Stare Decisis and Birthright Citizenship Dissents

The factor that we’ve heard too little about in Trump v. Barbara is the role of stare decisis, the doctrine of respecting settled precedents. Not a single justice mentioned the issue explicitly. On one level, that is not surprising. The signal precedent on birthright citizenship of the children of foreigners, United States v. Wong Kim Ark (1898), did not involve the two subjects of Donald Trump’s executive order: the children of transients (or “birth tourists”) and the children of illegal aliens. Moreover, the government conspicuously declined to ask the Court to overrule Wong Kim Ark.

Justice Clarence Thomas, in his dissent, insisted that his reading of the citizenship clause to bar the children of transients from birthright citizenship “is fully consistent with” Wong Kim Ark. When even Thomas isn’t trying to flip the table, it’s not going to flip.

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Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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The factor that we’ve heard too little about in Trump v. Barbara is the role of stare decisis, the doctrine of respecting settled precedents. Not a single justice mentioned the issue explicitly. On one level, that is not surprising. The signal precedent on birthright citizenship of the children of foreigners, United States v. Wong Kim Ark (1898), did not involve the two subjects of Donald Trump’s executive order: the children of transients (or “birth tourists”) and the children of illegal aliens. Moreover, the government conspicuously declined to ask the Court to overrule Wong Kim Ark.

Justice Clarence Thomas, in his dissent, insisted that his reading of the citizenship clause to bar the children of transients from birthright citizenship “is fully consistent with” Wong Kim Ark. When even Thomas isn’t trying to flip the table, it’s not going to flip.