United States v. Wong Kim Ark: What we didn’t hear about during the oral arguments in Trump v. Barbara

(This essay sets forth legal aspects of the United States Supreme Court’s 1898 decision in United States v. Wong Kim Ark and takes no account of the policy implications of either maintaining or discontinuing “birthright citizenship.”)

The oral arguments conducted before the United States Supreme Court on April 1, 2026, relative to the case of Trump v. Barabara, which addresses President Trump’s Executive Order relating to “birthright citizenship,” included many references to the Supreme Court’s 1898 decision in United States v. Wong Kim Ark. This was to be expected, as Wong Kim Ark was the last Supreme Court decision to explicitly interpret the meaning of the words in the Citizenship Clause of the Fourteenth Amendment. However, during the oral arguments, neither counsel acknowledged the multiple references in the Wong Kim Ark decision to the interplay between the Citizenship Clause and the Equal Protection Clause of the Fourteenth Amendment. This essay will outline these references as they relate to the Supreme Court’s interpretation of the words “and subject to the jurisdiction thereof” in the Citizenship Clause.

The entirety of Section 1 of the Fourteenth Amendment reads as follows: “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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The word “jurisdiction” appears in both the first and final clauses—the Citizenship Clause and the Equal Protection Clause, respectively.

Near the conclusion of its thorough analysis of the 1812 decision in Schooner Exchange v. McFaddon, the Supreme Court in Wong Kim Ark, relative to Section 1 of the Fourteenth Amendment, declared that: “It is impossible to construe the words ‘subject to the jurisdiction thereof,’ in the opening sentence, as less comprehensive than the words ‘within its jurisdiction,’ in the concluding sentence of the same section; or to hold that persons ‘within the jurisdiction’ of one of the States of the Union are not ‘subject to the jurisdiction of the United States.’” (p. 687)

Thus, in interpreting the scope of the Citizenship Clause, the Wong Kim Ark decision unequivocally declares that it would “impossible” to hold that persons who are “within the jurisdiction” of a state for purposes of the Equal Protection Clause are not “subject to the jurisdiction” of the United States for purposes of the Citizenship Clause. In other words, according to explicit language in its opinion, the Supreme Court in Wong Kim Ark interpreted the Fourteenth Amendment as providing that any person entitled to protection under the Equal Protection Clause is, ipso facto, “subject to the jurisdiction” of the United States for purposes of the Citizenship Clause.

The majority opinion in Wong Kim Ark goes on to cite and quote, with approval, the Supreme Court’s 1886 decision in Yick Wo v. Hopkins: “The Fourteenth Amendment to the Constitution is not confined to the protection of citizens.” Relative to the Due Process and Equal Protection Clauses of the Fourteenth Amendment, Wong Kim Ark quotes the Yick Wo case further: “These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality.”

Following its discussion of the Yick Wo decision, the Supreme Court in Wong Kim Ark—for the second time—declared that “it is impossible to attribute to the words, ‘subject to the jurisdiction thereof,’ that is to say, of the United States, at the beginning, a less comprehensive meaning than to the words ‘within its jurisdiction,’ that is, of the State, at the end of the same section; or to hold that persons, who are indisputably ‘within the jurisdiction’ of the State, are not ‘subject to the jurisdiction’ of the Nation.” (p. 696)

This is incredibly important in terms of how the Wong Kim Ark decision should be interpreted and applied. The court’s opinion states—twice—in explicit, unequivocal language, that it would be “impossible” to hold that a person entitled to protection under the Equal Protection Clause is not “subject to the jurisdiction” of the United States for purposes of the Citizenship Clause. No one can reasonably question the fact that this correlation between the application of the Equal Protection and Citizenship clauses of the Fourteenth Amendment constitutes a substantial component of the Supreme Court’s interpretation and application of the words “and subject to the jurisdiction thereof” in the Wong Kim Ark case. 

Insofar as the sole basis for the Wong Kim Ark decision is the court’s interpretation and application of the words “and subject to the jurisdiction thereof,” the two statements described above cannot credibly be characterized as obiter dictum (sometimes referred to as dicta), which, translated, means “things said by the way,” and refers to a court’s incidental comments, opinions, or observations that are not essential to the final decision of the case. Rather, the two statements are properly characterized as ratio decidendi, which, translated, means “reason for the decision.” This implicates the significance of the words “for the reasons above stated” that are set forth in the concluding paragraph (i.e. the holding) in the Wong Kim Ark opinion.

