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.