The Supreme Court Might Still Screw Up Birthright Citizenship
The Supreme Court appears likely to strike down President Donald Trump’s executive order limiting birthright citizenship. At Wednesday’s oral arguments, the justices showed little interest in letting the president arbitrarily deny citizenship to untold numbers of Americans.
But how the justices rule against Trump could matter almost as much as whether they do it. One dangerous possibility is that the court’s conservative members will open the door to future challenges, or otherwise weaken the prevailing interpretation of the Fourteenth Amendment’s citizenship clause.
Trump v. Barbara is, at its core, a very easy case. The citizenship clause states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” For the last 137 years, the consensus between Congress, the courts, and the executive branch was that anyone born on U.S. soil is automatically a U.S. citizen. The Supreme Court reached the same conclusion in the 1898 case United States v. Wong Kim Ark.
There were narrow exceptions, of course. Children of foreign diplomats did not qualify, because their parents had diplomatic immunity and were therefore not “subject to the jurisdiction” of the United States. Neither did members of Native American tribal nations that retained their own sovereignty, though Congress later extended citizenship to all Native Americans by statute in 1924.
Only under the second Trump administration has anyone seriously questioned this consensus or disputed the most natural reading of the text. I will not bother to recite once more the scholarly back-and-forth over the matter. Suffice it to say that the justices seemed largely unpersuaded on Wednesday by the administration’s claims that American citizenship actually derives from one’s innate “allegiance” at birth to their “domicile.”
Ideally, the court would issue a 9–0 opinion that reaffirmed the citizenship clause’s plain meaning and confirm that the Fourteenth Amendment places questions of American citizenship beyond the scope of ordinary political debate. Unanimity is one of the court’s best tools for legitimizing its own rulings among the American public, as evidenced by the court’s unified front on desegregation in the 1950s and 1960s.
That prospect appears unlikely here. At least two justices appear set to dissent from a potential ruling in the plaintiffs’ favor. Justice Samuel Alito, who is arguably the most consistently conservative member of the court, signaled his sympathy with the Trump administration throughout Wednesday’s oral arguments. At one point, he lamented that the nation had an “unusual situation here because our immigration laws have been ineffectively and, in some instances, unenthusiastically enforced by federal officials.”
Justice Clarence Thomas also indicated during oral arguments that he could embrace a narrower version of the citizenship clause—one that would limit its scope to the historical circumstances in which it was enacted. Before they embraced random nonsense on allegiance and domiciles, the Trump administration initially justified the executive order by claiming that the clause only meant to extend citizenship to formerly enslaved people in the American South during Reconstruction.
Overturning Dred Scott v. Sandford and securing African American citizenship was indeed one of the principal reasons for adopting the citizenship clause. As I’ve noted before, the Fourteenth Amendment’s drafters also made clear that they intended the clause’s egalitarian impact to be much more far-reaching than that.
Thomas’s questions at oral argument, however, suggested that he would be willing to embrace the narrower view championed by the Trump administration. “How does the citizenship clause respond specifically to Dred Scott and answers, or changes, or corrects its answer as to citizenship?” he asked Solicitor General John Sauer, who happily claimed in response that the clause was only meant to address Dred Scott.
This approach would not be out of character for Thomas. As always, he is outright hostile to precedent that he himself did not write. And he has hinted at similar views in the past. In the 2010 case McDonald v. Chicago, Thomas noted in passing that the citizenship clause “guaranteed the rights of citizenship in the United States and in the several States without regard to race.” That is a much narrower vision of the clause than the long-standing consensus.
Even for the remaining seven justices, it is hard to trust that they will get things right even if they vote against the Trump administration. Justice Brett Kavanaugh, for example, has a recurring habit of writing concurring opinions that telegraph how he might decide future cases involving similar issues to the one before him. This is not unusual: More than a few justices occasionally write separately to say that they would like the court to visit or revisit a certain legal question, which signals lawyers and plaintiffs to raise it in future petitions.
What sets Kavanaugh apart is his lack of what one might variously describe as guile, subtlety, or judicial propriety. When the Supreme Court struck down Roe v. Wade in 2022, he wrote a lengthy concurring opinion where he drew a line against interstate travel bans to obtain the procedure. He then joined the court’s landmark Second Amendment decision that laid out a much more restrictive test on gun restrictions, only to opine separately on a wide range of restrictions that he would vote to uphold.
