SCOTUS issues ruling on birthright citizenship
The case for restricting birthright citizenship was and is a good one, in my opinion. But it always seemed like it would be a stretch for SCOTUS to limit it by excluding babies of tourists and illegal aliens, because that would represent a huge change in the traditional interpretation of the 14th Amendment. I joined most prognosticators in predicting it wouldn’t happen.
And it hasn’t happened. Roberts and Barrett (no surprise there) joined the liberals in saying that birthright citizenship will stand much as before. The ruling was broad:
Roberts Opinion, joined by Barrett and the liberal block, fully embraces birthright citizenship for all. Children born to women illegally or temporarily in the country “are citizens at birth.”
I think that’s a bad outcome politically – in particular, I think that tourist citizenship is ludicrous and could not have been what the framers of the 14th Amendment intended. But I’m unsurprised at the general result of upholding the interpretation as it has come to be implemented.
I do think the ruling could and should have been more narrow. The Court could have just ruled that an executive order was not the way to clarify the meaning of the amendment, and left open the chance that Congress could clarify the 14th by passing a law. This was what Justice Kavanaugh said in his opinion:
In my view, the Executive Order does not violate the Fourteenth Amendment. But the Order does contravene a federal statute, 8 U. S. C. §1401(a). Congress could—consistent with the Fourteenth Amendment—amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. But Congress has not yet done so.
However, it seems to me that the majority opinion has closed off that avenue, at least until the Court hears the issue again (if it ever does). Yes, the Court has indeed “fully embraced” birthright citizenship no matter how bizarre the results and no matter that those who passed the amendment almost certainly did not and could not envision tourist birthright citizenship, in which pregnant women come here briefly for that exact purpose and leave shortly after, conferring citizenship rights on children who have nothing to do with the US and have never lived here except for a few days or weeks as infants, and whose parents have no connection to the US either. It is a travesty, in my opinion. But it stands, and now it seems to me that the only way to change it is through a constitutional amendment.
Actually, I’ve thought for a while that’s what would probably be required. I wrote this post in April, saying as much. I also wrote that such an amendment was unlikely to succeed in being passed, and I still think that is the case – unfortunately. Perhaps if it was explained to the American people, the vast majority would want to ban tourist citizenship. But to get 3/4 of state legislatures to do so? I just don’t see it happening.
This is from Justice Thomas’ dissent, which was joined by Gorsuch:
Blacks were entitled to citizenship because they were Americans. They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority…. The same could not be said for the children of foreign temporary visitors. Foreign temporary visitors were attached to their home country, lacked similar bonds to this country, and would not be called upon in time of war….
The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens. In doing so, the Court adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support.
I agree. And this is from Justice Alito:
in my judgment, the Court has made a serious mistake. As interpreted by the Court today, the Fourteenth Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of “birth tourists,” women who come here solely for the purpose of giving birth to a child and then promptly return home. Careful analysis of the text of the Fourteenth Amendment and the process that led to its adoption shows that it does not degrade the concept of United States citizenship in this way. Instead, the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country….
As a result of the events of the past 50 years, the United States now has a huge contingent of people who entered or remained in this country illegally, as well as a large group of people who were born here to such parents. The Court’s interpretation of the Fourteenth Amendment makes all the members of this latter group citizens. Many of those who have grown up here now have a strong moral claim to be allowed to remain, but that is a matter that the Fourteenth Amendment, when properly interpreted, leaves to Congress.
It’s a bad decision but an unsurprising one. I am in complete agreement with Justice Alito on this: “we should not adopt an erroneous interpretation of the Fourteenth Amendment out of fear of the consequences of ‘rocking the boat’ or as a reaction to current immigration policy.” I believe that’s exactly what occurred with Roberts and Barrett – they were afraid of rocking the boat, and they found a way to avoid doing so. For the three liberal justices, their position was a foregone conclusion for political reasons, although of course they justified it with legal arguments.
Much more in this post at Ace’s, which is especially full of quotes from the opinions. The post also adds this from Senator Eric Schmitt:
The Supreme Court’s birthright citizenship decision is wrong, dangerous, and disastrous for American sovereignty and the American people. If we can’t fix it with ordinary legislation, then we must do what the Constitution commands in moments of national crisis: We must amend the Constitution and restore American citizenship. We must again put “We the People” first.
