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.
