The Long Odds of Undoing Birthright Citizenship
The legal website Just Security maintains a “litigation tracker,” chronicling all the lawsuits filed against the second Trump Administration. On Wednesday morning, that tally stood at a hefty seven hundred and thirty-four, with cases ranging from the President’s immigration policies to his dismantling of disfavored agencies to his effort to punish law firms to his ban on transgender athletes in women’s sports. Each of these is important in its own way, but none more so than the challenge taken up on Wednesday by the Supreme Court, to the legality of Executive Order 14160, “Protecting the Meaning and Value of American Citizenship.” Issued in the first hours of his first day back in office, the order is Donald Trump’s bid to abolish the long-standing rule that, with narrow exceptions, citizenship attaches automatically to those born on U.S. soil. By executive fiat, Trump would eliminate the guarantee of birthright citizenship for children whose parents are in the country without legal authorization or on a temporary basis—a position once considered so fringe that he shied away from it during his first term. His edict contravenes the language of the Constitution, the high court’s own rulings, legislation passed by Congress, and the consistent practice of previous Presidents. As Trump himself seems to recognize, it is difficult to imagine that the Supreme Court—even this Supreme Court, with its conservative super-majority—will let this order stand, and the tenor of the two-hour-plus oral argument seemed to bear that out. If the questions from the conservative Justices offer a reliable guide to their thinking, the mystery is not so much whether Trump will lose but how resoundingly.
In a physical embodiment of the constitutional clash, Trump attended the birthright-citizenship arguments in person, the first President in history to do so. That made for riveting inter-branch theatre, especially since Trump, infuriated by the Court’s rejection of his emergency tariffs in February, has denounced the Court as “STUPID” and “disloyal to the Constitution.” Two of the Justices he appointed, Neil Gorsuch and Amy Coney Barrett, defied him in the tariffs case; he called them “fools” and an “embarrassment to their families.” This is, perhaps, not the best way to make friends and influence Justices. But Trump’s presence—he left shortly after Solicitor General D. John Sauer finished presenting the government’s case—is best understood as posturing for the base.
With the birthright case, Trump v. Barbara, the Supreme Court faces the most important test of this dangerous Administration. Will a supposedly originalist Court ignore the meaning of the constitutional text? Will a supposedly conservative Court allow a President to trample on the separation of powers, ignoring precedent and upstaging Congress? Equally important, will it preside over a revolutionary change in the national character, one that would be as impossible to administer as it would be unwise to implement? As Cecillia Wang, the legal director of the American Civil Liberties Union and herself a beneficiary of birthright citizenship, told the Justices, “Ask any American what our citizenship rule is and they’ll tell you everyone born here is a citizen alike. That rule was enshrined in the Fourteenth Amendment to put it out of the reach of any government official to destroy.” Demographers predict that eliminating birthright citizenship would affect two and a half million children in the course of a decade, creating a permanent underclass exposed to deportation and with curtailed access to education, jobs, and benefits.
For the Trump Administration, this is less a bug than a feature: Sauer argued, in his opening statement, that birthright citizenship “demeans the priceless and profound gift of American citizenship,” “operates as a powerful pull factor for illegal immigration,” and “has spawned a sprawling industry of birth tourism, as uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the United States.” Chief Justice John Roberts, returning to the last point, asked Sauer a seemingly friendly question about how significant a problem that was. Sauer eagerly seized the moment to cite estimates that 1.5 million babies have been born to “birth tourists” from China alone. Then the Chief Justice zoomed in on his fundamental point: “Having said all that, you do agree that that has no impact on the legal analysis before us.” Sauer responded, “We’re in a new world now . . . where eight billion people are one plane ride away from having a child who’s a U.S. citizen.” To which the Chief Justice retorted, “Well, it’s a new world. It’s the same Constitution.”
The first sentence of the Fourteenth Amendment of that Constitution adopted following the Civil War, in 1868, forms the centerpiece of the case: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The Amendment was designed to write the concept of birthright citizenship into law, and to undo the damage inflicted by the Supreme Court’s ruling eleven years earlier in Dred Scott v. Sandford, which denied citizenship to anyone of African descent. The immediate question before the Court is what exceptions were meant by the clause “subject to the jurisdiction thereof.” The answer, at least for most mainstream scholars, is clear: the intended carve-outs, based on English common law, involved children born to foreign diplomats or occupying armies; in the United States, the sovereign status of Indian tribes meant Native American children were excluded as well. (Congress explicitly granted citizenship to Native Americans in 1924.) The Trump Administration contends that “subject to the jurisdiction thereof” covers a far broader category: anyone not authorized to remain in the country permanently. This contention met with considerable resistance among the Justices. “I’m not sure how you can get to that big group from such tiny and sort of idiosyncratic examples,” Roberts told Sauer.