The Supreme Court’s decision constitutionalizing unlimited birthright citizenship for the children of illegal aliens and temporarily present aliens is wrong–and disastrous for our sovereignty and the future of our republic.The decision exposes America to grave national security risks and threatens to erode the integrity of the core of American self-government: citizenship.
I wish him luck.
NOTE: As to the recurring question of why justices who start out seeming as though they will be conservative sometimes end up becoming more liberal as time goes on – well, I don’t think Justice Roberts was ever conservative in the first place. But the more general reason is that it takes very strong adherence to conservative principles of jurisprudence – a commitment to originalist interpretation, for example – to resist the siren call of power. For the most part, justices are smart, and they can find the reasoning to back up the result they want, and they become seduced by power over time.
ADDENDUM: Kurt Schlichter has this optimistic take on the decision.
Also please note my comment here.
Roberts strikes again to destroy the country.
Birthright tourism is wide open. Any pregnant women can come visit andleave with a American citizen.
So much for Constitution Lawyers
Are not the children of US citizens also citizens at birth regardless of birth location?
This is egregiously stupid. One step closer to civil upheaval.
The rational response to this stupidity is
ALL females capable of producing children now or in the future (i.e. female children) should be barred from entry. All visas for the same cancelled and prioritize removal of illegal females including female children. Can’t have the non-pregnant (including visa overstays) evading deportation long enough to get pregnant and give birth, so expel them all.
Except the Swedish World Cup fan in the light blue bikini. She can stay.
But it stands, and now it seems to me that the only way to change it is through a constitutional amendment.
The decision is not surprising. Though extremely troubling for our country going forward. Yes, the success of an amendment process looks remote.
But here is a what-if: I don’t think the constitution actually says that the Supreme Court is the most powerful or even the most determinative of the three gov. bodies. A dumb move would be for the president to try this Executive Order move again. However, what if Congress were to pass legislation that essentially follows Kavanaugh’s script? Passage is difficult to muster here also, unless the filibuster goes away, but much easier than an amendment.
Additionally, (and this may be bad politics &/or psychology) this hypothetical legislation could directly challenge the SCOTUS’s authority to be the only arbiter of such momentous findings.
I don’t know if the following is true or merely PC posturing, but Roberts claims to care a lot about whether the SCOTUS is seen as a group of partisans enacting their will, rather than being judicious interpreters of the Constitution and law. Unfortunately, many on the left already are certain that some of the justices are right wing partisan hacks, and folks like us here probably strongly believe that Sotomayor and KBJ are left wing hacks. (Too late justice Roberts!)
I was quite surprised when the court reversed the Roe v. Wade and Casey structure. So that type of thing is a possibility. But I can’t imagine that Roberts would reverse himself. Is there some universe where Barrett changes her mind? Or, we will get one or more new justices before too long.
If the ruling had simply focused on the wording of the 14th Amendment and on whether the president has unilateral authority to issue a binding interpretation thereof (hey separation of powers) well and fine.
Upholding precedent is understandable. But we have seen the Court go against precedent when they thought it was not grounded in the text (and intent?) of the Constitution and its Amendments.
Chases Eagles wrote: Are not the children of US citizens also citizens at birth regardless of birth location?
My understanding is it depends on the nation where they are born. The vast majority of nations around the world rely on jus sanguinis the “right of blood”.
My youngest sister was born in the United Kingdom (several years after they ended a law granting dual citizenship until the age of eighteen). Our parents are United States citizens who held United States passports. She was and is an American citizen.
It would have been interesting if my parents had to secure a British passport – and get a visa? – so they could return to the States with their British child!
TommyJay:
I addressed that very question in in this comment earlier today.
Chases Eagles, we’re thinking alike.
Trump could prioritize deporting illegal alien women of childbearing age, keep the border, north and south, tightly sealed, and not grant visas of any kind to pregnant women.
I think he can get away with that system.
Just read an excerpt from Justice Alitor’s dissent so I need to revisit Chases Eagle’s comment above.
