The Birthright Citizenship Decision Will Not End the Birthright Citizenship Debate

There was never much doubt that the Supreme Court’s decision in Trump v. Barbara would be issued at the very end of the Court’s term, or that Chief Justice Roberts would save the opinion-writing duties for himself. Nor was there much serious doubt that the Court would reject President Trump’s Executive Order seeking to redefine birthright citizenship under the Fourteenth Amendment. What was not expected, however, was that the Court would issue a short-yet-sweeping constitutional opinion that only captured five votes. The Court largely neglected the statutory arguments against the Trump EO, and four justices spurned the conventional academic account of birthright citizenship. In the end, an opinion meant to settle the debate over birthright citizenship may have instead kindled a new one.

The question presented in Barbara was whether the Constitution guarantees citizenship to children born to parents who are unlawfully or temporarily present in the United States. Section 1 of the Fourteenth Amendment provides “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” According to the Trump Administration, such language may guarantee birthright citizenship to the children of U.S. citizens and lawful permanent residents, but does not extend to the children of illegal aliens or foreign tourists.

The key language in Section 1 is “subject to the jurisdiction” of the United States. Under the common law, this language was understood to exclude the children of foreign diplomats and ministers, invading armies, and some Native American tribes. All others born on U.S. soil were within the nation’s jurisdiction and entitled to birthright citizenship. According to the Trump Administration and a small group of revisionist scholars, this interpretation was unjustifiably broad, having been adopted at a time when there was no such thing as illegal immigration under federal law and the concept “birth tourism” had yet to be conceived. Under the revisionist account, a greater form of allegiance to the nation is necessary for the constitutional guarantee —an allegiance temporary visitors and unlawful entrants lack. Either way, Congress retains the authority to expand citizenship and provide for naturalization. At issue is the constitutional floor.

Writing for a slim five-justice majority, Chief Justice Roberts endorsed the conventional view of birthright citizenship in a crisp, clear, and concise opinion. As laid out by the Chief Justice, the rule embodied in the Constitution is fairly simple: “A child born on American soil and subject to American law was made an American citizen,” save for the long-standing exceptions for children of diplomats, invading armies and some Indian tribes, all of which may be characterized as embodying an “extraterritorial fiction” that kept them outside of U.S. jurisdiction. To be “subject to” the jurisdiction of the United States, the Chief Justice explained, was to “live under” its dominion”—something that could not be said of those excepted from the general rule. Importantly, as Roberts conceived the language, the three historical exceptions are a permanently closed set, not exemplars of an underlying principle. Accordingly, there is no way to expand the exceptions save for a constitutional amendment; an Executive Order simply will not do.

Justices Sotomayor, Kagan, Barrett, and Jackson joined the Chief Justice’s opinion, cementing the conventional view of birthright citizenship as the constitutional rule. Justice Kavanaugh agreed that President Trump’s EO was unlawful, but not on constitutional grounds. While disagreeing with the majority’s constitutional holding, Justice Kavanaugh concluded the EO contravened federal law, particularly a provision of the Immigration and Nationality Act of 1952. This was a narrower basis on which to vindicate the conventional approach to birthright citizenship, which the Chief Justice uncharacteristically avoided.

Under 8 U.S.C. §1401, any “person born in the United States, and subject to the jurisdiction thereof,” is a citizen of the United States. While this language mirrors that of the Fourteenth Amendment, it was adopted at a time when government practice and legal precedent were understood to adopt the conventional view of birthright citizenship. The Supreme Court’s 1898 decision in United States v. Wong Kim Ark, was then understood to provide for birthright citizenship to all born on U.S. soil, save for those in the aforementioned traditional exceptions. Even if this understanding was in error—either because Wong Kim Ark was wrongly decided or misunderstood—it was the basis upon which Section 1401 was adopted, and most accept that the meaning of a statute is fixed at the time of its adoption and has been interpreted accordingly ever since. Congress could revise the statute to reflect a different understanding of birthright citizenship, Justice Kavanaugh noted, but it had not done so. Accordingly, “the Executive Order contravenes the federal statute” and is unlawful.

