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The Supreme Court chamber will be packed this morning as the justices hear arguments in a case that will almost certainly produce a historic ruling. President Trump is at the court - the first time a sitting president has gone to oral arguments. At issue is his challenge to a constitutional provision that has long been interpreted to guarantee American citizenship to every child born in the United States. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: President Trump has long maintained that the Constitution does not guarantee birthright citizenship. So on Day 1 of his second term, he issued an executive order barring automatic citizenship for any baby born in the U.S. whose parents entered the country illegally or any baby born to parents who are living and working here legally on temporary visas.
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PRESIDENT DONALD TRUMP: We're the only country in the world that does this with birthright, as you know. And it's just absolutely ridiculous.
TOTENBERG: That, actually, is not true. There are more than 30 countries that have birthright citizenship, but Trump has long been determined to rid this country of its long-standing protection for the birthright policy. Today is D-Day in that effort, and to understand the issues, it's worth taking a stroll through American history. While citizenship was not defined at the nation's founding, the colonists were largely pro-immigrant, says University of Virginia law professor Amanda Frost.
AMANDA FROST: They wanted to populate this mostly empty continent. In fact, the Declaration of Independence, one of the list of complaints against the king was that his policies were discouraging immigration.
TOTENBERG: Birthright citizenship didn't make it into the Constitution, though, until after the Civil War when the nation enacted the 14th Amendment to reverse the Supreme Court's infamous Dred Scott decision, a ruling that, in 1857, declared that Black people - enslaved or free - could not be citizens of the United States. To undo that decision, the post-Civil War Congress and more than three-quarters of the states passed a constitutional amendment that defines citizenship in broad terms. It says, quote, "all persons, born or naturalized, in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
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TRUMP: This was meant, when it was originally done, for the children of slaves. And that was a very good and noble thing to do...
TOTENBERG: President Trump.
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TRUMP: ...But it wasn't meant for the entire world to occupy the United States.
TOTENBERG: Trump's interpretation, however, has not been embraced by the courts or the legal norms of the country for 160 years. Cecillia Wang is national legal director for the ACLU.
CECILLIA WANG: The president's executive order is attempting a radical rewriting of that 14th Amendment guarantee to all of us that if you're born in the United States, you're a U.S. citizen.
TOTENBERG: Indeed, even in periods of great hostility to immigrants, the notion of birthright citizenship has remained so entrenched that during World War II, when Japanese citizens were held as enemy aliens in detention camps in the United States, their newborn children were automatically granted American citizenship because they were born on U.S. soil, and Congress subsequently codified that understanding. Today in the Supreme Court, the justices are likely to focus on the 1898 case of Wong Kim Ark, born in San Francisco in 1873 to Chinese immigrants. Back then, no documentation was required for immigrants entering the U.S., and the parents ran a business in San Francisco until they ultimately returned to China. In 1895, after their son visited his family in China, he was denied reentry on his return on grounds that he was not a citizen. He challenged the denial and won in the Supreme Court. By a 6-2 vote, the justices interpreted the words subject to the jurisdiction thereof to mean that all children born in the U.S. were automatically granted citizenship with three limited exceptions, only one of which exists today.
The Trump administration, however, argues that Wong Kim Ark's situation was very different from many of the children who become automatic American citizens today because Wong's parents were here legally by virtue of having a permanent residence in the U.S. And the administration points to the Supreme Court's language in Wong's case, language that assumes the parents had legally entered the United States, even though they had, by that time, returned to China. Daniel Epstein is vice president of American First Legal, the organization founded by the architect of Trump's immigration policies, Stephen Miller.
DANIEL EPSTEIN: An individual who is naturally born in the United States is only considered a citizen if their parents have allegiance to the nation. It is a misdemeanor to come into the United States without authorization. That is a crime. That is strong evidence that you don't kind of meet the traditional notion of allegiance.
TOTENBERG: Countering that argument, the ACLU's Wang will tell the Supreme Court that the men who wrote the 14th Amendment deliberately chose to confer automatic citizenship on the child, not the parent.
WANG: And the idea that actually goes back to the founding, that in America, we do not punish children for the sins of their fathers. But instead, we wipe the slate clean. When you're born in this country, we're all Americans all the same.
TOTENBERG: Wang says that President Trump is trying, by executive order, to change the meaning of the 14th Amendment to the Constitution. She argues that such a dramatic change by executive fiat would have untold consequences.
WANG: What will immediately happen is that every month, tens of thousands of U.S.-born babies will be stripped of their citizenship. They may be stateless because their parents' country of nationality may not consider them to be citizens.
TOTENBERG: In a separate brief, the U.S. Conference of Catholic Bishops stresses the statelessness problems that would be created by generation after generation of children who were born in the U.S. but with no country to call home and no citizenship to pass on to their children. Bishop Daniel Flores is vice president of the Bishops Conference.
DANIEL FLORES: The children would be the ones to bear the brunt of this. I have people asking me this now in my diocese, Bishop, can we help these people? Because they're people. And they were born here.
TOTENBERG: The Trump administration, however, counters by focusing on so-called birthright tourism. In fact, even birthright defenders concede that women have long paid money to come to the U.S. and have their children here. But the numbers are consistently tiny, far below 1% of the 3.6 million babies born in the U.S. each year. A decision in the birthright case is expected by summer.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
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