The Supreme Court's rejection of President Donald Trump's attempt to restrict birthright citizenship may have settled the immediate legal fight, but scholars and conservative activists are already looking for ways to reopen it, including through a long-term strategy modeled on the campaign that overturned Roe v. Wade.
"Trump v. Barbara was not a win; it was a reprieve," Anna O. Law, a CUNY political scientist who studies constitutional law and immigration, told The Atlantic.
The Supreme Court ruled June 30 that children born in the United States to parents who are undocumented or temporarily present are citizens at birth. The formal judgment was 6-3, although only five justices concluded Trump's executive order was prohibited by the Fourteenth Amendment.
Justice Brett Kavanaugh agreed the order could not stand under existing federal law but left open the possibility that Congress could create some restrictions.
That divide has encouraged conservatives seeking to narrow birthright citizenship. University of Minnesota law professor Ilan Wurman, whose scholarship challenging the conventional interpretation of the Fourteenth Amendment was cited during the case, called four votes for restrictions "a huge victory" for a position previously viewed as outside the legal mainstream.
Some conservative strategists are explicitly invoking the decades-long campaign against abortion rights. Rachel Bovard wrote in First Things that opponents should challenge Trump v. Barbara using "the model that dismantled Roe" and argued that the case should become a test for future conservative judicial nominees.
The Trump administration has meanwhile continued pursuing narrower restrictions. On August 6, Trump signed new executive orders targeting what the administration calls "birth tourism" and seeking to deny citizenship documentation in several categories involving foreign nationals.
Those measures are already facing legal scrutiny. A federal judge last week questioned whether some of the new exceptions have a basis in the Supreme Court's ruling, while declining for procedural reasons to immediately block the order.
Whether conservatives can ultimately overturn Barbara remains uncertain. UC Davis law professor Mary Ziegler told The Atlantic that comparisons with Roe may "underestimate the level of difficulty," noting that birthright citizenship is expressly rooted in constitutional text rather than a right inferred by the Court.