While rejecting the Trump EO on statutory grounds, Justice Kavanaugh did not embrace the majority’s constitutional argument, in particular its claim (also accepted in Wong Kim Ark) that the common law exceptions are a “closed set” and that Congress lacks authority to expand or revise them. The principle enshrined in the Fourteenth Amendment’s citizenship clause is constant, Justice Kavanaugh explained, but it can be applied “to modern situations that were unknown and unanticipated by the Constitution’s Framers.” This at least creates the possibility that there are additional “relevantly similar” exceptions to birthright citizenship that Congress could recognize, perhaps including those targeted by the EO. But Congress has not enacted a statute to do this, so that question is (for the time being) moot.

Section 1401 was the easiest and narrowest way for the Court to resolve this case, as I explained in a previous column. Curiously, Justice Kavanaugh was the only justice to embrace this statutory argument. Indeed, he was the only one to meaningfully address it. The Chief Justice directly tackled the constitutional question, as did Justices Thomas, Alito, and Gorsuch in dissent. Justice Thomas devoted three-quarters of a page (in a 91-page dissent) to the idea that Congress must speak clearly if it wishes to depart from a prior understanding of legal text, but made no effort to see whether Section 1401 (and its 1940 predecessor) satisfied that test. Because the opinion of the Court focused on the constitutional question, the dissents did as well.

While three justices (Thomas, Alito and Gorsuch) would have rejected the challenge to Trump’s EO, none fully embraced the lawfulness of trying to redefine birthright citizenship by presidential fiat. All three believed that there were at least some instances in which the EO could be constitutionally applied, and that it would be inappropriate to invalidate it wholesale rather than on an as-applied basis. As a rule, facial challenges to government actions should only prevail when they have no lawful application. But they also expressed doubts about some of the EO’s potential applications.

The dissenters agreed that the Fourteenth Amendment’s guarantee of birthright citizenship should not apply to children of temporary visitors because, in their view, domicile in the United States is required to be “subject to the jurisdiction” of the United States for these purposes. “What matters isn’t whether a child’s parents are citizens,” wrote Justice Gorsuch. “What matters is whether they (and, by law, their child at birth) have made this place their home and are thus ‘domiciled in the United States.’” Yet while such a rule would deny citizenship to children born of “temporary visitors” and “birth tourists,” Justice Gorsuch expressed some doubt as to whether it would apply to the children of those who entered the country illegally (or overstayed a visa) and subsequently sought to make the United States their home. Justice Thomas, for his part, was noncommittal on the question, leaving open whether an illegal immigrant could establish domicile for these purposes. And Justice Alito, while concluding definitively that “birth tourists” and children born to parents with allegiance to their nations of origin under those nations’ laws should be excluded, did not embrace the constitutionality of the Trump EO in all of its applications.

In articulating and embracing a broad constitutional rule, the Chief Justice likely sought to settle the birthright citizenship debate for the body politic. He probably failed. Resolving the case on constitutional grounds produced a narrower majority than was necessary to resolve the case and invited extensive response, including over 130 pages of dissents. Legislative proposals on “birth tourism” and the like are sure to follow.

Although he considers himself a student of history, Chief Justice Roberts may not have learned history’s lesson here. While fairly (and in my view, accurately) recounting the history of American citizenship, he neglected to consider the history of judicial overreach. On several occasions in our nation’s history, justices have sought to quell political contestation through judicial edict, hoping the power of the pen would quell political discord. The controlling opinion in Planned Parenthood v. Casey (1992) called on “the contending sides” of that “national controversy” to lay down their opposition and heed the Court’s opinion. Their argument fell on deaf ears and arguably enflamed the opposition to the Court’s abortion jurisprudence.

It is unlikely that Trump v. Barbara ended the debate over birthright citizenship. It may have truly started it.

Jonathan H. Adler is the Tazewell Taylor Professor of Law at the William & Mary Law School.