Congress can and should address their situation. The
Fourteenth Amendment dictates who must be a citizen, but
it does not address who may be a citizen by Act of Congress.
Congress has conferred citizenship on many people who are
not made citizens by the Fourteenth Amendment, including
children born abroad to American citizen parents.
Interesting. One wonders what happens when the laws of the nation (where a child is born) are at odds with the laws of the nation (of which the child’s parents are citizens). When a nation that relies on jus solis says “this child is a citizen because s/he was born here” but the nation of which the parents are citizens says “no, the child was born abroad to American citizen parents and is therefore an American citizen”.
I think the Court has made a mistake similar to the ruling on gay marriage, which Scalia warned would cause big trouble. They could have, more cautiously, ruled that an Executive Order was not sufficient to determine the meaning of the Fourteenth Amendment, leaving the question for Congress, as Kavanaugh argues. I am sorry they chose the more radical path.
The problem is that, until about 10 minutes ago, even the right agreed that the 14th amendment established birthright citizenship. In all seriousness, the movement among legal scholars on the right to reevaluate that only got going in earnest just a few years ago.
FWIW, I think the case against the 14th Amendment requiring birthright citizenship has some merit, but as I mentioned on the other thread, this was not done the right way and, in fact, it was done in a way that will make it MORE difficult to achieve the desired result.
Look at how the 2nd amendment was handled. The case that the 2nd amendment established an individual right to bear arms was somewhere between dormant and completely dead for most of the 20th century. Over the course of decades, legal scholars on the right moved slowly and deliberately to change that. Conservative legal scholars at universities and think tanks wrote journal articles, arguments were tried out and honed and slowly, as the time became right, 2nd amendment activists started bringing cases that chipped away at the previous consensus, ultimately leading to Heller in 2008.
The successful move to reverse Roe was similar, but I think Heller is more relevant here. If 2nd amendment advocates had forced a SCOTUS case in, say, 1982 before all of the groundwork had been laid, they would have only succeeded in creating SCOTUS precedent directly holding that there was no individual right from the 2nd amendment.
Well, that’s what happened here. A quickie EO created a predictably difficult case that has now, very predictably, created direct SCOTUS precedent for the birthright citizenship interpretation of the 14th amendment. And so now, the burgeoning movement to reinterpret the citizenship clause of the 14th amendment is, effectively, dead as a doornail. The movement is actually WORSE off than it was before the EO.
neo suggests legislation. That might work, but most likely won’t. This decision shows that, unless somebody changes their mind, there are only 4 votes on SCOTUS who would rule to uphold a statute. After this case, the best chance is a long shot Constitutional amendment.
It needs to as draconian as I wrote. It needs to be shoved in the face of the four stupid women on the court. No females under 55. You can’t be sure they will leave. Rub their noses in it.
neo on June 30, 2026 at 4:40 pm
Thanks for pointing that out.
In my next to last paragraph above, I mention the partisanship issue in the SCOTUS context. But, it occurs to me that maybe Roberts, in an effort to avoid the appearance of partisanship from any source, looked askance at a presidential EO, being the action of only one man.
Bauxite:
It goes back considerably further than that
I wrote my first post on the subject in 2014: this one. If you read it (and I suggest you do), you will see that bills on the subject had been repeatedly introduced since at least 2011. I was very much in favor.
Also, see the Schlichter article I linked in the addendum. He is more sanguine; I’m not at all sure I agree with him, but he might be correct.
“Roberts . . . looked askance at a presidential EO, being the action of only one man.” Yesterday, writing about the Slaughter decision, John Hinderaker quoted himself and the Constitution from an article he wrote when that case was argued: “‘The executive Power shall be vested in a President of the United States of America.’ That’s it: the President is the executive branch.” Are not the branches of the Federal Government co-equal?
I guess if temporary visitors can produce citizens, then they can drafted into the service of the United States and made to swear allegiance.
Summarized Bauxite:
“it was all done the wrong way”
Not that Chief Judge Johnny and Mrs. No Notes voted with the three progressives, nope, birthright citizenship was allowed to continue because of The Great Orange Whale.
But of course The Great Orange Whale brought the problem into the spotlight. But better to ignore the problem for a other 50+ years until the perfect Republican presents a perfect solution, CC™-R?
