The Supreme Court issued a ruling in Trump v. Barbara. Amy Howe reports at SCOTUSBlog:
The Supreme Court on Tuesday struck down President Donald Trump’s executive order seeking to end birthright citizenship – the guarantee of citizenship to virtually everyone born in the United States. In a decision by Chief Justice John Roberts, in Trump v. Barbara, the justices agreed with the challengers, as well as all of the lower courts around the country that have considered the issue, that Trump’s order cannot be reconciled with the 14th Amendment to the Constitution, which confers citizenship on anyone “born … in the United States, and subject to the jurisdiction thereof.”
Writing for the majority, Roberts emphasized that the “children born of parents unlawfully or temporarily present in the United States” “satisfy both elements of the Citizenship Clause.” “Under the Constitution,” he concluded, “they are citizens at birth.”
In a dissenting opinion, Justice Samuel Alito called the ruling both “one of the most important decisions in the history of the Court” and “a serious mistake.” “Careful analysis of the text of the Fourteenth Amendment and the process that led to its adoption,” Alito argued, “shows that it does not degrade the concept of United States citizenship in this way. Instead,” he contended, “the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.”
Trump issued the executive order at the center of the case on Jan. 20, 2025, shortly after he was sworn into office for a second term. It provided that babies who are born in the United States to parents who are in this country either illegally or temporarily are not automatically entitled to citizenship.
Although Trump’s order was slated to go into effect 30 days after he signed it, it never did. Instead, several federal judges across the U.S. prohibited the Trump administration from enforcing the order while challenges to it moved forward in court.
I’m glad the Court ruled as it did. That’s consistent with the plain language of the 14th Amendment even if one believes the Amendment’s framers never contemplated today’s circumstances.
That creates an unusual constitutional question. Citizenship is a matter of federal law but the federal government has traditionally looked to state law to determine questions of family status such as parentage. If the Citizenship Clause depends, even in part, on who the child’s legal parents are at birth, then a child’s citizenship could hinge on the law of the state in which the child happened to be born. Consider the following scenario imagine a child is born to a surrogate in the United States and both of its biological parents are foreign citizens who reside abroad and have no legal presence in the United States. That is far from a wild hypothetical—it’s basically the situation of at least some of the children born in the California surrogacy operation that was recently revealed in the news. Yet modern surrogacy arrangements present circumstances the Framers of the Fourteenth Amendment could not possibly have anticipated. The Court will eventually have to decide whether citizenship turns on the place of birth alone, on legal parentage as defined by state law, or on some independent federal constitutional rule.
So Alito was not willing to look at process when it was convenient but he was willing to do so as a way to find cause for the ruling he wanted. I am so surprised.
Steve
“The Court will eventually have to decide whether citizenship turns on the place of birth alone, on legal parentage as defined by state law, or on some independent federal constitutional rule.”
only if someone comes up with another law, because it seems that the court decided that the law means what it says
but that would require thoughtful deliberative legislative work, something our yawn-averse ruler can’t seem to handle
scout
Its horrible and horribly abused policy. And we all know that slavery was the real genesis of a well intended 14th.
That said, the Court, IMHO had no choice but to rule as it did based upon wording, throwing it back to the legislative branch and telling it to do its job. That of course will never happen because we have a comatose electorate and ill intended politicians.
Ours is a system with faults, but its our system.
Drew: And we all know that slavery was the real genesis of a well intended 14th.
While the primary impetus was the citizenship of ex-slaves, the Framers of the Fourteenth Amendment explicitly crafted the language to include the children of immigrants, including those of Chinese and, gasp, “gypsies”.
We inherited birthright citizenship from England. There had not been any limitations upon it other than diplomats and such, plus slaves. The intent was to remove that limit from slaves and leave the limitations on foreign officials. It’s one of the more clearly written amendments. However, that wont matter if the GOP gets to choose one more judge.
Steve
@Dave “imagine a child is born to a surrogate in the United States and both of its biological parents are foreign citizens who reside abroad”
Unless the surrogate is a foreign diplomat or a member of an invading army, it’s pretty clear that the child would be a natural-born citizen of the United States and eligible to be President 35 years hence. The “in the United States” is the only bit of the scenario that matters.
I haven’t had time to read the opinion, but was surprised that the decision was not made on statutory grounds long the lines that Kavanaugh apparently dissented on. I saw predictions that a ruling that the executive order was an improper vehicle for a change in immigration policy or exceeded statutory authority would garner 7 or 8 votes. Under the Constitutional avoidance doctrine, courts should not rule on constitutionality if the case can be resolved on other grounds.
I also agree with Drew that the Fourteenth Amendment was passed to provide protections to freeman in general and the Civil Rights Act of 1866 in particular.
By my count, this means that Trump lost what appear to have been the three most important appeals this term: tariffs, Cook firing, and birthright citizenship, though Cook may come back. Vote tallies of the justices that voted in favor of Trump’s position:
Thomas: 3
Alito: 3
Gorsuch: 2
Kavanaugh: 1.1
Barrett: 1
(Giving Kavanaugh partial credit for dissenting in birthright, but came to the same conclusion on the judgment)
James:
In some states the surrogate is not the parent of the child.
Dave:
Yes. But it doesn’t matter. If the child is born here, it’s a citizen. I suppose that wouldn’t be the case if it were established a priori that the egg donor was a foreign diplomat?