Alarmingly, only five members of the nine-person U.S. Supreme Court found the U.S. president’s executive order revoking birthright citizenship unconstitutional. This is a slender thread.
President Donald Trump departs the Supreme Court after attending oral arguments in the landmark birthright citizenship case on April 1. ( White House /Daniel Torok)
By Marjorie Cohn
Special to Consortium News
In a case the U.S. Supreme Court never should have agreed to hear, its members narrowly rejected Donald Trump’s attempt to eviscerate the Citizenship Clause of the U.S. Constitution’s 14th Amendment, which ensures citizenship to virtually every person born in the United States.
Trump signed an executive order on the first day of his second term in which he redefined who is an American for the first time in over 150 years. He sought to deny birthright citizenship to children of parents who are undocumented or in the U.S. on temporary visas for travel, work, school, or humanitarian reasons.
John Roberts, Ketanji Brown Jackson, Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett held in Trump v. Barbara that Trump’s executive order called “Protecting the Meaning and Value of American Citizenship” violated the 14th Amendment.
Brett Kavanaugh also voted to overturn Trump’s order, but not on constitutional grounds. He wrote in his concurring opinion that it violated the Nationality Act of 1940, in which Congress codified the Citizenship Clause.
Alarmingly, only five members of the nine-person Court found the order revoking birthright citizenship unconstitutional. This is a slender thread.
“The very fact that the country came within one or two votes of undoing our system of birthright citizenship is a sign of how far the Trump administration has succeeded in throwing into contention the country’s most basic freedoms,” correspondent Pema Levy wrote at Mother Jones.
Section 1 of the 14th Amendment says:
“All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Roberts wrote for the majority that the “children born of parents unlawfully or temporarily present in the United States … satisfy both elements of the Citizenship Clause.”
“Under the Constitution,” he concluded, “they are citizens at birth.”
In his dissenting opinion, Samuel Alito called the ruling “one of the most important decisions in the history of the Court” and “a serious mistake.”
He wrote that the text of the 14th Amendment and the process leading to its adoption “shows that it does not degrade the concept of United States citizenship in this way. Instead,” he asserted, “the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.”
A Centerpiece of Trump’s Anti-Immigrant Agenda
ICE and Border Patrol agents fire weapons on Jan. 24 following two ICE agents’ killing of Minneapolis citizen Alex Pretti. (Chad Davis/Flickr/Wikimedia Commons/CC BY 4.0,)
Trump’s executive order attempting to curtail birthright citizenship is a central pillar of the anti-immigrant agenda he is pursuing with a vengeance. His administration has enacted more than 700 restrictions on immigration since January 2024. The cruelty of his policies knows no bounds.
His order would have denied about 255,000 children nationwide their birthright to citizenship each year, and effectively cut federal funding for foster-care services for abused and neglected children, and early interventions for infants, toddlers and students with disabilities.
Immigrant and civil rights groups and over 20 states and the District of Columbia filed four major lawsuits challenging Trump’s executive order. Every judge who considered the issue ruled that the order violated the 14th Amendment, and lower federal courts blocked it from taking effect nationwide.
Senior U.S. District Court Judge John C. Coughenour, a Reagan appointee, called Trump’s executive order “blatantly unconstitutional.”
Roberts noted in the majority opinion that the 14th Amendment was adopted to renounce the Supreme Court’s “odious” 1857 ruling in Dred Scott v. Sandford, which held that a Black person whose ancestors were brought to the U.S. and sold into enslavement did not have protection from the federal courts because he or she wasn’t a U.S. citizen.
The Roberts Court since June 2022: Front row, from left: Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito and Elena Kagan. Back row, from left: Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson. (Fred Schilling, Collection of the Supreme Court of the United States, Wikimedia Commons, Public Domain)
The framers of the 14th Amendment sought to “permanently enshrine” birthright citizenship. “A child born on American soil and subject to American law was made an American citizen,” Roberts wrote.
“[T]he Fourteenth Amendment was intended to repudiate Dred Scott,” Roberts noted. “[H]owever, the goal was even grander — to put the ‘great question of citizenship’ ‘beyond the legislative power’ altogether, to settle the issue once and for all.”
Clarence Thomas penned a 91-page dissent, joined by Neil Gorsuch, arguing that the Citizenship Clause only applied to freed slaves, who owed allegiance to the U.S. because “[t]hey had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority.”
