The Supreme Court rebuked Donald Trump’s attempt to redefine the long-established question of who qualifies as a U.S. citizen under our constitutional order, but it was a far closer call than most legal experts had been expecting.
On Tuesday, Chief Justice John Roberts found on behalf of a 5-4 majority that the text and history of the 14th Amendment enshrines the constitutional right to birthright citizenship.
“Citizenship, then and now, was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land,’” Roberts wrote in 26-page majority opinion. “We keep that promise today.”
Only Justice Amy Coney Barrett joined Roberts among the court’s conservatives, and all of the court’s liberal justices joined his decision. Justice Brett Kavanaugh joined the 6-3 majority that agreed that birthright citizenship was the law of the land, but he believed that it was only protected by statute, which could be erased by a bare congressional majority. Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito dissented.
In the immediate wake of the decision, immigration expert Andrea Flores and I discussed the decision and the message received by Trump — or any other president — of a defeat by such a narrow margin on an executive order that radically redefined a constitutional amendment.
The first sentence of the 14th Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
During oral arguments in April, Trump’s former defense attorney turned solicitor general John Sauer suggested that birthright citizenship was a relic of the Reconstruction era, incompatible with a “new world” of air travel and globalization.
“It’s a new world, but it’s the same constitution,” Roberts responded at the time.
It turns out that the Supreme Court’s barest majority agreed with him.
I’ll share more thoughts soon on the 193 pages of opinions, concurrences, and dissents. For now, here is a quick reaction with an informed expert.
Read the opinions and dissents here.