Cap’n Rusty,
Yep. That’s a valid point. As is the fact the president is elected by the people.
On the other hand, it’s less unseemly if congress chooses to clarify the meaning of something that congress wrote. Admittedly, all those authors are dead. But at least it would be a group decision, and here I’m trying to guess what’s in Robert’s head and his estimations. Seemly, or unseemly isn’t about the Constitution or the law. It’s about appearances.
IMO, if he were simply being smart, honest, and direct; he would have upheld the EO. But for some reason, he chose not to.
The branches are NOT co-equal. Congress is superior, then comes POTUS and last, the courts.
Example of how the courts stick their faces in the business of POTUSi named Trump.
Kennedy Center. Only Congress can change the name. Well, Congress has more than enough power to do one of the following:
A They can make Trump take off his name
B They can enable him
C They can ignore the whole issue
But nope, nope, the court unconstitutionally intruded into the political branch instead because of course they did. Congress, of course, is too busy enriching themselves and their families to do their @#$&* jobs.
So much for the court just calling balls and strikes. The five justices’ reasons, as I read them, for their ruling:
Jackson: Probably dislikes white people, so sees her vote as “sticking it to Y-T.”
Sotomayor: Her vote was motivated by “they’re picking on my tribe and I don’t like it.”
Kagan: IIRC, worked at one time for the ACLU. No more need be said.
Barrett: Has adopted children from a 3rd world country. Should probably have recused herself because that in my view makes her very unlikely to set her personal feelings aside.
Roberts: Saw what happened with Kavanaugh and the Roe v. Wade leak four years ago and is probably understandably fearful for his safety.
POTUS is not elected by the people, he is elected by electors and confirmed by Congress.
All his highest ranking subordinates are confirmed by Congress, all military officers the rank of Major and above, all the judges. Most of these people, they can remove. And Congress controls the money.
“Yes, the Court has indeed “fully embraced” birthright citizenship no matter how bizarre the results and no matter that those who passed the amendment almost certainly did not and could not envision tourist birthright citizenship”
Roberts and Barrett have once again demonstrated their unfitness for their office. Kavanaugh has to know that congress will not address this problem. He admits that Trump has the lawful authority. So arguably, he’s even worse, moral cowardice dressed up as ‘helpful suggestion’.
“The Political Upside of Losing the Birthright Citizenship Case”
“First, liberal anger (and conservative complacency) would’ve driven more pro-Democrat voters to the polls during the midterms.
Second, overturning birthright citizenship would’ve hijacked the news cycle, removing focus on the Democratic Socialist wackaloons who are actively taking over the Democratic Party.
Third, if the Supreme Court hadn’t demonstrated its independence, the Democrats’ pledge to pack the court — and contort the Constitution — would no longer look like an insane overreach.
Just because we didn’t win at the Supreme Court today doesn’t mean we won’t win the midterms. Because the opposite is likely true: Today’s loss makes an Election Day victory more probable.
Never before have the political battle lines been so clearly defined. Win or lose, 2026 will transform our country.”
https://pjmedia.com/scott-pinsker/2026/06/30/the-political-upside-of-losing-the-birthright-citizenship-case-n4954530
Rick67 @ 4:50 pm,
I wonder about that issue as well.
Bauxite,
“The problem is that, until about 10 minutes ago, even the right agreed that the 14th amendment established birthright citizenship.”
No we never agreed that the 14th established birthright citizenship for the children born in the US to non-citizens that are not legal immigrants. Nor are RINO’s in Congress and their supporters “on the right”.
The problem is twofold, the woke left would rather destroy the country than share power and, liberal, “useful idiots” enable that destruction.
“The problem is that, until about 10 minutes ago, even the right agreed that the 14th amendment established birthright citizenship. ”
bull shiite . we never agreed to that. subject to the jurisdiction always meant that the children of vermin sneaking in were subjects of the nation they came from.
Agree with neo that Roberts and ACB didn’t want to rock the boat. But that’s no way to decide SCOTUS cases.
I wish Sen. Eric Schmitt luck but it will never happen. The Dems want to destroy America.
