In a landmark victory for the immigrant community, and indeed for all Americans, the U.S. Supreme Court upheld the principle that the Constitution guarantees citizenship to children born in the U.S. of parents who are undocumented or temporarily present in the country. At issue in the case was the legality of President Trump’s Executive Order No. 14160 which provides that children born in the United States of parents who are unlawfully or temporarily present in the U.S. are not “subject to the jurisdiction” of the United States and thus do not qualify for citizenship under the Fourteenth Amendment. Writing for the majority ( 6-3 decision), Justice Roberts held that such children are indeed “subject to the jurisdiction of the United States” and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause.
Justice Roberts provides an originalist and textualist’s analysis of the history of the Citizenship Clause from the English common law, through the Supreme Court’s decision in Dred Scott v. Sandford through the enactment of the Civil Rights Act and the Fourteenth Amendment. The majority opinion notes that the common law concept of “jus soli” or “right of the soil” crossed the Atlantic and prevailed in “each and all of the states” after American independence and continued to emphasize reciprocal allegiance and protection. The Court recognized that the infamous Dred Scott decision deviated from this tradition by adopting the view that blood, not soil, determined citizenship in holding that those descended from slaves could not be citizens. In rejecting that view and returning to the common law, the court notes that the Civil Rights Act of 1866 made “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed” citizens of the United States. The Fourteenth Amendment further formalized that understanding in plain, straightforward language; “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.”
The basis for Trump’s Executive Order, and the arguments from the political right, center on the phrase, “subject to the jurisdiction thereof.” They argued that the phrase should be interpreted to require a domicile-based interpretation i.e., that birthright citizenship should be limited to those legally “domiciled” in the United States. The majority opinion makes short rift of those arguments by adopting an originalist view and recognizing how the phrase was interpreted and applied at the time of the passage of the Fourteenth Amendment. In that regard, Justice Roberts notes the Court’s 1898 decision in Wong Kim Ark confirms the common law view of citizenship by birth and that attempts to narrow Wong Kim Ark’s holding are unavailing.
Key Takeaways
The majority decision, while 6 -3 is really a 5 – 4 decision on the constitutional issues as Justice Kavanaugh concurred in part but dissented with the Court’s constitutional holding, arguing that Trump’s executive Order does not violate the Fourteenth Amendment but does contravene 8 U.S.C. § 1401(a). Justice Kavanaugh essentially provides an open invitation for Republicans in the House to introduce legislation to create further “exceptions” to the Fourteenth Amendment which would essentially codify Trump’s Executive Order. Under Kavanaugh’s view, “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.” Opening the door for further legislative efforts by Congress leaves open the possibility that the question of birthright citizenship will once again rear its head. Already there is rhetoric from the right advocating for a constitutional amendment to address birthright citizenship.
On the other hand, Justice Robert’s application of an “originalist/textualist” view of the constitutional issue is an example of “what’s good for the goose is good for the gander.” Arguing against his analysis, as Justice Kavanaugh’s contortions prove, will be a difficult challenge. As it now stands, Executive Order 14160 is unenforceable and the children of undocumented can breathe a sigh of relief, but challenges to birthright citizenship and other anti-immigrant measures will continue.