Birthright citizenship: why the text, history, and structure of a landmark 1952 statute doom Trump’s executive order 14160

Brothers in Law is a recurring series by brothers Akhil and Vikram Amar, with special emphasis on measuring what the Supreme Court says against what the Constitution itself says. For more content from Akhil and Vikram, please see Akhil’s free weekly podcast, “Amarica’s Constitution,” Vikram’s regular columns on Justia, and Akhil’s new book, Born Equal: Remaking America’s Constitution, 1840-1920.

Put aside, for a moment, all the ways that President Donald Trump’s attempted redefinition of birthright citizenship in his executive order 14160 violates the plain letter and obvious spirit of the 14th Amendment. Bracket, for now, the Trump order’s incompatibility with the Supreme Court’s landmark 1898 decision in United States v. Wong Kim Ark, and indeed with every ruling of every notable American court ever to rule on birthright citizenship. Forget, for argument’s sake, Trump’s mercurial repudiation of what every post-Civil War president – including Trump himself, in his first term – has ever done when encountering babies born on American soil under the American flag to foreign parents who themselves are neither U.S. citizens nor green-card holders.

Focus instead, for just a few minutes, on 8 U.S.C. § 1401(a), part of the 1952 Immigration and Nationality Act, which has remained on the books for nearly three quarters of a century. It states: “The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof.”

This language, of course, closely tracks the language of the citizenship clause of the 14th Amendment itself, to wit: “All persons born … in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The solicitor general, D. John Sauer, says that these 14th Amendment words do not mean what they plainly seem to mean. Sauer claims that the amendment does not in general citizenize American-born children of illegal aliens or of temporary visitors. Ditto for the 1952 statute, which, he claims, merely incorporates the amendment (as he misconstrues it). Sauer brazenly proclaims that birthright citizenship pivots on the status of an American baby’s parents and the domicile of these parents, and indeed on the precise standing of the baby’s mother and father – even though neither the 14th Amendment nor section 1401(a) uses the word “parent” or “parents” or “ mother” or “father” or “domicile.”

So says Sauer in 2026. But did anyone significant in 1952 read this statutory provision as Sauer now reads it? Sauer points to no one – except, perhaps, at pages 42-43 of his main brief, where he invokes one eccentric and conclusory author who in fact did not read the statute in precisely the same way Sauer now does. (The author, one Sidney Kansas, suggested with no support or analysis whatsoever that American-born babies of “transients or visitors” were not birthright citizens; but even Kansas, unlike Sauer, apparently embraced the birthright citizenship of babies born in the U.S. to foreigners on medium-term and long-term visas — for example, student visas and work visas.)

And on the other pan of the balance scale? First, there is the key fact that the Supreme Court in the notable 1898 case of Wong Kim Ark did not read the 14th Amendment’s words as Sauer now does. Here is what the court said, in sweeping language: “In the fore front … of the Fourteenth Amendment of the Constitution, … the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.” Sauer tries to dance around the point, but he is unable to quote a single sentence from this framework case that squarely supports the broad contours, much less the odd details, of Trump’s executive order.

By contrast, in the 1930s, 1940s, and early 1950s, countless notable figures who were linked to the enactment of the 1952 statute read Wong Kim Ark as confirming that the 14th Amendment citizenized American-born children of foreign parents even if these parents were here merely temporarily or indeed illegally. A landmark report prepared by the FDR administration in 1938 and transmitted to Congress was crystal-clear on this point: “It is the fact of birth within the territory and jurisdiction, and not the domicile of the parents, which determines the nationality of the child.” The report proposed a statute that was eventually enacted in 1940 and that was identical to its 1952 descendant on the birthright citizenship issue. The clause that became section 201 of the 1940 Act and section 301 of the 1952 Act – now codified as the above-quoted section 1401(a) – was, said FDR’s report,

in effect a statement of the common-law rule [of jus soli], which has been in effect in the United States since the beginning of its existence as a sovereign state . . .. It accords with the provision in the fourteenth amendment to the Constitution. . . . The meaning of the latter was discussed by Mr. Justice Gray in United States v. Wong Kim Ark. . . . This case related to a person born to parents who were domiciled in the United States, but, according to the reasoning of the court, . . . the same rule is also applicable to a child born in the United States of parents residing therein temporarily. In other words, it is the fact of birth within the territory and jurisdiction, and not the domicile of the parents, which determines the nationality of the child.”

The committee hearings on the proposed 1940 legislation similarly demonstrated a shared – indeed, unquestioned – understanding that this law simply codified the citizenship clause of the 14th Amendment as originally understood and as construed by the Supreme Court in Wong Kim Ark. One exchange involved Congress’ recognition “that persons who are born in the United States of alien parents and are taken by their parents to the countries from which the parents came and of which they [the parents] are nationals” are nonetheless U.S. citizens by virtue of having been born in the U.S. – period – because of “the constitutional provision that all persons born in the United States are citizens thereof,” which is “not a matter we [Congress] have any control over.”

Another exchange involved the potential extension of statutory citizenship to children born outside of the United States. In this congressional conversation, there was a general acknowledgement that “[i]n the United States, insofar as the question of citizenship is concerned, the doctrine of jus soli [law of the soil] applies.”

All of this was reinforced by discussion of yet another proposed provision in the 1940 Act, concerning foundlings. This provision said that “[a] child born of unknown parentage found in the United States, until shown not to have been born in the United States” was to be deemed a “citizen[] of the United States at birth.” The FDR report’s explanatory note made clear that the only relevant consideration was birthplace and that parentage was of no concern: “According to this provision a foundling who is first discovered in the United States is, in effect, presumed to have been born therein. But, if [and only if] proof is produced that such a child was born outside the United States, his title of citizenship of the United States jure soli is lost.”

