Immigration Law

Expert: Supreme Court Would Uphold Birthright Citizenship Today

PolitiFact, Sept. 18, 2015 - "[A] majority of legal scholars said [Sen. Rand] Paul’s focus on the facts of this particular 1898 case leaves out context.  They argue that the majority’s ruling offered a ringing endorsement of birthright citizenship -- a stance that runs contrary to the idea that the justices intended to hand down a carefully restrained and limited decision.  "In Wong Kim Ark, the Supreme Court relied on common law, going back to cases decided in England before the American Revolution, to hold that any person born on U.S. soil and subject to the jurisdiction of the United States is a U.S. citizen," [Cornell law professor and LexisNexis expert author] Yale-Loehr said. "I am confident that if a case arose involving a child born in the United States to undocumented parents, the Supreme Court would rule the same way."  Scholars who share this view add that the Supreme Court has had ample opportunity to overturn its precedent in the succeeding decades but has never done so. Finally, these scholars say, more than a century of longstanding practical precedent should also count for something.  This is not simply a standoff between left-leaning and right-leaning scholars.  John Yoo, a conservative University of California-Berkeley law professor, has taken a high-profile stance against the position Paul articulated.  "The Court read the 14th Amendment to recognize the existing American practice of granting citizenship based on birthplace," Yoo wrote. "It saw no support for a new exclusion of the children of aliens, (writing) ‘The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.’ "

Cornell law professor and LexisNexis expert author Stephen Yale-Loehr