Sometimes these concurring opinions have drastic consequences. In 2023, Kavanaugh joined Roberts and the court’s three liberals in a racial gerrymandering case that required Alabama to draw a second majority-Black congressional district. At the same time, however, he wrote a concurring opinion that questioned whether the Voting Rights Act could require “race-based redistricting” to remedy racial gerrymandering without violating the equal protection clause. The Supreme Court will likely answer “no,” with Kavanaugh’s help, when it decides Louisiana v. Callais later this term. That would defang what’s left of the Voting Rights Act and give states a freer hand to suppress minority electoral power in Congress.
It is not hard to imagine Kavanaugh writing a concurring opinion in this case where he votes to strike down the executive order, then helpfully suggests other ways to attack birthright citizenship. In Wednesday’s oral arguments, for example, he asked whether the Fourteenth Amendment’s enforcement clause in Section 5 meant that Congress could legislate on birthright citizenship.
“How much room do you think Section 5 gives, if any—and it may not be any—Congress to interpret the phrase ‘subject to the jurisdiction thereof’ or to define that?” Kavanaugh asked Sauer at one point. “Does it—is that relevant at all?” He then hinted at some alignment with the Trump administration on the wisdom of birthright citizenship in general.
“Why should we be thinking about—even though, as a policy matter, I get the point—thinking about, ‘Gee, European countries don’t have this or most other countries, many other countries in the world don’t have this’?” Kavanaugh asked. He noted that he didn’t “[see] the relevance as a legal constitutional interpretive matter necessarily, although I understand it’s a very good point as a policy matter.” That phrasing is ominous for a justice who is so willing to forecast his views.
Another risk is that the court will decide the case on statutory grounds instead of constitutional ones. Section 1401(a), which is also at issue in the case, repeats the language of the citizenship clause as part of a twentieth-century immigration law overhaul. In theory, the court could issue a narrow ruling that would invalidate Trump’s executive order for violating this statute while not addressing the constitutional question.
Kavanaugh seemed to hint at this outcome during oral arguments when questioning Cecillia Wang, the ACLU national legal director who represented the plaintiffs. “Why would we address the constitutional issue given your argument on the statutory [question]?” he asked. “Our usual practice, as you’re well aware, of course, is to resolve things on statutory grounds.”
Though this would be a victory for the plaintiffs, it would be a defeat for the country. The court would be punting the issue down the road while giving new ammunition to birthright citizenship’s opponents. It would also invite legislative campaigns to rewrite the relevant statute, which would bring additional litigation in the future and further destabilize the security of American citizenship.
“I do think it would be prudent for the court to reaffirm its decision in Wong Kim Ark, where it’s a landmark decision about the definition of national citizenship in this country,” Wang told Kavanaugh. “I just think it would be prudent for the court to go ahead and reaffirm that. But, of course, we’re happy to take a win on any ground.” As a lawyer, her primary obligation is to her clients.
The good news is that the narrower ruling on statutory grounds might not be feasible in this case. Part of the Trump administration’s argument is that Section 1401(a) and the citizenship clause share the same meaning. “If the court disagrees, obviously, we’d prefer an adverse ruling if the court’s going to do that on a statutory basis than a constitutional basis,” Sauer explained. But Justice Neil Gorsuch pressed Sauer to concede that he had ultimately “disavowed” this option.
I’ve often noted when writing about the court that oral arguments can be an imperfect indicator of final outcomes. Justices change their minds from time to time. Majorities can shift and collapse as the hard work of writing an opinion unfolds. Dissents can gather enough support behind closed doors to become the court’s eventual word on the matter.
Even assuming that there are six or seven votes to strike down the executive order, it is hard to sit comfortably. Perhaps the greatest risk of all is that the court will get too ambitious. The Supreme Court has a troubling habit in recent years of botching basic questions of constitutional interpretation, particularly where Trump is involved. 2024 saw two major cases where the court failed to apply the constitutional text in a straightforward manner. Instead, it has opted for policy-oriented or results-driven rulings.
