The Court may have issued a ruling on birthright citizenship, yet the discussion surrounding birthright citizenship and the Fourteenth Amendment is likely to persist.
The Supreme Court’s concluding ruling in OT 2025, delivered in Trump v. Barbara, reaffirmed the standard interpretation of birthright citizenship under the Fourteenth Amendment and struck down the President’s Executive Order that attempted to strip citizenship from the children of temporary visitors and undocumented residents born on U.S. soil. In delivering the opinion for the Court, Chief Justice Roberts chose to decide the matter on constitutional grounds, sidestepping the narrower (and more robust) statutory challenges to the E.O. Consequently, the Chief’s opinion in Barbara drew only five votes.
Justice Kavanaugh concurred in the judgment, but on statutory grounds, and aligned with Justices Thomas, Alito, and Gorsuch in rejecting the Court’s constitutional rationale. No Justice fully embraced the constitutionality of the Trump E.O.; however, the quartet rejected the Chief Justice’s constitutional ruling.
While I believe the Chief Justice’s reading represents the strongest interpretation of the Fourteenth Amendment’s citizenship clause, I contend it was a mistake to reach the constitutional question given the E.O.’s clear statutory defects, for reasons I explain in my latest Civitas Outlook column. A decision grounded in statutory reasoning would have attracted at least six votes; none of the dissenters engaged with the statutory claim in any meaningful way.
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.