“Legislative history” sometimes gets a bad name in court today, but none of the sound reasons for judicial skepticism of certain kinds of legislative history properly applies to the above-quoted passages. We are not appealing to an obscure committee report composed by congressional staffers after one house or both houses have enacted a bill. Nor are we pointing to low-visibility, inside-the-beltway arcana. Rather, we are highlighting – as strong evidence of statutory meaning – important statements from key elected officials in the late 1930s and early 1940s that were openly available to the American public for fully a dozen years before the enactment of the 1952 statute, which recodified the birthright citizenship clause of the 1940 Act verbatim.

What else did ordinary Americans have as general background to the 1952 Act?

They knew that nativist lawyers after the Pearl Harbor attack had sought a judicial ruling that American-born citizens of Japanese aliens were not proper birthright citizens. Informed Americans also knew that both a federal district judge in San Francisco in 1942 and then the U.S. Court of Appeals for the 9th Circuit in 1943 had laughed these proto-Sauers out of court. Crucially, the American public knew that both courts had expressly relied on Wong Kim Ark. Indeed, this 1940s case, Regan v. King, received journalistic coverage in every corner of America in newspapers large and small. In the Northeast, The New York Times on July 3, 1942, reported the district judge’s conclusion that Wong Kim Ark was good law and had been recently reaffirmed by the Supreme Court in Morrison v. California in 1934 and in Perkins v. Elg in 1939. In the Pacific West, the Oakland Tribune on July 2, 1942, likewise referenced the district court’s reliance on the Supreme Court’s 1898 ruling. In the Southwest and Mountain West, the Albuquerque Journal on July 3, 1942 quoted the district court’s holding that the issue “has been definitely decided by the Supreme Court” and the Salt Lake Telegram said much the same thing that day. In the Deep South, so did Greenville, Mississippi’s Delta Democrat-Times. In the Great Plains, so did the Tulsa Tribune.

Also, members of the Supreme Court in the 1940s made their own views known far and wide. For example, in one high-visibility case, Justice Robert Jackson opened his now-classic opinion by stating flatly that the famous petitioner, Fred Korematsu, “was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity.” Although Jackson did not command a majority in the Korematsu case, no one on the court disputed this notable statement. Indeed, Justice Hugo Black’s opinion for the court began by likewise describing Fred Korematsu as “an American citizen of Japanese descent.”

And then there is the unbroken practice of the executive branch during the 1940s. The consistent practice of this branch from 1940 to 1952 was to recognize as citizens anyone born within the United States, without regard to the identity or citizenship or loyalty of the child’s parents. (During the early part of that period, Robert Jackson, as Attorney General, was himself in charge of citizenship recognition.) Nor could one argue that the executive branch during this period was conferring citizenship on persons as a matter of grace, to persons beyond those entitled to it under the Constitution or the 1940 Act; the executive branch lacked then, and lacks today, constitutional authority to confer citizenship beyond the rules of the Constitution and valid federal statutes.

Sauer today points to no instances in which a person born in the U.S. from 1940 to 1952 (or since that time, for that matter) was denied citizenship simply because their parents were not citizens or green-card holders. Against this broad backdrop of public practice and public discourse, Congress in 1952 re-enacted verbatim the key clause of the 1940 statute, as this clause had been openly applied and discussed in the intervening decade.

Now turn to the text of section 1401(a) and compare it to other parts of the 1952 Act. As Akhil has detailed at pages 28-29 of his Barbara amicus brief, several other sections of this wide-ranging statute expressly speak of “parents” and “mothers” and “fathers.” But not section 1401(a). And the reason is clear: Parental status is generally irrelevant to section 1401(a). If section 1401(a) did in fact generally require that an American-born baby’s parents must be citizens or green-card holders, the obvious question would have arisen: which parent or parents? The mother or the father or both? In fact – and quite curiously – Trump’s executive order has different rules for mothers and fathers. But the 1952 Act says nothing about this in section 1401(a), in sharp contrast to other sections that do indeed focus squarely and expressly on parental status (for example in cases of children born overseas to American parents of various sorts).

Recall also the foundling provision of the 1952 Act, which recodified section 201(f) of the 1940 statute. As previously noted, this provision conferred citizenship on a “child of unknown parentage found in the United States, until shown not to have been born in the United States.” These words thus confirmed the ordinary irrelevance of parentage, focusing as they did solely on a foundling’s birth location, not her birth lineage. 

Consider now the status in 1952 of a baby born to an alien mother who was at the time of the baby’s birth married to a U.S. citizen. Imagine further that such a baby was in fact sired not by the mother’s spouse but by a man who was not a U.S. citizen. Under the law in place in 1952, this child would have generally been treated as a U.S. citizen if born in, say, France or Germany. But Sauer says this very same baby was not a statutory birthright citizen if born in the U.S. itself! Huh? (For an excellent discussion, see Professor Scott Titshaw’s eye-opening essay forthcoming in the Georgetown Immigration Law Journal.)  Sauer’s reading not only does violence to the text of section 1401(a); on this issue, as elsewhere, Sauer’s reading also makes a hash of the 1952 Act as a whole.

Even were Wong Kim Ark today thought by Sauer and his ilk to be erroneous, Congress plainly thought otherwise in 1952 and plainly legislated on that basis. That act remains in force today, and Trump must obey it. Period.