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.