Roberts Slays Trump’s Ludicrous Birthright Citizenship Order

Perhaps the most surprising thing about the majority opinion in Barbara v. Trump, the “birthright citizenship” case announced Tuesday, is how surprising it isn’t. Chief Justice John Roberts, a history major at Harvard, broke no new ground; his majority opinion offered a summary of the historical and legal literature dealing with citizenship, and then briskly rejected what he called the federal government’s “dramatically revisionist view” of the Fourteenth Amendment.

Whether or not those words were meant to sting—“revisionist” is not usually a compliment to a historian—they are sharply on target.

The case concerns the Citizenship Clause that is the beginning (and in a way the foundation) of the Fourteenth Amendment: “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.” Since the amendment entered the Constitution in 1868, courts have read those words to say pretty much what they seem to say—that babies born in the United States are citizens at birth, except for a small minority who are not “subject to the jurisdiction.”

“Subject to the jurisdiction” means what you think it means—you are subject to the jurisdiction because if a cop comes along, they can arrest you; if a plaintiff comes along, they can sue you. The exceptions to “the jurisdiction” are few—today, in fact, the only really relevant category is people covered by diplomatic immunity, who can’t be arrested or sued.

From its adoption in 1868 until sometime in this century, those words have been reminiscent of Uriah Heep in Charles Dickens’s David Copperfield: ““Why, though I am a lawyer, Master Copperfield, I mean, just at present, what I say.” But as immigration became a polarizing issue in the 1990s, the far-right originalism factory suddenly generated a brand-new, shiny “original understanding” of the phrase. It actually means, they explained, “born or naturalized in the United States to parents legally present there.”

It would be so jolly, the anti-immigrant movement began to think, if we could just round up all these babies and ship them off somewhere. Citizens have a full panoply of rights—including the right to live in this country if they darned well please. That was inconvenient.

In the early 1990s, opponents of immigration proposed to change the Clause by constitutional amendment. But the Article V amendment process is, as my old Con Law professor used to say, “a blind canyon into which reform movements march and from which they never emerge.” Soon the focus shifted to stripping citizenship by statute—but that had the disadvantage of requiring a majority vote of both Houses of Congress and the added disadvantage of being unconstitutional. Next, the far-right asked the Supreme Court to do their dirty work for them. In a 2004 case, Hamdi v. Rumsfeld, they asked the justices to decide that the petitioner—a combatant born in Louisiana to Saudi parents, captured in Afghanistan, and held at Guantanamo—was not a citizen because his parents had only been present in the U.S. on temporary visas at his birth. This was an escalation of the theory, since they had been fully legal; the new dogma was that a child’s parents had to be permanent residents.

The Court declined to wield the citizenship knife in Hamdi, though Justice Antonin Scalia, in a separate opinion, did say that Hamdi was only a “presumed” citizen.

That wasn’t much to show for so much effort, so when the Donald Trump era arrived, one ex-Trump official proposed that the boss should go ahead and do it by executive order. And on the first day of Trump’s second term, he did exactly that. Executive Order 14160 proclaimed that as of February 2025, babies born to temporary visitors were no longer to be recognized as citizens.

Much like an executive order that pi = 3 and forgets everything after the decimal point, this order generated controversy. It would cause chaos in American immigration law and beyond, as parents would now be required to prove their own immigration status before their children could get birth certificates, Social Security numbers, or federal funds intended for childhood health and nutrition. And beyond the inconvenience was the fact of impudent, we-don’t-got-to-show-you-no-stinkin’-badges brazenness of the order. “I’ve been on the bench for four decades; I can’t remember another case where the question presented is as clear as this one is,” said one district judge appointed by Ronald Reagan. “This is a blatantly unconstitutional order.”

Four district judges and two court of appeals panels agreed. Then the Supreme Court stepped in to decide the issue. Given this Court’s view of stare decisis, all bets seemed off.

On Tuesday, the Court, remarkably enough, gave the easy answer. The Executive Order was null and void. Chief Justice John Roberts wrote for himself and Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson. His opinion was a brisk 26 pages, written like an A student in an advanced American History class. British common law made every child born in the realm a subject of the king; British colonists brought this jus soli (law of the soil) to the New World, and when the colonies broke off from Britain, they carried it forward, making every child born within their borders a citizen of their state of birth. The pro-slavery Supreme Court under Chief Justice Roger B. Taney then carved out an exception—Black people, regardless of birth, could never be American citizens. The Constitution didn’t do it; Congress couldn’t do it. This rule, in a case called Dred Scott, did much to hasten the Civil War.

After the Civil War, Congress forged an “omnibus” constitutional amendment that was designed to wipe out the power base of Southern slavery and its “lords of the lash.” The first sentence did away with the Dred Scott rule and proclaimed the born-or-naturalized rule of birthright citizenship. The congressional debates around the text of the amendment are—as far as my new best pal John Roberts and I are concerned—utterly clear. Surely, opponents suggested during congressional debate, this couldn’t mean Chinese children were citizens. Actually, it did. How about “Gypsies,”? (As the Roma were often labeled) You can’t mean them. Yes, it meant them. The only exceptions were (1) children of diplomats and (2) children born to Indian nations on reservations. In that “treaty era” of federal Indian policy, the tribal governments were not directly subject to American law; their members could not be haled into U.S. courts the way ordinary Americans could.