During the oral arguments on April 1, it was accurately pointed out that “illegal immigration” did not really exist at the time of the ratification of the Fourteenth Amendment in 1868. However, by the time of the Wong Kim Ark decision in 1898, this was no longer true. In 1882, the Chinese Exclusion Act had been passed by Congress. Therein, the United States categorically suspended the immigration of Chinese laborers for a period of ten years and declared all Chinese subjects ineligible for naturalization. The Chinese Exclusion Act was the first broad immigration restriction in the history of the United States. It was followed by the Scott Act of 1888, which served to tighten up perceived loopholes in the Exclusion Act. Thus, by the time of Wong Kim Ark, the federal government was actively prosecuting and deporting aliens found to be in the United States in violation of these new laws. Thus, the concept of “illegal immigration” was squarely within the legal realm in which the Supreme Court was operating. To be sure, nothing like the more recent influx of undocumented aliens through our southern border or practices such as so-called “birth tourism” existed at the time of the Wong Kim Ark decision. Nevertheless, it would be utterly false to say that the justices who decided Wong Kim Ark were unfamiliar with “illegal aliens” or the application of the Fourteenth Amendment to them.

In fact, just two years before Wong Kim Ark, the Supreme Court specifically addressed the constitutional rights of persons “unlawfully” within the United States (i.e. “illegal aliens”) in its 1896 decision in Wong Wing v. United States, which is cited in the Wong Kim Ark opinion on page 699. In the Wong Wing case, the court held, based largely on the Yick Wo decision, that the Due Process and Equal Protection clauses of the Fourteenth Amendment applied to Wong Wing and others, all of whom were explicitly identified as Chinese subjects who were “unlawfully” within the United States. In other words, the Wong Wing case held that “illegal aliens” are “within the jurisdiction” of a state for purposes of the Equal Protection Clause.

As recently as 1982, the Supreme Court has addressed the application of the Equal Protection Clause of the Fourteenth Amendment to illegal aliens. In Plyler v. Doe, the court addressed the question of whether a Texas law that denied a free public education to undocumented school-age children violated the Equal Protection Clause of the Fourteenth Amendment. Though the court split on the question of whether the Texas law violated the Equal Protection Clause, the court unanimously agreed that undocumented (i.e. illegal) aliens were “within the jurisdiction” of the state for purposes of the Equal Protection Clause. Thus, longstanding Supreme Court precedent, established two years before Wong Kim Ark in Wong Wing, and remaining in force more than a century later, clearly provides that illegal aliens are “within the jurisdiction” of a state under the Equal Protection Clause.

Presumably aware of the Wong Wing decision that they had rendered just two years before, the justices in Wong Kim Ark concluded, and explicitly declared in two separate sections of the court’s opinion, that it would be “impossible” to hold that any person “within the jurisdiction” of a state under the Equal Protection Clause was not “subject to the jurisdiction” of the United States under the Citizenship Clause. Supreme Court decisions do not exist in vacuums. Reading the Wong Wing and Wong Kim Ark opinions together, the inescapable conclusion is that, pursuant to Wong Wing, “illegal aliens” are “within the jurisdiction” of a state under the Equal Protection Clause, and, therefore, according to unequivocal language in Wong Kim Ark, it would be “impossible” to hold that they are not “subject to the jurisdiction” of the United States under the Citizenship Clause.

The fact that no reference whatsoever to the above analysis was made during the oral arguments in Trump v. Barbara is, in my humble opinion, inexplicable. The Wong Kim Ark and Wong Wing opinions are in the public domain and readily available for examination online. Anyone so inclined can get on the internet and verify that the assertions in this essay are confirmed by the actual language in the official published opinions. Yet neither counsel referenced the language in the Wong Kim Ark opinion establishing an interpretive connection between the Equal Protection and Citizenship Clauses of the Fourteenth Amendment during the oral arguments.

Why didn’t they? I do not know. Any thoughts I might offer about it would be pure speculation. Regardless, the more important question is: What do the Supreme Court justices think about Wong Kim Ark? Despite many commentators offering their impressions of the oral arguments and opining as to which direction the court appears to be going, that has yet to be seen.

Will any of the opinions that are ultimately released in Trump v. Barbara (I expect at least one dissenting opinion and possibly one or more concurring opinions) mention the aspects of Wong Kim Ark that I have outlined in this essay and its companion predecessor? Will any justice agree with the analysis that I have offered? All that has yet to be seen.

In any event, if a majority of the justices were to read Wong Kim Ark the way I do, it would be practically impossible for the Supreme Court to uphold the president’s Executive Order without expressly overruling Wong Kim Ark. Overruling prior cases is well within the province of the Supreme Court. In just the last decade, the Supreme Court has overruled a prior decision in eleven separate cases. The most visible of these were Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade and Planned Parenthood v. Casey, and Loper Bright Enterprises v. Raimondo, which overruled Chevron v. Natural Resources Defense Council, Inc.

There were a significant number of Supreme Court observers who accurately predicted the overruling of both Roe and Chevron. In the wake of the oral arguments in this case, however, there are relatively few commentators articulating the same expectation regarding Wong Kim Ark, including among those who normally tend to lean in favor of the president.

Sometime this summer, when the Supreme Court issues its decision in Trump v. Barbara, we will all find out how the court rules and, presumably, learn what the justices think about United States v. Wong Kim Ark. When that happens, we will all have an opportunity to examine the court’s written opinion and assess the reasoning underlying its decision.

Michael Bloom is a former Oneida County circuit court judge and may be reached at [email protected]