Donald Trump’s challenge to the status quo on birthright citizenship for the children of birth tourists and illegal aliens was always a long shot. Now that it has been rejected by the Supreme Court, the big question is what to do next.
We do not blame Trump for the attempt. Presidents are entitled to make their case in the courts for a change in the reading of the Constitution. But the view that birthright citizenship is near-universal and subject only to very limited exceptions has been deeply entrenched since United States v. Wong Kim Ark (1898). Chief Justice John Roberts and the four justices who joined him in the majority declined to stray from the logic of Wong Kim Ark even though that case dealt with a different situation: the child of Chinese nationals who were long-time legal residents rather than transients or illegal immigrants. Justice Brett Kavanaugh, who disagreed with their constitutional analysis but joined the result, concluded that Congress had ratified Wong Kim Ark and that it was not the Court’s place to revisit it unless and until Congress did so first.
The Citizenship Clause of the 14th Amendment provides: “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.” The Court took the traditional view of this broad language that most people in the country are “subject to the jurisdiction” of American law unless they are members of a sovereign Native American tribe or represent a foreign government (such as foreign diplomats). Roberts traced the roots of that doctrine in the antebellum common law and commentary, the views of the attorney general during the Civil War, and the State Department after the adoption of the 14th Amendment (among other sources). Whether or not one finds his account convincing, it is hardly judicial adventurism. The dissenters, most notably Justice Clarence Thomas in a sprawling 94-page opinion, had a heavier lift in explaining why the phrase “subject to the jurisdiction” imported deeper theories of citizenship and allegiance than what would be apparent to an ordinary reader of the constitutional language.
The Wong Kim Ark rule has the advantage of ease and clarity, and that plainly gave the Court pause in unsettling it. In the specific case of parents traveling through the country, how long do they have to be here to be considered legally domiciled in the United States, and what other factors would weigh in such a decision? The majority was not persuaded that an alternative test could easily be located in the Constitution: “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” in the debates over the 14th Amendment, let alone its language. Given that silence, the Court balked at being asked to supply the details on its own.
Indeed, even some of the dissenters were not so certain where exactly the constitutional line lies. Kavanaugh preferred to resolve the case on statutory grounds because “after reading those scholarly opinions” of his colleagues, “one thing seems evident: The constitutional issue is not straightforward, much as we might want it to be.” Justice Neil Gorsuch wrote that “I harbor doubts” about whether “a child born here to parents who have long chosen to make this Nation their permanent home [is] not a citizen . . . solely because his parents’ presence violates statutory law? If those parents are not domiciled here, then where are they domiciled?” Justice Samuel Alito wrote that “a great many persons” born to parents here illegally are dual citizens because of the laws of their parents’ home countries, but that requires an examination of each foreign country’s law. Alito also expressed concern about what happens to children born and raised here outside the law through no fault of their own, and interpreted Wong Kim Ark as a decision aimed at avoiding having “a population permanently caught in limbo.” The dissenters’ doubts are further reason to tamp down outrage at a good Court — one that on the same day rejected radical theories of transgenderism to keep male athletes out of girls’ sports — even if one disagrees with its interpretation of the constitutional text or finds the result of that interpretation appalling.
It might have been wiser if the framers of the 14th Amendment had left the outer limits of birthright citizenship to Congress. Congress can adjust to new and changing situations and can write detailed rules to address distinctions that the courts are ill-equipped to draw based solely on general language. Illegal immigration was an unknown problem when the 14th Amendment was drafted in 1866; as Alito noted, it did not really emerge as a major issue until a century later. Birth tourism was far less practical in the world of the 1860s before air travel. But even Kavanaugh did not argue that Congress could rewrite the rules however it likes; he simply concluded that statutes enacted in 1940 and 1952, which could be changed today, had adopted the Wong Kim Ark rule. All nine justices agreed that there is a constitutional line, even if they were divided on where to draw it.
Still, Congress and the president are not powerless even after Trump v. Barbara. Stricter rules could be applied to discourage and deter birth tourism; Senator John Cornyn has introduced one worthy bill that would add new penalties and give the government immediate detention powers. Illegal immigration, of course, can be stemmed with the border security and enforcement tools the president already has and is actively using. As we have long argued, the most effective tool would be for Congress to mandate an E-Verify system to make it harder for illegal aliens to find work. Even without such a system, the Trump administration could and should step up workplace enforcement of the immigration laws. A political movement that cares about the downsides of birthright citizenship could more productively direct its energies toward considering what is possible than to yelling at the Supreme Court over a hard case.