Trump isn’t rewriting the 14th Amendment; he’s applying the law as it is, based on its plain language and the Supreme Court’s existing precedent. //

The 14th Amendment — ratified after the Civil War and ensuring that former slaves were U.S. citizens — provides that “[a]ll 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 plaintiffs focus on the first part, but barely glance at the second, arguing that, with few exceptions (such as the children of foreign diplomats in the United States), anyone born in the United States is “subject to its jurisdiction,” simply by virtue of being within its borders.

They do this by relying almost entirely on United States v. Wong Kim Ark, an 1898 U.S. Supreme Court opinion that the plaintiffs get hopelessly wrong. In Wong, the court held that a man born in San Francisco to Chinese immigrants was a U.S. citizen under the 14th Amendment. Omitting some key facts, the plaintiffs argue this means that all children born in the United States of all immigrant parents, with the aforementioned very rare exceptions, automatically are U.S. citizens. Even a cursory read of the opinion, however, shows that the Supreme Court ruled nothing of the sort.

Wong was born in California and lived his entire life in the United States, until he took two trips to China to visit family as an adult. The first time he returned to the United States, he was admitted through customs as a U.S. citizen. A few years later, after visiting China a second time, he was denied reentry after a customs official concluded that he was not a citizen, because his parents were not U.S. citizens when he was born here.

SCOTUS sided with Wong, but for a very important reason the plaintiffs fail to mention: Wong’s parents were legal immigrants to the United States. The entire foundation of the plaintiffs’ argument — that SCOTUS has already upheld birthright citizenship for the children of illegal immigrants by this decision — is therefore completely and obviously wrong.

In rendering its opinion, SCOTUS dove deep into the meaning of “subject to the jurisdiction thereof.” What they found, tracing back hundreds of years through English common law, is that the phrase is rooted in a mutual relationship of “allegiance and protection” between the individual and the sovereign (historically a king, but the nation here). Children “born in the allegiance,” and therefore citizens entitled to “protection” at birth, included children born to subjects of the king, as well as children born to “aliens in amity” — that is, aliens lawfully “domiciled” there with the king’s consent. Notably, the court found that this did not extend to the children of aliens in “hostile occupation of part of our territory.”

Consent is the operative word. In ruling for Wong, the Supreme Court made clear that the United States has a say in who is subject to its jurisdiction, noting that noncitizens like Wong’s parents are “entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here” (emphasis added). In Wong’s case, this meant that the 14th Amendment granted him citizenship because he was: (1) born in the United States; and (2) subject to its jurisdiction, due to the fact that his parents were lawful immigrants permitted by the United States to reside here at the time he was born.