The Trump administration is relying on legal arguments developed by Confederate officers and 19th-century xenophobes to challenge birthright citizenship in a Supreme Court case expected to be decided by summer, drawing criticism from legal scholars who say the administration is recycling deeply racist historical precedents.
The administration’s Supreme Court brief cites Alexander Porter Morse, a Confederate officer and Louisiana attorney who advocated for legalized segregation in the 1896 case that established the “separate but equal” doctrine that propped up Jim Crow laws, reported the Washington Post.
“The Trump administration has tapped Morse as an authority in its push to upend long-settled law that virtually everyone born in the United States is a citizen,” the Post reported. “Over a century ago, Morse was among a trio of thinkers who spearheaded a failed effort — steeped in anti-Black and anti-Chinese racism — to erase birthright citizenship. The Trump administration is reviving their arguments to make its case today, some legal scholars say.”
The administration also relies on arguments from Francis Wharton, a legal scholar who wrote that Chinese immigrants were insufficiently “civilized,” and George D. Collins, a San Francisco attorney whose career ended in scandal.
Lucy Salyer, a University of New Hampshire history professor, expressed concern about the administration’s approach. “If you know the history and the broader context of what they were trying to achieve, it does ring alarm bells,” she said.
The case centers on the 14th Amendment’s Citizenship Clause, which grants citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The Trump administration argues this provision does not apply to children born to undocumented immigrants or those on temporary visas. If the Supreme Court agrees, hundreds of thousands of children could potentially become stateless.
The Chinese American Legal Defense Alliance argues in a court brief that the administration is citing arguments “built on a racist foundation.” The alliance identified 19 instances where the government’s brief repeats the same treatises, cases, and legislative history cited in the failed 1898 Wong Kim Ark case, which established birthright citizenship as law.
Solicitor General D. John Sauer argues that birthright citizenship incentivizes illegal migration and presents national security concerns. The administration contends that children’s citizenship should depend on parents’ nationality and domicile status rather than birthplace alone.
University of Michigan law professor Sam Erman noted the striking parallels between historical and current arguments. “The government argument to a large extent relies on Morse and Wharton and people who are repeating what they said uncritically,” Erman said.
Some legal scholars defend the administration’s position. Ilan Wurman of the University of Minnesota argued that finding racist figures among advocates for a particular legal position doesn’t make the entire argument racist.
The Supreme Court consolidated multiple cases challenging Trump’s executive order halting citizenship documentation for children of undocumented immigrants and temporary visa holders. Legal experts anticipate the Trump administration faces a difficult path to victory, given over a century of established precedent.
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