Telepeer

Susan Shelley: Ending birthright citizenship no longer a ‘lunatic fringe’ argument

April 5, 2026

When the Supreme Court heard oral arguments in the birthright citizenship case on Wednesday, the notable figures present in the courtroom included President Donald J. Trump and the ghost of Proposition 187.

Backed by then-Governor Pete Wilson, the 1994 initiative was approved by 59% of California voters, buried alive in litigation for the entirety of Wilson’s second term, and then killed off in 1999 by newly elected Governor Gray Davis.

Its ghost has haunted Republicans ever since.

Prop. 187 intended to end most taxpayer-funded public benefits to illegal immigrants. Even though a solid majority of California voters approved it, Republicans appeared to take from the experience the political lesson that they must never, ever try anything like that again.

But then in 2015, Donald Trump came down the escalator and, on the immigration issue, said the opposite of everything Republicans thought was necessary to win. He went up in the polls after every nationally televised debate.

Then he defeated two rows of consultant-advised, experienced Republicans and caused the cancellation of Hillary Clinton’s entire barge of fireworks.

Meet the ghost of Proposition 187. When 59% of California voters have a concern about the cost of providing public benefits to an unlimited number of people residing in the country unlawfully, that’s an apparition that will roam the earth.

In October 2018, as a “migrant caravan of people fleeing from violence in Central America” (that’s how NPR reported it) was approaching, President Trump gave an interview to “Axios” on HBO and said he was considering an executive order to end birthright citizenship.

NPR interviewed experts. “I think it’s kind of a lunatic fringe argument,” said an Alaska immigration lawyer who taught constitutional law at West Point.

But then the Biden administration’s open borders policy had the government throwing tax dollars at hotels and motels all across the country just to house the overflow. President Trump was re-elected and immediately followed through on his 2018 statement, signing an executive order titled, “Protecting the Meaning and Value of American Citizenship.” It ended automatic citizenship for children born in the U.S. to parents who are temporary visitors or are in the country unlawfully.

It was buried alive in litigation.

However, the Supreme Court agreed to hear the case, and on Wednesday morning it could no longer be said that the argument over birthright citizenship was on the “lunatic fringe.”

The legal argument turns on the meaning of a phrase in the Fourteenth Amendment, which was written in 1866 and ratified by the states in 1868: “Section 1. 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 argument is over the meaning of “subject to the jurisdiction thereof.” A parallel clause in the 1866 Civil Rights Act uses the words, “not subject to any foreign power.” The clauses were intended to reverse the effect of the Supreme Court’s infamous 1857 Dred Scott decision, which said Black people whose ancestors were brought to the U.S. and enslaved were not and could not become citizens.

Between then and now, there was an 1898 Supreme Court decision in U.S. v. Wong Kim Ark holding that a man born in San Francisco in 1873 to parents who were Chinese nationals was a U.S. citizen. Although the parents were subjects of the Emperor of China, they were “domiciled residents of the United States,” having “established and enjoyed a permanent domicil and residence therein at said city and county of San Francisco.”

Wong Kim Ark’s parents were not illegal immigrants. But certainly it’s true that millions of illegal immigrants in the country today have established and enjoy something very much like a “permanent domicil and residence.”

In 1995, the Pew Research Center estimated, the number of unauthorized immigrants in the United States was 5.7 million. The 1994 analysis of Prop. 187 by the state Legislative Analyst’s Office cited an estimate by the U.S. Immigration and Naturalization Service of roughly 1.6 million “unauthorized immigrants” in California, a number that had been “increasing by about 125,000 each year.” The LAO noted that “the amnesty granted by the federal 1986 Immigration Reform and Control Act legalized about 1.6 million former illegal immigrants in California.”

The LAO estimated that Prop. 187 would result in “annual savings of roughly $200 million to the state and local governments (primarily counties) due to reduced costs for public social services, health care and higher education.”

What are the numbers today?

In October, the Legislative Analyst’s Office reported that there were 1.7 million undocumented immigrants enrolled in Medi-Cal, the safety-net health insurance for low-income people. Medi-Cal now serves 14.5 million California residents at a total annual cost of $222 billion. A March report by the Bay Area Council Economic Institute estimated that 477,000 undocumented immigrants live in the Bay Area. An August report from the Pew Research Center estimated that “the number of unauthorized immigrants in the United States reached an all-time high of 14 million in 2023 after two consecutive years of record growth.”

In a January 2025 article, “Why the World is Giving Up on Birthright Citizenship,” the Mises Institute reported that in 1968, the United Kingdom limited citizenship by birth to those who could prove they had a parent or grandparent who “possessed British citizenship.” Ireland abolished unrestricted birthright citizenship in 2004, and “nearly all member states of the European Union require that at least one parent be born in the country” to obtain automatic citizenship. Australia did away with birthright citizenship in 1986, New Zealand in 2006.

It’s not unreasonable to raise concerns about “birth tourism” producing significant numbers of future voters raised in hostile nations, or about the unlimited growth of social safety-net costs that come with granting citizenship to the children of millions of newly arrived illegal immigrants.

The president’s executive order has placed these issues squarely before the public. Whatever the Supreme Court decides, the ghost of Proposition 187 isn’t going away quietly.

Write Susan@SusanShelley.com and follow her on X @Susan_Shelley

Orange County Register

News Details

Susan Shelley: Ending birthright citizenship no longer a ‘lunatic fringe’ argument

Leave a Reply Cancel reply

News

CONTACT INFO

QUICK LINKS

SERVICES

CURRENT NEWS