In Trump v. Anderson, for example, the Colorado Supreme Court had ruled that then-candidate Trump had been disqualified from a second presidential term by the Fourteenth Amendment’s disqualification clause. The Reconstruction-era provision forbade anyone who previously swore an oath to support the Constitution from holding public office if they “engaged in insurrection or rebellion” against the United States or had “given aid or comfort to the enemies thereof.”
When the case reached the justices, Trump and his allies advanced a host of reasons why the clause shouldn’t be applied to him: that he had neither been charged with nor convicted of insurrection, that the presidency was not among the specific offices listed in the clause, that his due-process rights had been violated by Colorado’s secretary of state, and so on.
In a unanimous ruling, the court instead held that the disqualification clause can’t be enforced against federal officeholders by the states at all. This was an absurd decision on its face. States routinely enforce the federal Constitution’s age, residency, and (in the presidency’s case) natural-born citizenship requirements against candidates for federal office, and there is no evidence that the clause’s framers intended otherwise with the Fourteenth Amendment.
The court’s unsigned opinion ultimately defended the ruling on pragmatic grounds. Allowing states to disqualify insurrectionist candidates, the justices wrote, could result in a “patchwork” electoral map with different states setting different rules. “Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the inauguration,” they claimed. If only there were some sort of court—maybe even a supreme one—that could resolve these differences.
Five of the six conservative justices (excluding Justice Amy Coney Barrett) then went even further and held that only Congress could enforce the disqualification clause through legislation, effectively ruling that federal courts could not apply it, either. There is no evidence that the amendment’s drafters intended for the clause to work this way. Indeed, the clause’s language that allows Congress to lift disqualifications by a two-thirds vote makes little sense if it can impose them with a simple majority.
Since there was no chance that Republicans in Congress would pass such a law, the practical effect was to save Trump from disqualification and render the clause defunct for future federal candidates and officeholders despite the Fourteenth Amendment’s plain text. Political posturing and the court’s own prestige were foremost on the justices’ minds. “The Court has settled a politically charged issue in the volatile season of a Presidential election,” Barrett declared in her concurring opinion, adding that “all nine justices agree on the outcome of this case” and “that is the message that Americans should take home.”
Things got worse a few months later when the court handed down Trump v. United States. There is no constitutional basis whatsoever for the notion that presidents enjoy absolute criminal immunity for their official acts. It is a blasphemous rejection of the basic ideals of American civic philosophy, and flies in the face of 250 years of constitutional practice and design.
Chief Justice John Roberts and his conservative colleagues invented presidential immunity out of thin air. The decision is indefensible even on originalist grounds because the Constitution’s text makes no mention of presidential immunity, even as it explicitly grants limited forms of immunity to members of Congress in certain circumstances. The court’s unspoken but apparent goal was to reverse the post-Watergate dynamic of investigating presidential wrongdoing, which allegedly robbed the executive branch of its “energy.”
Some critics have charged that these two rulings represent some sort of unspoken bargain with Trump, or perhaps a personal allegiance to him. A better explanation is that the court went beyond the Constitution’s text to resolve what it saw as pressing national issues along policy lines that the justices favored. Indeed, as I noted last spring, Trump’s executive order itself was likely intended to force the court to address birthright citizenship—and potentially weaken it by putting the justices’ own spin on it.
An underappreciated aspect of the immunity ruling is that it is framed as a compromise of sorts. Even as Roberts lays out a complex rubric for presidential immunity that shields Trump from legal consequences, he rejects Trump’s equally nonsensical theory that presidents can only be charged with crimes if they’ve been impeached for them.
“Trump asserts a far broader immunity than the limited one we have recognized,” Roberts wrote for the court, before detailing how Trump’s impeachment-first argument misread the constitutional text. “The [Justice Department] for its part takes a similarly broad view, contending that the President enjoys no immunity from criminal prosecution for any action,” he then added in the next section, as if the two arguments were on equal footing.
In those cases, Trump’s extreme positions gave the court’s conservative majority the rhetorical space to frame its own extremism as moderation. Again, the most likely outcome of Trump v. Barbara after Wednesday’s oral arguments is that the court quashes Trump’s executive order across ideological lines. But the justices’ recent interpretive failures in other high-stakes, high-profile cases involving Trump mean that they have forfeited any assumption that they can properly and soberly read the Constitution’s most basic provisions. We’ll find out if they learned from past mistakes when the decision comes down by the end of June.