This morning, the Supreme Court issued its long-anticipated opinion on birthright citizenship in Trump v. Barbara, docket no. 25-365. The Court held that children born in the United States to parents unlawfully or temporarily present are “subject to the jurisdiction” of the United States and are citizens at birth under the 14th Amendment’s Citizenship Clause, and also struck down President Trump’s Executive Order 14160, “Protecting the Meaning and Value of American Citizenship.”
We expected the Court to strike down the executive order for any number of reasons, especially since the lower courts had uniformly rejected the president’s position, and we were surprised that some commentators thought otherwise.
There are two parts to this fascinating decision.
On overturning the executive order, we think the Court’s majority of six got it right. Just as the authors of the 14th Amendment in no way thought birth tourism would be included in their birthright citizenship provision, in no way did the Framers of the Constitution think that a president had the power to sweep away federal statutes and judicial precedents with the stroke of a pen. In our system, presidents may indeed enjoy the powers of a unitary executive branch, but those powers are still constrained within the four walls of the Constitution.
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We generally agree with Sarah Isgur’s observation that it is oversimplistic to view this Court as a simple 6-3 conservative-progressive Court. Rather, this is a 3-3-3 Court, with an x-axis of ideology (progressive vs. conservative) and a y-axis of institutionalism (order-loving pragmatists vs. "chaos agents" or doctrinaire originalists). Each justice is somewhere on each of these two axes.
So, the fact that Roberts, Barrett and Kavanaugh didn’t overturn birthright citizenship doesn’t mean they aren’t conservative. It means they are less willing to use the Court to impose change or require especially clear reasons to do so (Dobbs).
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On the underlying constitutional meaning of the citizenship clause, we disagree with the Court’s majority of five in their defense of birthright citizenship. In this case, while six justices agreed that the executive order was invalid, only five justices defended the birthright citizenship policy. Four justices challenged the birthright citizenship policy, and we think they’re right on the merits.
There is no chance that the 14th Amendment was intended to make citizens of the children of illegal immigrants, or birth tourists. Even defenders of the modern rule generally do not argue that the framers of the 14th Amendment specifically had illegal immigration or birth tourism in mind.
Takeaways: There’s a reason we have nine justices on the Court, and not just one. Nobody is perfect; even Justice Scalia got at least one of his majority opinions very, very wrong (Employment Division v. Smith, 1990). So, conservatives should temper their anger over not getting their way—there were intelligent, conservative textualists and originalists on both sides of this decision.
It was always unlikely that the Court was going to issue a sweeping decision overturning the prevailing interpretation of the 14th Amendment, because of the two axes we described earlier.
It’s important to remember that the Supreme Court is never the final say on any matter of controversy. The political process always has the final say. The political process can make, change or eliminate laws; amend the Constitution; elect the people who nominate and confirm Supreme Court justices; and in extreme circumstances, even impeach justices. Only the Court itself has asserted that it has the final say on constitutional issues.
Justice Kavanaugh’s concurrence makes it plain that, in his view, Congress may have statutory room to change birthright citizenship policy, though Congress has not done so. It still can. And that’s not the Supreme Court’s job. That’s our job.