Trump’s audacious bid to end birthright citizenship was not an entire loss at the Supreme Court
CNN
By Joan Biskupic, CNN Chief Supreme Court Analyst
(CNN) — When President Donald Trump used his black Sharpie on his first day back in office to sign an executive order in January 2025 limiting birthright citizenship, he said, “This is a big one.”
It was an audacious gambit.
And in the most essential way, it failed. The Supreme Court by a 6-3 vote rejected his attempt to end the guarantee that all children born on US soil are citizens, regardless of their parents’ immigration status.
The majority reaffirmed a centuries-old understanding of automatic citizenship, buttressed by the 14th Amendment, that dictates “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.”
But the overall Trump effort – as radical as it was – made surprising headway in both the court and public spheres.
The administration gained some mainstream support, including the backing of 25 states and a significant number of members of Congress, for an idea that had long been considered fringe at best. More importantly for the future, while three justices outright dissented, a fourth (Brett Kavanaugh), joined dissenters in finding no 14th Amendment violation. (Kavanaugh signed onto the majority decision blocking Trump’s executive order but based his view on a violation of immigration statutes dating to 1940 and 1952.)
Kavanaugh suggested that Trump might accomplish his goal through new federal legislation.
“Congress could – consistent with the Fourteenth Amendment – amend (the relevant federal laws) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country.”
That concept emboldened Trump and Republican allies Tuesday. The president said in a Truth Social post shortly after the decision in Trump v. Barbara was issued: “The Supreme Court upheld Birthright Citizenship, which is too bad for our Country, but we can easily make it up in Congress through Legislation, with the support of the President, that has now been determined during this process. No long and unwieldy Constitutional Amendment is necessary!”
Trump is wrong that any legislation could override the US constitutional guarantee – at least with this current court. A five-justice majority, led by Chief Justice John Roberts, said the Constitution safeguarded birthright citizenship. He was joined by fellow conservative Amy Coney Barrett and liberals Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.
In his taut and forceful opinion, Roberts suggested there was no turning back. He grounded birthright deeply in the English common law, America’s origins and the Fourteenth Amendment’s Reconstruction-era history.
“Citizenship, then and now, was the right to have rights – to freely participate in our political community,” Roberts wrote. “The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”
Vice President JD Vance spoke of a “silver lining” on Fox News on Wednesday. Kavanaugh’s vote with the other dissenters “means that the concept of birthright citizenship, which is an absurdity to the 14th Amendment, that concept is hanging by a thread.”
The birthright citizenship controversy further served Trump by what it produced in a separate Supreme Court decision last year. When the dispute over his Inauguration Day order first reached the justices, they used the case to dramatically limit the power of lower court judges to block contested presidential initiatives nationwide.
The decision marked a crucial early win for Trump in his second presidency. Lower court judges had been imposing such universal injunctions against the government to prevent Trump’s controversial policies from being enforced across the country.
Centerpiece of Trump’s agenda
Tuesday’s majority and dissenting decisions, covering 189 pages, guarantee the reverberations of Trump’s executive order will continue.
“This ruling is not going to end the debate,” said appellate litigator Charles Cooper, who represented Sen. Eric Schmitt of Missouri and Rep. Chip Roy of Texas, two of the Republican members of Congress who sided with the Trump administration. “If the case has done nothing else, it has brought a bright light of illumination on some of the serious costs of birthright citizenship.”
Justice Samuel Alito, in his dissenting statement, opened with the problem of “birth tourists, women who come here solely for the purpose of giving birth to a child and then promptly return home.” Alito asserted that Tuesday’s decision would preserve “a powerful incentive to enter or remain in this country illegally.”
(The case also galvanized those ready to defend birthright citizenship. Two-thirds of the more than 60 “friend of the court” filings in the case sided with the immigrant-rights groups against Trump.)
Trump had made this executive order the centerpiece of his anti-immigration agenda. The Roberts Court has upheld many other initiatives, including just last week, the Trump administration’s decision to end humanitarian relief known as “temporary protected status” for Haitian, Syrian and other migrants whose home countries are torn by military strife or earthquakes and other natural disasters.
But the effort to curtail birthright citizenship seemed particularly personal to Trump, who had taken the dramatic step of attending the Supreme Court oral arguments on April 1.
Immigrants and their advocates who sued argued that the order denying citizenship to babies born to mothers in the US unlawfully or only on a temporary visa violated the 14th Amendment and federal statutes that mirrored its language.
“The Fourteenth Amendment’s fixed bright-line rule has contributed to the growth and thriving of our nation,” the ACLU’s Cecillia Wang, representing the challengers, had told the justices during oral arguments. “It comes from text and history. It is workable, and it prevents manipulation. The Executive Order fails on all those counts. Swaths of American laws would be rendered senseless, thousands of American babies will immediately lose their citizenship, and if you credit the government’s theory, the citizenship of millions of Americans, past, present, and future, could be called into question.”
Question of ‘domicile’
Trump’s lawyers latched onto the 14th Amendment’s “subject to the jurisdiction” phrase. US Solicitor General D. John Sauer said it required that a person be “domiciled” in the United States, to establish a direct allegiance to the country.
“The Citizenship Clause was adopted just after the Civil War to grant citizenship to the newly freed slaves and their children, whose allegiance to the United States had been established by generations of domicile here,” Sauer argued. “It did not grant citizenship to the children of temporary visitors or illegal aliens, who have no such allegiance.”
But the Roberts majority concluded that Congress never considered making an individual’s domicile a condition of birthright citizenship.
“If Congress intended to hinge citizenship on each individual’s domicile … it is reasonable to expect there would have been at least some discussion of the topic,” Roberts wrote, adding that the word “domicile” barely appeared in the relevant discussion and debate over the Citizenship Clause.
When Roberts announced the decision from the elevated bench on Tuesday, he presented it in a steady matter-of-fact tone, as if the outcome was easy and wholly predicable. And after a relatively swift seven minutes laying out the judgment, he concluded, “We break no new ground here.”
His written opinion was similarly tight at 26 pages.
Yet the passion of the dissenters, which was already fueling Trump administration moves, could not be denied.
In his 91-page dissent, Thomas expressed the harshest assessment of the majority’s decision, as he echoed the Trump administration’s insistence that the 14th Amendment enacted after the Civil War specifically guaranteed citizenship for former slaves and their children.
“(T)he Court adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support.”
As Thomas concluded his opinion, he quoted from Justice John Marshall Harlan’s dissent from the 1896 Plessy v. Ferguson case that upheld racial segregation on trains and other public facilities.
“The Citizenship Clause ‘added greatly to the dignity and glory of American citizenship,’” Thomas wrote, “Today’s opinion devalues that citizenship.”
And Thomas wrote, in a sentiment that Trump would no doubt embrace: “I am not sure that today’s opinion will stand the test of time.”
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