In its ruling today in Trump v. Barbara, the Court ruled by a vote of 6 to 3 that President Trump’s executive order on birthright citizenship is unlawful. It divided 5 to 4 on whether that order violates the Fourteenth Amendment’s Citizenship Clause. And (if my very quick read is correct) it divided four ways—5 to 2 to 1 to 1—on what the Citizenship Clause means.
At bottom: Six justices hold that every child born of parents unlawfully or temporarily present in the United States is a citizen—five under the Citizenship Clause, one (Justice Kavanaugh) under federal immigration law. Perhaps less noticed is that two other justices (Justice Thomas and Justice Gorsuch) leave open the possibility that massive numbers of babies born to illegal aliens are birthright citizens, and the approach of the ninth justice (Justice Alito) means that some difficult-to-quantify (but potentially very large) number of babies born to illegal aliens also are.
Here’s a very brief summary:
1. Chief Justice Roberts wrote the majority opinion. Justices Sotomayor, Kagan, Barrett, and Jackson joined it. The majority holds that the Citizenship Clause guarantees citizenship to every child born of parents unlawfully or temporarily present in the United States. The core argument is that the Reconstruction Congress responded to the Dred Scott decision by enshrining in the Fourteenth Amendment the principle of jus soli (right of the soil) citizenship that the colonists had inherited from English common law.
2. I was expecting that the Court would rule that President Trump’s executive order violates 8 U.S.C. § 1401(a) and thus find it unnecessary to decide the meaning of the Fourteenth Amendment’s Citizenship Clause. Only Justice Kavanaugh in his concurrence in the judgment relies on section 1401(a). He concludes that the provision, enacted in 1940 and re-enacted in 1952, reflects the general rule of birthright citizenship that the Court adopted in its 1898 decision in Wong Kim Ark. (The dissenting justices, I gather, implicitly assume that section 1401(a) means what the Citizenship Clause means. [Addendum/correction: Justice Thomas expressly addresses this at the end of his opinion.])
Kavanaugh goes on to address the meaning of the Citizenship Clause, and he opines that it allows for an exception to birthright citizenship “for those born in the United States to foreign parents unlawfully or temporarily in the country.”
3. In his 91-page dissent, Justice Thomas, joined by Justice Gorsuch, takes the position that the Citizenship Clause does not apply to “persons who were not domiciled in the United States.” A person’s domicile is the place the person settles with an intention to reside there permanently. A child when born is a citizen of the place where his parents are domiciled.
Because the executive order can lawfully apply to some subset of persons who are born in the United States but not domiciled here, he would hold that the executive order is not facially unlawful.
Interestingly, Thomas leaves open the question whether “long-term resident illegal aliens satisfy the elements of domicile because they reside here with the intent to permanently remain.” (See slip op. at 57-58 n. 10.) Indeed, he ought to drop the adjective “long-term” since a person can establish a new domicile immediately. So under his domicile test, it is possible that massive numbers of babies born to illegal aliens are citizens.
4. In his dissent, Justice Alito reads the Citizenship Clause to confer citizenship “on only those children who, at birth, owe allegiance solely to this country.” The Fourteenth Amendment means that “a person born here is not a citizen unless his allegiance to the United States is unimpaired by any obligations to a foreign power.”
As Alito explains, “A great many persons who are born here to illegal immigrant parents fail this test because at birth they are automatically made nationals of their parents’ native country and, as a result, incur duties to that country.” The child of a Mexican parent “can become a Mexican national at birth and acquires certain duties to the government,” including receiving military training and joining the National Guard. Nationals of other countries who generate lots of illegal immigrants to the United States—Guatemala, El Salvador, Honduras, Philippines, and China, among them—likewise owe duties to those countries.
Conversely, I gather that there are some countries that don’t impose obligations on children born to nationals living illegally in the United States. So those children of illegal aliens would satisfy Alito’s allegiance test. I suppose that children born of illegal aliens from Mexico and other countries would as well, if and when those countries change their laws to eliminate the automatic imposition of obligations on them.
I also see that while under Mexico’s Constitution (Article 30) those “born in a foreign country of Mexican parents born in national territory” are “Mexican nationals by birth,” the same would not appear to be true of those born in the United States of Mexican parents who were themselves born in the United States. So that’s another large class of children of illegal aliens (under Alito’s theory) who would have birthright citizenship.