The Fight for the Future of Birthright Citizenship

The U.S. Supreme Court’s decision in Trump v. Barbara, the Court’s second encounter with President Donald J. Trump’s Day One executive order purporting to end the constitutional guarantee of birthright citizenship, should have ended debates about the Fourteenth Amendment’s Citizenship Clause. To its credit, Chief Justice John G. Roberts, Jr.’s, opinion for the Court tried to do that. It did not sidestep the constitutional question the case posed—say, by finding the executive order unlawful under statutes defining citizenship but declining to reach the question of the order’s constitutionality. It was unequivocal in its conclusion that both history and constitutional text made clear that the Citizenship Clause of the Fourteenth Amendment was intended to apply to every child born in the United States, regardless of the citizenship status or intentions of that child’s parents—subject to narrow exceptions for the children of foreign ministers, foreign soldiers, and members of Indian tribes. It rejected efforts to smuggle into the Citizenship Clause’s proviso “subject to the jurisdiction thereof” a series of unstated qualifications that would have excluded children whose parents were either unlawfully or only temporarily present in the United States. Rather, Chief Justice Roberts’s opinion for the Court concluded that “the Citizenship Clause uses jurisdiction in its ordinary sense—referring to the power of the United States to govern those within its territory.” Simply put, under the Fourteenth Amendment, “a child born on American soil and subject to American law was made an American citizen.” Full stop.

The majority opinion, at a tight 26 pages, focused primarily on history, constitutional text, and the Court’s own precedents. But it conspicuously neglected to discuss the consequences that would have flowed from upholding President Trump’s executive order. This oversight was not a reflection of the arguments presented to the Court. The attorney representing the challengers emphasized in her opening that under the government’s theory, “the citizenship of millions of Americans, past, present, and future, could be called into question.” She later made clear that on its own logic, the “government’s rule … would exclude the children of all foreign nationals.” The point was clear: A ruling for the Administration would not only defy clear constitutional command; it would also be a recipe for chaos.

Chief Justice Roberts’s choice to avoid engaging with consequences stood in sharp contrast to the dissenting opinions, which devoted considerable attention to what they viewed as the on-the-ground effects of birthright citizenship. This was particularly true of Justice Samuel A. Alito, Jr.’s, dissent, which began by invoking the canard of “birth tourism” and later referenced the “grotesque result” of extending citizenship to “a child born here to a birth tourist” while “foreigners who wish to immigrate lawfully must sometimes wait for many years.” He described the majority’s ruling as creating “a powerful incentive to enter or remain in this country illegally” and then went further, charging the birthright citizenship rule with having dangerous “national-security implications.” The dissent closed with an outlandish hypothetical featuring an individual from a “strategic adversary or enemy of the United States” traveling to the United States to give birth and then bringing the U.S. citizen child back to her home country, “inculcat[ing]” the child with “hatred of this country” and allowing that U.S. passport holder to later “plot[] to harm this country.” Justice Clarence Thomas’s dissenting opinion mostly advanced what it took to be the proper understanding of the Fourteenth Amendment. But Justice Thomas too suggested that an understanding of the Fourteenth Amendment that recognized birthright citizenship “encouraged ‘birth tourism.’” His opinion decried the “large numbers of children … born in the United States each year to parents who are temporarily present here in order to obtain citizenship for their children.”

Reasonable minds can differ about the propriety of explicitly engaging with consequences in Supreme Court opinions. But in this case, the majority’s failure to rebut some of the dissents’ extreme and alarmist claims—and its failure to highlight the catastrophic consequences that would flow from the dissents’ approach—may serve to advance the campaign to turn the dissents into binding law. That is especially likely because of Justice Brett Kavanaugh’s decision to throw his support behind the dissenters’ constitutional vision. Although Justice Kavanaugh would have invalidated the executive order on the grounds that it violated a 1952 statute, he also went out of his way to offer his view that the order did not violate the Fourteenth Amendment. That made the vote on the order’s constitutionality a razor-thin 5-4.

The closeness of the vote was not lost on the Trump Administration, with senior officials rushing to cast the narrow loss as a victory of sorts. Vice President J.D. Vance, appearing on Fox News, noted that “a lot of legal experts expected this case to go the wrong direction by seven to two, or even eight to one.” He continued: “The fact that this case was a 5-to-4 decision effectively means that the concept of birthright citizenship, which is an absurdity to the 14th Amendment, that concept is hanging by a thread.” Vice President Vance made clear that the Administration would continue to press its vision, arguing in the same Fox interview that “We’ve got to keep fighting … because we actually have an opportunity to reverse this decision.”

Although Vice President Vance seemed to believe that all the Administration needed was one additional vote, it is far from clear that the dissenters would allow the full implementation of the order. Indeed, freed from any obligation to produce a workable rule, Justice Thomas merely suggested that “many” applications of the executive order would be lawful. The logic of his dissent would suggest it could not be applied to children born in the United States to parents who have been present here for an extended period and intend to stay. For his part, it appears that Justice Alito would create “an ad hoc exception for those whose parents have ‘done everything within their power … to become Americans.’” It is not remotely clear how either rule would work in practice—or be administered in hospitals and by state and local governments.

It was an error for the majority to fail to press these points, particularly since the legal and political right seemed to shift immediately to continuing the fight. Indeed, the rhetoric from supporters of the executive order—pledging to continue advocating their understanding of the Citizenship Clause, and linking the issue to future Supreme Court nominations—called to mind the response to the Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, in which the Court rejected an effort to overturn Roe v. Wade. The partial Casey concurrence of Justice Harry Blackmun, who had authored Roe, was clear about the precariousness of the result. Alluding to upcoming Supreme Court departures, including his own, he wrote that “I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.”

Both the majority opinion and the dissenting justices in Trump v. Barbara have a clear view of the correct constitutional rule when it comes to U.S. citizenship. The dissenters, led by Justice Thomas, have something else on their side: an account—mistaken though it may be—of the dangers posed by those who challenge their vision of the reach of the Fourteenth Amendment. Time will tell which carries the day. But what is clear is that legal and political resources will need to be marshaled in support of the view that the meaning of birthright citizenship is as broad as the constitutional text makes clear—since the mobilization in support of the opposing position is already well under way.

Kate Shaw is a law professor at the University of Pennsylvania Carey Law School.