As Supreme Court Weighs Birthright Citizenship, SF Advocates Are Ready to Stand Up

Advocates from San Francisco will be at the U.S. Supreme Court on Wednesday to defend the long-standing principle that babies born on U.S. soil are U.S. citizens, regardless of their parents’ immigration status, as justices hear a case with massive implications for birthright citizenship.

Despite 128 years of Supreme Court precedent dating back to a case out of San Francisco, the justices agreed to hear arguments in Trump v. Barbara. The Trump administration is seeking to defend a January 2025 executive order from the president stating that, unless a child has a parent who’s a U.S. citizen or lawful permanent resident, they are not a U.S. citizen by birth.

Every lower court that has weighed in, including the 9th U.S. Circuit Court of Appeals in San Francisco, has ruled Trump’s order unconstitutional.

The precedent behind birthright citizenship goes back to a 1898 ruling in the case brought by San Francisco-born Wong Kim Ark, who was barred from re-entry under the Chinese Exclusion Act after a trip to visit family in China, even though he carried paperwork attesting to his U.S. birth.

In their decision in Wong’s favor, the justices pointed to the citizenship clause of the 14th Amendment, added to the Constitution in 1868 after the abolition of slavery, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Writing for the majority, Justice Horace Gray said the amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory … including all children here born of resident aliens.”

Overturning that principle would create a bureaucratic nightmare and threaten the very fabric of American society, according to Winnie Kao, senior counsel with San Francisco’s Asian Law Caucus, who is an attorney of record on the Barbara case.

“It would be a radical departure from over 120 years of precedent and understanding,” said Kao, whose organization will have attorneys in court on Wednesday alongside the ACLU and others. “It would be really hard for the public to understand and, I think, to accept.”

Since Trump’s executive order, Kao said her office has been fielding “powerful and upsetting” questions from people who are either undocumented or in the U.S. on temporary work or student visas.

“How do you prove citizenship for your newborn when it’s not based on a birth certificate anymore?” she said. “Parents are calling us, wondering if their baby’s going to be subject to deportation … and what will statelessness mean for my baby?”

One person who will be closely watching the oral arguments at the Supreme Court on Wednesday is Norman Wong. An East Bay resident and retired carpenter, Wong, 76, is the great-grandson of Wong Kim Ark.

Wong was born in San Francisco but didn’t grow up knowing the story of his ancestor or the role he played in U.S. history. He said when he first learned about Wong Kim Ark’s case 25 years ago, he thought it was “a curiosity of history” because birthright citizenship was settled law.

“I grew up knowing that I was American. All the kids that I ran around with, they knew they were American. Why? They were born here,” he said. “It’s like assuming every time you breathe in and out, you get air. It was part of your whole being. We were proud to be American.”

Wong plans to be outside the Supreme Court on Wednesday to remind people of his great-grandfather’s legacy and warn them that the rights he stood for can’t be taken for granted.

After Trump’s executive order, California immediately filed suit along with 23 other states, the city of San Francisco and the District of Columbia. While that case is not before the Supreme Court on Wednesday, Attorney General Rob Bonta has filed a “friend of the court” brief in the Barbara case.

“Every branch of government, across Administrations, has affirmed birthright citizenship, and the U.S. Supreme Court should uphold that right,” Bonta said. He added that California stands to lose federal funding for key health and education programs if nearly 25,000 babies born in the state each year lose the right to citizenship because of their parentage.

The effort to repeal birthright citizenship is part of a broader campaign by the Trump administration to restrict immigration and the rights of immigrants, including increasing arrests and deportations, halting refugee admissions, stripping temporary legal status from people fleeing war and instability, and invoking a travel ban against 39 countries.

The Trump administration’s argument restricting birthright citizenship hinges on the 14th Amendment clause, “and subject to the jurisdiction thereof.” Many legal scholars argue that simply means people who were subject to the laws of the United States.

But U.S. Solicitor General John Sauer has asserted that the clause promises citizenship only to people who are “completely subject” to the U.S. and owe “direct and immediate allegiance” to the government.

In legal filings, Sauer said the Wong Kim Ark decision has been read too generously and does not apply to the children of undocumented immigrants and people in the U.S. temporarily because that “degrades the meaning and value of American citizenship.” He wrote that that interpretation has “incentivized” illegal immigration and “birth tourism” by people who want to gain a toehold to a life in the U.S.

Wong, whose great-grandfather’s case established the bedrock principle, said he considers Trump’s executive order limiting birthright citizenship a first step in a larger effort to chip away at civil rights and the rule of law in this country.

“We have to stop it,” he said. “We need to be a principled people — with clear laws and clear ideas of who we are.”

Wong said he’s watched that erosion accelerate over the past 15 months, culminating in the shooting deaths this winter of two Minneapolis protesters by immigration agents.

He sees parallels between the bravery of his ancestors facing down anti-Chinese bigotry in the 19th century and Renee Good and Alex Pretti standing up for immigrants today.

“They weren’t violent. They didn’t do anything that deserved their lives. … We all should stand up, because two people died for all of us,” Wong said. “Are we just going to let it happen? Or are we going to stand up? Wong Kim Ark, he stood up.”