“Foreign temporary visitors,” on the other hand, “were attached to their home country, lacked similar bonds to this country, and would not be called upon in time of war,” Thomas continued.
The Citizenship Clause “added greatly to the dignity and glory of American citizenship,” Thomas wrote. “Today’s opinion devalues that citizenship.”
In her concurring opinion, Jackson took aim at Thomas’s argument, writing, “Despite his longstanding endorsement of a ‘colorblind’ Constitution, JUSTICE THOMAS now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to ‘freed slaves such as Dred Scott.’”
Thomas in 2017. (Preston Keres, U.S. Department of Agriculture, Public Domain)
“[F]reed Blacks did not receive citizenship as a reward for their military service or for having, through no choice of their own, ‘no other homeland [and] no allegiance to any foreign power,’” Jackson wrote. “Instead, the Amendment recognized their rightful claim to birthright citizenship simply and solely by virtue of their having been born on American soil.”
“The Reconstruction Amendments [including the 14th] were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery,” Jackson added.
In its 1898 landmark ruling in United States v. Wong Kim Ark, the Supreme Court held that the 14th Amendment guarantees citizenship to virtually all individuals born in the U.S. with exceptions for children of foreign diplomats or enemy occupiers. Although Wong Kim Ark included children in Indigenous tribes as an additional exception, Congress granted citizenship to them in the 1924 Indian Citizenship Act.
“What the Court held in Wong Kim Ark was simple,” Roberts wrote. “[T]he Citizenship Clause incorporated the common law and granted citizenship to nearly all children born in the United States. Not surprisingly, then, in the 128 years since, we have repeatedly understood the rule” of that case “to guarantee citizenship to all children born in the United States and subject to its power.”
“Citizenship, then and now, was the right to have rights— to freely participate in our political community,” Roberts concluded. “The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”
It is frightening then that four right-wing members of the Court thought Trump’s order to revoke birthright citizenship was constitutional.
Kavanaugh Urges Congress to Limit Birthright Citizenship
Jackson in 2020. (Wikicago, CC BY-SA 4.0, Wikimedia Commons)
In his concurring opinion, Kavanaugh suggested Congress “could amend” the federal statute or “otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. But,” he noted, “Congress has not yet done so.”
Trump was peeved but not likely surprised by the outcome, since he attended the oral argument in this case (an unprecedented move for a president). In his social media post reacting to the Supreme Court’s ruling, Trump picked up on Kavanaugh’s suggestion:
“The Supreme Court upheld Birthright Citizenship, which is too bad for our Country, but we can easily make it up in Congress through Legislation, with the support of the President, that has now been determined during this process. No long and unwieldy Constitutional Amendment is necessary! Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship. They will have my Complete and Total Support!”
There is virtually no chance Congress would pass a constitutional amendment, which may be proposed either by a two-thirds majority vote in both houses of Congress or by a constitutional convention called for by two-thirds of the State legislatures.
Republican bills are pending in both houses of Congress to end birthright citizenship, but they have little support. Considering the virtual impossibility of overcoming a Democratic filibuster in the Senate, there is little chance that Congress would amend the existing statute or pass a new one.
“Despite this seemingly historic loss, the Trump administration is winning its war on immigrants,” Stephen Yale-Loehr, an immigration scholar at Cornell University, told The New York Times. “As a result, the United States has net-negative migration for the first time in 50 years, fewer international tourists are visiting, and U.S. companies cannot hire the workers they need.”
The Supreme Court or the Democratic Party alone cannot stop Trump’s cruel, racist, anti-immigrant crusade. Justin Akers Chacón, an immigrants’ rights activist in San Diego-Tijuana, wrote at Truthout:
“Building protest movements, anti-ICE defense committees, workplace and neighborhood support networks, and mutual aid campaigns, and by organizing working-class power into sustained political movements that include walkouts, shutdowns, and strikes are the only way that we can beat back and weaken Trumpism and bring an end to his reign of terror against immigrants.”
The labor activist and songwriter Joe Hill once said, “Don’t mourn, organize!”
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law and past president of the National Lawyers Guild. She sits on the national advisory boards of Veterans For Peace and Assange Defense, and is a member of the bureau of the International Association of Democratic Lawyers and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.
Views expressed in this article and may or may not reflect those of Consortium News.
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