There the matter rested until new immigrant flows began to transform the nation in the postbellum era. In 1898, immigration authorities tried to exclude a San Francisco-born Chinese American named Wong Kim Ark because the Amendment surely didn’t include people like him. In 1898, the Supreme Court said, “Why, yes, yes, it did.” And that principle has been the lynchpin of citizenship from then until 2025. As Roberts explained,

The ordinary legal meaning of the text of the Clause thus neatly captures the common law rule, with its broad reach and narrow exceptions. The same groups included (and excluded) by jus soli were included (and excluded) by the conventional understanding of jurisdiction. Excluded by both were the children of foreign ministers and members of 19th-century Indian tribes over whom the United States had ceded a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign (or quasi-sovereign).

No such inter-sovereign concerns apply to children born of parents unlawfully or temporarily present in the United States. . . . . Those children are thus subject to the jurisdiction of the United States. They satisfy both elements of the Citizenship Clause: they are “born . . . in the United States” and “subject to the jurisdiction thereof.” Under the Constitution, they are citizens at birth.

Lawyers for the government had suggested that Wong Kim Ark included a different rule. Citizenship at birth passed only to children of those whose parents were “domiciled” in the U.S.—meaning that they had a fixed home in the country where they intended to remain indefinitely. It’s a nice-sounding rule, but there’s, well, no real evidence that it was or is the rule. “Ahistorical modifiers aside, the Government and the dissent identify no source that defined allegiance at birth as being based on domicile in the period from 1776 to 1868,” Roberts notes.

John Roberts wields a crisp pen, and when the law is on his side, the man is a terror. In 26 economical pages, he leaves the administration’s case exsanguinating on the pavement. As he notes, the most powerful argument on behalf of the “domicile” rule is the dissent in Wong Kim Ark; in other words, the “domicile” gang took their best shot and lost in 1898—and haven’t really been offering much of a challenge since. “Citizenship, then and now, was the right to have rights—to freely participate in our political community,” Roberts concludes.  “The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’”

The Chief wrote for five; the four dissenters split on complicated grounds. Justice Brett Kavanaugh wrote that the administration should lose because the Immigration and Nationality Act of 1952 uses the “subject to the jurisdiction” language and thus indicates that the Congress that passed it accepted the Wong Kim Ark rule. That meant that it wasn’t the meaning of the Clause, but it was the meaning of the statute. Congress could change that rule by statute. (President Trump has already seized on this to say that he will now demand statutory changes. Good luck with that.) Justice Neil Gorsuch dissented to say that he considered the “domicile” rule constitutionally defensible and that the order could go into effect without even needing to overrule Wong Kim Ark.

Justice Samuel Alito dissented on the grounds that, whatever was going on in 1868, the Court should take note that the Democrats had really messed up immigration policy with their “sanctuary cities” and therefore there was no reason to read “subject to the jurisdiction” as narrowly as the framers did.

And then there is Justice Clarence Thomas. The entire opinion in Barbara is roughly 190 pages. No fewer than 93—almost half–of them are devoted to yet another pachydermatous Thomas screed in which he explains that he and only he knows the meaning of every word and phrase in the Constitution. The true meaning of the Citizenship Clause, he announces, “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.”

I have lost my enthusiasm for rebutting a Thomas dissent; his let’s-start-with-Runnymede style is too much like being trapped on a long flight next to a stranger who considers it his duty to provide summaries of every movie he has ever seen. Argument is futile; he’s not even aware you are speaking.

Luckily for all of us, Justice Ketanji Brown Jackson is sitting across the aisle and writes a separate concurrence for the pleasure of puncturing Thomas’s pompous balloon. “Justice Thomas’s telling elides the entire point of the Second Founding: The Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery.” She retells the story of the Amendment from sources all too seldom consulted—the voices of Black Americans themselves in the aftermath of slavery, who clearly understood that no measure aimed only at them would cure the flaws in a nation that had compromised with hierarchy and caste. The Fourteenth Amendment they championed, she writes, aimed to transform the racist antebellum republic into a nation with universal citizenship and unequivocal human rights.

Executive Order 14160, she writes, is chilling proof that

for all the talk about the detestable Dred Scott decision, the Government and the principal dissent propose a return to its core tenet. Their bottom line is that, for certain people, being born on American soil will not suffice to confer citizenship. It is that odious conclusion that the Citizenship Clause plainly rejects, as the Court explains. I add only that the Fourteenth Amendment’s universalist aims should forever be the death knell for this kind of claim—one that seeks to make bloodline the marker of birthright. The America that was reborn from the rubble of the Civil War simply does not countenance that inequitable result.

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