Roberts’s point is well taken, and the debates surrounding the ratification of the Fourteenth Amendment do not support the Administration’s expansive interpretation. For example, during the debate over the amendment, Senator Edgar Cowan, of Pennsylvania, asked, “[I]s it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race? Are they to be immigrated out of house and home by Chinese? I should think not.” Senator John Conness, of California, said that Cowan’s interpretation was correct: “The children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.” In the arguments on Wednesday, Justice Sonia Sotomayor asked, “What do we do with those debates and the fact that the proponents of both acts”—the Fourteenth Amendment and a predecessor statute, the Civil Rights Act of 1866—“said everyone who’s born in the U.S. will be citizens?”
The central precedent interpreting the Citizenship Clause is the 1898 decision in United States v. Wong Kim Ark, involving a man born in California to Chinese parents who were not citizens—they could not be, under the terms of the Chinese Exclusion Act. After Wong visited China, he was denied reëntry to the United States on the ground that he was not a citizen. The Justices disagreed. “The Amendment, in clear words and in manifest intent, includes that children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States,” the Court said. “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” The Trump Administration seizes on the decision’s references to domicile, arguing that, except for those with green cards, foreigners with authorization to live in the U.S. cannot be “domiciled” in the United States because they expect to be here only temporarily; meanwhile, in the Administration’s telling, those here without any authorization “lack the legal capacity to establish domicile here.” This has things more than a little backward—as Justice Elena Kagan noted that undocumented migrants frequently intend to remain for as long as possible. This focus on domicile omits the fact that the question never came up in the debates over the Fourteenth Amendment; it also ignores subsequent Supreme Court rulings in which the Court reaffirmed that children of those here illegally were nonetheless citizens. In one 1957 case, the Court said that a U.S.-born child of parents who overstayed their permitted time in the country was “of course, an American citizen by birth.” In a 1985 case involving a Mexican couple smuggled into the country illegally, the Court described their two “citizen children” without any indication that status was open to debate.
But some conservative Justices—and, notably, Kagan—acknowledged that the Wong Kim Ark decision did use the term “domicile” repeatedly. “It appears in the opinion twenty different times, and including in the question presented and in the actual legal holding,” Roberts told Wang, the legal director. “Isn’t it at least something to be concerned about?” Kagan asked, “What are those twenty domicile words doing there?” Still, the Justices wrestled with Sauer’s interpretation of the case. “I’m not sure how much you want to rely on Wong Kim Ark,” Justice Neil Gorsuch told him.
Of all the Justices, Samuel Alito seemed most inclined in the Administration’s direction. “What we’re dealing with here is something that was basically unknown at the time the Fourteenth Amendment was adopted, which is illegal immigration,” Alito observed. But others of the Court’s conservatives expressed reservations. Justice Amy Coney Barrett continually questioned how “domicile” would be determined, if that is, in fact, the test of birthright citizenship. How, she asked, would authorities evaluate the citizenship of “foundlings,” whose parentage is unknown, or deal with children born in the United States to victims of sex trafficking? “If they were going to invent an entirely new kind of citizenship, like an American brand, why wouldn’t we have seen more discussion of that in the debates?” she asked Sauer. Gorsuch made similar points about the difficulty of determining domicile as a test of citizenship: “I mean, would we use contemporary sources on what qualifies as domicile in a state, or do we look in 1868, and do we have to do this for every single person?”
Gorsuch noted that one of the dissenters in Wong Kim Ark, Justice John Marshall Harlan, had given a lecture after the ruling in which he posed the example of English parents who travel to Hot Springs to treat their gout and have a child while there. “Is that child a citizen of the United States, born to the jurisdiction thereof, by the mere accident of his birth?” Harlan asked. He said he believed that was not correct “but I was one of the minority, and of course I was wrong.” “What do you do with that?” Gorsuch asked Sauer. Justice Brett Kavanaugh, who spoke relatively little, asked about immigration laws, enacted in 1940 and 1952, that accepted the common understanding that Wong Kim Ark had established birthright citizenship for the children of migrants, regardless of domicile. “One might have expected Congress to use a different phrase if it wanted to try to disagree with Wong Kim Ark,” Kavanaugh said. “Yet Congress repeats that same language knowing what the interpretation had been, so how are we to think about that?”
Making predictions on the basis of oral argument is always a risky endeavor. This is an undoubtedly conservative Supreme Court, one that is inclined in the direction of Presidential power—see the Presidential-immunity case—but also willing to draw lines about its reach, as the tariff case demonstrated. When it comes to certain contested issues, such as the right to abortion, the conservative majority will overrule decisions and upend the constitutional status quo. But this has not been a court itching to revisit settled understandings and entrenched precedents outside those hot-button matters; curbing illegal immigration is a passion project of the MAGA base, not of the originalist Court. The three remaining liberal Justices need only two conservatives to join their side in order to foil the Administration’s plan. They may well have a Justice or more to spare. ♦