The Supreme Court's final decision of OT 2025, in Trump v. Barbara reaffirmed the conventional understanding of birthright citizenship under the Fourteenth Amendment, and held President Trump's Executive Order purporting to deny citizenship to the children of temporary visitors and illegal aliens born on U.S. soil unconstitutional. Writing for the Court, Chief Justice Roberts reached to resolve the case on constitutional grounds, eschewing the narrower (and more bulletproof) statutory arguments against the E.O. And as a consequence, the Chief's opinion in Barbara only garnered five votes.
Justice Kavanaugh concurred in the judgment, albeit on statutory grounds, and joined Justices Thomas, Alito, and Gorsuch in rejecting the Court's constitutional claims. None of the justices fully embraced the Trump EO's constitutionality, but the four all rejected the Chief Justice's constitutional holding.
While I believe the Chief Justice's opinion embraced the best interpretation of the Fourteenth Amendment's citizenship clause, I believe it was an error to reach the constitutional question given the clear statutory infirmity of the President's E.O., for reasons I explain in my latest Civitas Outlook column. A decision resting on statutory grounds would have received at least six votes; none of the dissenters addressed the statutory claim to any meaningful degree.
My column concludes:
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.
UPDATE: Some may think any continuing debate over birthright citizenship will be exclusively political. Despite a burst of recent revisionist scholarship, and a handful of responsive works, most assume the academic case for the conventional account of birthright citizenship has been conclusively made. While I remain convinced the conventional account represents the better interpretation of Section 1 of the Fourteenth Amendment--and believe that there is relatively little in the dissents that has not been addressed in the relevant scholarship--I believe it would be an error to assume even the academic debate is over. I say this for several reasons (which I list in no particular order.
First, the best way to interpret the relevant language ("subject to the jurisdiction") is not self-evident, and the specific concerns at issue today were not those at the time of its adoption. While the conventional account makes a strong case for what this phrase means, it is less persuasive at establishing that this language represents a closed set of categories that cannot be modified, stretched, or expanded (particularly if, like most constitutional law scholars, one assumes Section Five of the Fourteenth Amendment grants meaningful power to Congress).
Second, many defenses of the conventional account are too conclusory, dismissing potential complications in the narrative or assuming away potential distinctions that could be drawn (say, for instance, between illegally trafficked enslaved people and illegal entrants or visa overstays).
Third, most legal academics reject originalism as a methodology, so it is unclear that (for purposes of academic debate) originalist accounts of birthright citizenship are those that matter--and unclear the extent to which non-originalist methodologies support the conventional account unless one assumes the desirability of maintaining birthright citizenship (an assumption many people do not share, particularly as applied to illegal immigrants and "birth tourists.").
Fourth, insofar as we are in a legal-political moment in which many people argue the Court should be (even) less active at constraining the body politic from enacting desired policies--that the Court should be more Thayerian--it is not clear why this would not apply as readily to Section 1 of the Fourteenth Amendment as to other constitutional provisions. If the Court should, as a general matter, be less prone to substitute its constitutional interpretation for that of the public, why would that not also apply here?
Whether or not the academic debate continues (on BlueScream some speak of "repercussions" for academics who endorsed citizenship wrongthink), the political debate is likely to rage. Immigration remains a potent and powerful political issue, and even though the Court handed the Trump Administration multiple immigration policy wins, political churn on this issue is likely to continue unless and until there is meaningful legal reform, and that could take some time. So while I am skeptical Barbara will be the new Roe, I am doubtful that the decision truly settled anything other than what the law is, for now. That ain't nothing, but it ain't everything either.
The post Will Trump v. Barbara End the Birthright Citizenship Debate? (UPDATED) appeared first on Reason.com.
