The first lawsuit filed to stop the Birthright Citizenship EO is just bad. You can read it here, but please allow me to dismantle some of the more egregious arguments.

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oag.ca.gov/system/files/a…

No, actually, that’s not what Wong Kim Ark held. It considered the question of whether a child born in the U.S. to lawfully present and permanently domiciled parents was a U.S. citizen, and held that the U.S.-born children of this narrow and specific subset of noncitizen parents is, indeed, a citizen. Importantly, at the time, the Chinese Exclusion Acts meant both that Chinese subjects couldn’t immigrate to the U.S. and those who (like Wong Kim Ark’s parents) had long been lawfully present in the U.S. couldn’t become naturalized citizens. Ever. The Court in essence is dealing with a situation where federal law created a permanent race-based barrier to citizenship and a class of lawful permanent residents relegated to perpetual alienage throughout subsequent generations. This is almost an identical scenario to the situation of the U.S.-born descendants of African slaves post-Dred Scott, which Congress was specifically trying to rectify with the CRA and 14th Amendment. But Wong Kim Ark does not stand for the premise that all U.S.-born children of all immigrants under all circumstances are automatically citizens. Nor does it mean that the Court held that the 14th Amendment adopted the full scope of pre-Dred Scott common law jus soli. In fact, it *can’t* mean that, given the court’s repeated emphasis on the lawful and permanent domicile of Wong Kim Ark’s parents, which is utterly irrelevant under the common law. A true common law opinion would have said, "he was born on U.S. soil, his parents aren’t diplomats or part of some invading army, so duh guys he’s a citizen."

This is also why constitutional scholars for decades after Wong Kim Ark continued saying the same thing as Trump’s EO says today - it still doesn’t apply universally to every other class of immigrant. See, e.g., a comment in the Yale Law Journal immediately after Wong Kim Ark that acknowledges "in this country, the alien must be permanently domiciled," even though under English common law, mere temporary sojourn was sufficient.

This is only true if history starts in the early 20th century. But it doesn’t. In the decades following the ratification of the 14th Amendment, the federal government repeatedly articulated a view similar to that espoused in Trump’s EO, and acted accordingly.

As just a few examples, in 1885 Secretary of State Thomas Bayard instructed federal officials not to consider a U.S.-born man to be a U.S. citizen because his German parents were never permanent U.S. residents and returned with the child to Germany when he was two years old. He was therefore, at the time of his birth, “subject to a foreign power” and not “subject to the jurisdiction of the United States.”

Earlier that year, then-Secretary Frederick Frelinghuysen similarly instructed officials to deny a man a U.S. passport despite his birth on U.S. soil, because his German father brought him back to Germany as an infant and raised him there. While the man’s father eventually returned to the United States and became a naturalized citizen, the man himself continued to reside in Germany. Why? Because “the fact of birth [in the United States], under circumstances implying alien subjection, establishes of itself no right of citizenship.”

In 1890, the Secretary of the Treasury issued an opinion denying citizenship for the child of a would-be immigrant who’d not yet "landed" but was being held on a ship in New York Harbor while awaiting immigration approval. The mother had been allowed to give birth and receive treatment at a New York hospital. Nonetheless, they were both deported as non-citizens, and the case was distinguished from that of an immigrant mother who’d "resided in this country a considerable time before her child was born."