Most of the focus on the legal challenges to President Trump’s executive order limiting birthright citizenship focused on the Constitution’s 14th Amendment.
That amendment, proposed and ratified during Reconstruction to enshrine basic rights for formerly enslaved people and their descendants, included what has come to be known as the “citizenship clause,” which says that “all persons born” in the United States and “subject to the jurisdiction thereof, are citizens of the United States.”
What’s less commonly known is that Congress included this same language in sweeping, post-World War II immigration legislation.
The 1952 Immigration and Nationality Act was an attempt by Congress to combine the country’s various laws governing immigration into one bill. It includes language that closely mirrors that of the 14th Amendment.
It states that “the following shall be nationals and citizens of the United States at birth,” then under the first subhead, reads: “A person born in the United States, and subject to the jurisdiction thereof.”
That legislation cleared the way for more immigration and naturalization from Asia, repealing the last of measures that had been in place before its passage that were designed to exclude Asian immigrants. But it remained controversial — and was passed over the veto of President Harry S. Truman — because it retained a restrictive quota system that gave preferential treatment to immigrants from countries in Northern and Western Europe and it included anti-communism provisions that made it easier to deport immigrants who held views that at the time were considered subversive.
The groups challenging President Trump’s executive order had argued that it violated not only the Constitution but also the 1952 law, offering the statutory argument as a possible offramp that would allow the court to rule the executive order violated the federal law without deciding whether the constitution guarantees birthright citizenship. (The Supreme Court typically does not reach a constitutional question if it can decide a case on statutory grounds.)
Setting aside any debate over what Congress meant when it amended the Constitution shortly after the Civil War, there’s substantial evidence that the modern Congress intended to extend citizenship to people born on U.S. soil when it passed the 1952 law.
Lawyers for the Trump administration had countered that, in their view, the court should reject that argument and examine what the phrase “actually means, not what Congress thought it meant in 1940 or 1952.”
