of slaves, the post-Civil War United States adopted the Fourteenth Amendment to protect citizenship for children born in the country,” the governor’s office stated. “As set forth in the lawsuit, the U.S. Supreme Court has twice upheld birthright citizenship, regardless of the immigration status of the baby’s parents.”

Kaul and Evers asserted that individuals stripped of their citizenship would be forced to live under the threat of deportation. 

“These individuals will lose eligibility for a wide range of federal benefits programs,” Evers and Kaul stated. “They will lose their ability to obtain a Social Security number and, as they age, to work lawfully. And they will lose their right to vote, serve on juries, and run for certain offices. Despite the constitution’s guarantee of citizenship, large numbers of children would lose their ability to fully be a part of American society and enjoy the full benefits of citizenship.”

Evers and Kaul also argue that Wisconsin and other states will lose federal funding to programs that they administer, such as Medicaid, the Children’s Health Insurance Program, and foster care and adoption assistance programs, which they say turn at least in part on the immigration status of the resident being served. 

The lawsuit is just one of multiple lawsuits filed against the EO, some of which have been consolidated.

A long and winding road

The Trump administration will be fighting an uphill battle in the lawsuits.

For instance, in Seattle, a Ronald Reagan-appointed federal judge said in a case filed by four other states that the EO was “blatantly unconstitutional”: “I’ve been on the bench for over four decades,” judge John Coughenour said. “I can’t remember another case where the question presented is as clear as this one.”

Settled case law is certainly not on the president’s side, meaning today’s courts would have to upend precedent to declare the law constitutional.

In 1844, for instance, in New York’s Lynch v. Clarke, Julia Lynch was born in New York to two Irish parents who were in the country for a family visit. Her family returned to Ireland when she was still an infant, and Lynch stayed in Ireland for the next 20 years. A court declared that she was an American citizen at the time of her birth, and that the 20-year stint in Ireland did not revoke that citizenship.

“I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen,” justice Lewis Sanford wrote. “The entire silence of the constitution in regard to it, furnishes a strong confirmation, not only that the existing law of the states was entirely uniform, but that there was no intention to abrogate or change it.”

Trump’s EO runs directly counter to that decision.

Of course, the Fourteenth Amendment itself overturned the court’s Dred Scott decision, which had declared that the enslaved were not U.S. citizens. The aim of the amendment was to ensure that those born in the country and who were subject to U.S. laws also have U.S. legal rights.

The question is, then, who could be born in the United States and not be subject to the jurisdiction thereof?

There are recognized exceptions. 

Children born in the country to foreign diplomats have not been considered subject to the jurisdiction of the United States — they have diplomatic immunity — and are therefore not U.S. citizens under the Fourteenth Amendment. Children born to soldiers of an invading army are not subject to U.S. law and also do not qualify for birthright citizenship. 

In 2021, in Fitisemanu v. United States, an appeals court ruled that those born in the unincorporated territories of American Samoa are not entitled to birthright citizenship without an act of Congress. The Supreme Court refused to hear the case on appeal. 

Perhaps most famously, in an 1898 ruling, the Supreme Court majority in Wong Kim Ark said the plain words of the 14th Amendment protected the son of Chinese nationals who was born in the United States.

“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,” justice Horace Gray wrote. “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”

Any other interpretation would deny citizenship to many thousands of Europeans, Gray wrote.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.