This article was originally published by The 19th.
A federal judge on Thursday temporarily blocked President Donald Trump’s executive order restricting birthright citizenship to babies born on U.S. soil. The order is one of several efforts by the administration to block migrants’ entry into and residence in the country.
The executive orders and directives include canceling flights to the United States for refugees already approved to legally enter the country. They also do away with protections for “sensitive zones,” which previously prevented immigration officials from arresting undocumented immigrants in places like schools, churches and women’s shelters.
As legal battles over Trump’s executive orders play out, here’s what to know about the history of birthright citizenship.
What is birthright citizenship?
Birthright citizenship was first established in 1868 by the 14th Amendment of the United States Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The policy was the result of African Americans pushing for decades to be recognized as full citizens and part of a trio of amendments — the 13th, 14th and 15th — that ended U.S. slavery and established citizenship and voting rights for some people of color.
In the decade before the amendment, the U.S. Supreme Court had issued a landmark ruling in Dred Scott v. Sandford stating that people of African descent, whether they were free descendants of slaves or enslaved themselves, could not be U.S. citizens.
“What’s important to remember about Dred Scott is that its impact on the ground in the daily lives of African Americans is very limited,” historian Martha S. Jones said in a 2018 interview with Democracy Now. “Very few courts are willing to enforce the literal terms of Dred Scott in the cases that they hear, state legislatures are not prepared to defer to the court’s reasoning, and African Americans — even in the face of the devastating rhetoric in Dred Scott — continue to wage a campaign for citizenship into what then becomes the era of the Civil War.”
Those efforts ultimately led to the right to citizenship being enshrined in the Constitution for all people born in the United States except children born to foreign diplomats. Initially, the law also did not include children born to foreign military members or Native American children, but these have since been changed.
The Supreme Court upheld birthright citizenship in the 1898 case United States v. Wong Kim Ark. Justices affirmed the right to U.S. citizenship for a man who was born in California to parents who were Chinese citizens. This decision confirmed that children born in the country to immigrant parents have U.S. citizenship.
“There are moments when the Constitution is vague. This is not one of them,” Harold Solis, co-legal director of Make the Road New York, said in a Tuesday Zoom call hosted by the American Civil Liberties Union (ACLU). “If a president can unilaterally restrict birthright citizenship today, what constitutional rights and who else’s citizenship might be reinterpreted away tomorrow?”
What does Trump’s order say and how will it affect people?
Trump’s executive order states that the 14th Amendment excludes birthright citizenship from “persons who were born in the United States but not ‘subject to the jurisdiction thereof.’” The administration interprets that statement to bar citizenship from children born in the United States to a mother who is living in the country without authorization and a father who is not a citizen or permanent resident, as well as children born in the country to a migrant mother who has temporary legal status — including a visa — and a father who is not a U.S. citizen or permanent resident.
