Slate‘s Mark Joseph Stern had the same reaction to yesterday’s ruling that Steven Taylor and I did: “The Supreme Court’s 5–4 Vote in the Birthright Citizenship Case Is a Scandal.”
On Tuesday, the Supreme Court ruled that the first sentence of the 14th Amendment means exactly what it says: Birthright citizenship is the nation’s fundamental law, and Donald Trump cannot repeal it via executive order. The vote was 5–4. This outcome is, of course, a relief. But the margin is a scandal. It is nothing short of stunning that Trump came one vote away from persuading the Supreme Court to repeal the bedrock of the Reconstruction Amendments based on a brazenly partisan contortion of their text and history. A view held only by fringe, far-right nativists until very recently has secured support from four of the nine members of the court: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. This is a shocking development that should upend all expectations that this court can be trusted to apply the most basic constitutional guarantees when a Republican president seeks to nullify them. If a theory flatly rejected by all serious legal scholars and historians can come one vote away from success, no rights are safe. Everything is on the table.
Start with the good—because it really is worth celebrating, however cautiously: Chief Justice John Roberts’ majority opinion in Tuesday’s case Trump v. Barbara gets it exactly right. The United States inherited universal birthright citizenship from England and maintained it after the Revolution, with the glaring exception of slavery. Southern states refused to acknowledge the citizenship of Black Americans, and the Supreme Court notoriously embraced their view in 1857’s Dred Scott. That evil decision helped precipitate the Civil War. Once the slave power had been vanquished, the Reconstruction Congress sought to enshrine birthright citizenship in the Constitution so it could never be stripped away again. It did so in 1868 through the 14th Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens” of the nation.
Roberts walks through the congressional debates over the amendment to show that its framers recognized that their handiwork would apply to the children of immigrants. These debates also revealed that the phrase subject to the jurisdiction thereof had a particular meaning: It allowed “narrow exceptions” for the children of “foreign ministers” and certain “Indian tribes over whom the United States had ceded a part of its territorial jurisdiction.” In other words, the government relinquished its power to subject these individuals to the full force of its authority “to preserve its relationship with a foreign sovereign.” But “no such intersovereign concerns,” Roberts explains, “apply to children born of parents unlawfully or temporarily present in the United States.” Their parents are subject to the jurisdiction of the government, and so, “under the Constitution, they are citizens at birth.” Trump’s attempt to take away their citizenship is therefore unconstitutional.
This holding should have been 9–0. Yet it was somehow 5–4, with Justice Amy Coney Barrett and the three liberals joining Roberts in full. His account is the only remotely plausible reading of the 14th Amendment and its historical record. Indeed, the Supreme Court had already reached this very conclusion in 1898’s Wong Kim Ark, as Roberts stresses. The same court that blessed “separate but equal” in Plessy v. Ferguson was able, in Wong Kim Ark, to see that the children of immigrants receive automatic birthright citizenship.
All of this is simply indisputable. While I’m rather sympathetic to the idea that children born to illegal immigrants, tourists, and the like shouldn’t automatically gain citizenship, the legislative and judicial history makes it clear that the 14th Amendment nonetheless grants it. And Congress has repeatedly reinforced that in statute, including removing Indian tribes from the category of those not subject to jurisdiction (and thus granting them birthright American citizenship). That the Plessy v. Ferguson court recognized as much really is the cherry on top.
So, how could four Constitutional scholars of such standing to be appointed and confirmed to the highest court in the land rule otherwise? It wasn’t easy.
Kavanaugh writes that Trump’s executive order is unlawful under a federal statute that mirrors the 14th Amendment but not under the amendment itself; he asserts that temporary or unauthorized immigrants today are “relevantly similar” to foreign ministers in 1868, so Congress could deny their children birthright citizenship if it wished.
I would have been fine with Kavanaugh ruling that, because our immigration laws grant birthright citizenship to these folks, a ruling on the Constitutional question was unnecessary. There is a longstanding tradition, especially with conservative Justices, to reserve Constitutional interpretation for cases where statutory law is in conflict.
But the notion that temporary or unauthorized immigrants are in any way comparable to diplomatic personnel is simply absurd. The latter are, by ancient tradition long predating our Republic, immune from prosecution under our laws unless their home nation waives that protection. We grant that protection so that our own diplomats are granted reciprocal protection when serving abroad. Tourists and illegal immigrants are absolutely subject to our laws.
Meanwhile, Thomas, Alito, and Gorsuch would have upheld the order against the plaintiffs’ facial challenge, holding that it is not unlawful in its entirety. Thomas and Gorsuch would have written words into the amendment that are not there, requiring parents to have “domicile” in the United States and “primary allegiance” to its government in order for their offspring to receive birthright citizenship. Alito argues that children must not be “subject to any foreign power” to receive the promise of the 14th Amendment—so if their parents’ foreign citizenship gets passed on by descent, they do not become U.S. citizens at birth.
Again, in theory, I think this is what the law ought to be. (The reality of administering that law, though, is sufficiently complicated as to quite possibly override the theoretical benefits.) But it decidedly isn’t what the law is. It is the view of the two dissenters in Wong Kim Ark, who took the bizarre stance that international law and prior U.S. statutes somehow overrode the plain language of the U.S. Constitution. The six Justices in the majority saw the plain language for what it is.
The narrowness of the ruling is concerning. Not only do we have four Justices willing to ignore the plain language of the U.S. Constitution and longstanding precedent if it serves their policy preferences, but it means we’re potentially one Trump appointee from overriding it. Thankfully, the oldest of the dissenters, Justice Sonja Sotomayor, only just turned 72.
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