I agree it’s poor policy…
But I was disappointed to see the originalists bend over backwards to achieve their desired policy outcome and abandon originalist principles in the process.
This should have been 9-0. Have to amend the constitution.
@Variant:But I was disappointed to see the originalists bend over backwards to achieve their desired policy outcome and abandon originalist principles in the process
The originalists did the research and showed that the 14th Amendment was not intended or understood to grant birthright citizenship. The majority decided they’d rather talk about feudalism that pre-existed the 14th Amendment.
Variant:
I don’t know why you would think an originalist (or a textualist, for that matter) should find it easy to know how to decide the case. It turns out there were differences of opinion among the people who drafted the amendment, as to whether it would apply to those who merely were visiting. In addition, the concept of illegal immigration didn’t even exist until the first immigration laws, passed in 1875 after the 14th Amendment. The purpose of the 14th Amendment was to secure rights for former slaves, not to give citizenship to the children of pregnant Chinese tourists flying to the US in order to give birth and then leaving immediately after.
There is “literal intrepretation” and “spirit and intent” intrepretation; Roberts and Barret chose “literal.” I think they made a mistake, but I understand why: “black letter law” is a powerful drug.
Ruling based on the actual words used, and their precise definition, without considering the intent of Congress’ action with the 14th Amendment seems to me shortsighted and laden with consequence. SCOTUS has in past rulings found mutiple “emanations and penumbras” lurking between words to support their rulings; in a case where the “Es and Ps” would make a quite reasonable difference they are discarded in favor of literalism.
This will have consequences. As neo points out, the answer is, most likely, an amendment to rectify the decision, or perhaps a future reconsideration of the decision based on ancillary information, specifically, action by Congress (which I doubt could, or even should, come prior to 2027 – there is change afoot in the country and it will certainly be reflected in November’s elections).
The adminstration has options, specifically, 8 U.S.C. § 1182(f) (INA Section 212(f)) which says:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Such action by Trump (or, certainly, any Republican President) would instantly produce a myriad of court filings, some of which might…”might”… lead to the SCOTUS reconsideration neo suggests (one of the issues there is the standard SCOTUS cycle – issues today often do not receive cert for several years, and most don’t receive cert at all).
All sorts of things are quickly becoming interesting, many of which not in a good way; Margo Channing’s seatbelt reference may be more prescient today, and it will be needed for much longer than one night.
neo – Introducing a few bills that never make it out of committee is not preparing the ground for a new interpretation of an old law. And passing a law to see what happens at SCOTUS is not a smart strategy. If you haven’t paved the way for SCOTUS to rule the way you would like, you just end up creating opposite precedent, as happened here. Before this case, there was at least some ambiguity about the citizenship clause of the 14th amendment. Now, you have SCOTUS precedent on point.
(Note that the left did the same thing about trans treatments for kids last term. Their activists got way ahead of themselves and brought a case that they were sure to lose. It would have been better (for them) if that had not brought the case at all.)
Sometimes, when pre-Trump Republicans did not do what the most vocal portions of the base wanted, it was not because they were RINO squishes. It was because what the base wanted was dumb and bound to be counter-productive. Kind of like this.
Georgetown con law prof Randy Barnett says he was pro birthright…until he read the relevant originating documents on the Constitutional Amendment.
He authored a recent book explaining his findings, and a few months ago, someone linked to an archived post of his WSJ on it.
Anyone got a LINK to post? Ah, found it, from March. “Trump is right on birthright citizenship”
https://www.wsj.com/opinion/trump-is-right-on-birthright-citizenship-954ae377
Mike Davis of the Article III Project has had several interviews on this SCOTUS decision.
The single best is 15 minutes, here https://www.youtube.com/watch?v=Ng9UwRUCqE0
In probably several interviews Davis turns purple with outrage, going so far as to call the two, Justice Barrett and Chief Justice Roberts, “F*****g cowards!”
TJ:
In Justice Thomas’ dissent to yesterday’s ruling, he went into that history in some depth. You can look up the text of the ruling. I actually hope to write a post on his dissent, but not today.
No chance the Leftists ‘Blue’ states would cancel this invasion. They are hiding Illegals now, having foreigners coming to drop a American Citizen is a blessing from the Supreme Court