It was foolish for the Trump admin to pick this fight rather than trying to present an argument laser-focused on non-domiciliary transient birth tourists.
The first thing to understand about the dissents in Trump v. Barbara is that they are not about children of illegal immigrants.
The Trump executive order on birthright citizenship challenged the constitutional basis for citizenship of the children of two classes of people. One was transients through the country, or “birth tourists,” who never took up residence in America long enough to make a home here; the other is illegal immigrants. But through 143 pages of dissents (including Justice Brett Kavanaugh’s concurrence in the result, which disagreed with the majority’s constitutional holding), nobody actually makes a serious, full-dress constitutional argument that the children of illegal aliens are not entitled to birthright citizenship.
That’s a pretty startling fact, and in any other situation, it would lead to second-guessing of Donald Trump’s legal strategy in marrying a weak argument to a potentially stronger one. A personal confession: When I started digging deeply into the history back in 2018, I was scornful of the arguments against birthright citizenship, partly because they seemed to rest so heavily on clear misrepresentations of the history, and partly because they were so heavily focused on illegal immigration. As I delved more deeply into the legal-historical scholarship, a good deal of it done in the past few years, I came around to the view that the case for denying citizenship to children of transients was a much closer one than I had supposed.
The solicitor general, D. John Sauer, apparently agreed. When tasked with defending the Trump executive order, his briefs put the transients argument first, and the illegal aliens argument second; at the argument, he signaled the same thing, but was bound to craft his argument in a way that didn’t allow for clear daylight between its two prongs. Maybe the administration should have tried that.
The problem, however, is the numbers and the energy. The activists pushing to roll back birthright citizenship were focused on the illegal immigrant issue for years before they really started to zero in on birth tourism. You can see why. The border-hawk Center for Immigration Studies (CIS) estimated “225,000 to 250,000 births to illegal immigrants in 2023, amounting to close to 7 percent of births in the U.S.” Pew Research Center estimated “about 245,000 babies born to mothers who were unauthorized immigrants and fathers who were not citizens or lawful permanent residents,” plus “about 15,000 babies born to mothers who had legal temporary status and fathers who were not citizens or lawful permanent residents,” amounting to “about 9% of all 3.6 million babies born in the U.S. that year.” These are very big numbers, and if you reject the premises of expansive birthright citizenship and oppose illegal immigration, they would seem to demand a response. By contrast, CIS in 2020 (looking at pre-pandemic figures) estimated “20,000 to 26,000 possible birth tourists a year.” They estimated “about 70,000 births to temporary visitors in 2023,” including “long-term temporary visitors such as guestworkers, foreign students, exchange participants, and members of the diplomatic corps,” but that would seem to cast a much broader net as well as including people already excluded from the citizenship clause.
These are numbers large enough to merit public concern. But they are not the kind of thing that justifies sky-is-falling rhetoric, and they are a small fraction of the volume of births that result from illegal immigration.
When you actually read the opinions, you can see that the four constitutional dissenters have remarkably little to say on the question. Justice Clarence Thomas spends 91 pages hammering home his argument that the central test for whether parents are “subject to the jurisdiction of the United States,” such that their children qualify for birthright citizenship, turns on the “domicile” of the parents, which is largely equated with residence. But illegal immigrants in many cases are people who intend to, and do, establish a long-term residence in the United States with the hope or plan of making it permanent. Not until a footnote on page 57 does one encounter Thomas’s concession that “I would reserve for another day the question whether the children of illegal aliens can be domiciled here.” He adds that “the Government and several scholars have suggested some reasons why, they believe, illegal aliens can never be domiciled here,” such as that “he is subject to potential removal at any time” or that an illegal alien “lacks the legal capacity to establish domicile.” But Thomas acknowledges that he is not offering an answer to the question: “That said, many others understandably have suggested that long-term resident illegal aliens satisfy the elements of domicile because they reside here with the intent to permanently remain.”
Justice Neil Gorsuch was even blunter in throwing up his hands on this part of the case: “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?”
Kavanaugh was, if anything, even more baffled, commenting that “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.” And his argument for excluding the children of illegal aliens was bluntly grounded on living constitutionalism in response to “modern situations,” given that “significant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868 and that the Framers of the Fourteenth Amendment could not have fully anticipated.” That’s a fine argument for why the Framers of that amendment should have given Congress more leeway to adjust the rules over time, but they didn’t, and Thomas has the answer why: They were “worried that ‘as soon as the Democrats came into power,’ they would repeal” the Civil Rights Act of 1866, which the 14th Amendment aimed to constitutionalize.
Only Justice Samuel Alito made anything resembling an argument on this point. But he didn’t exactly enunciate a standard, let alone one that his dissenting colleagues joined. He argued that “a great many persons” born to parents here illegally are dual citizens because of the laws of their parents’ home countries, and therefore are arguably subject to a foreign jurisdiction. But that turns on the details of each foreign country’s laws, which in turn were quite different in 1866. Even his references to Mexican law are, as Ed Whelan observes, subject to some further nuances. And rather than make any case that this issue was considered in 1866–68 or addressed in the text, Alito concedes that the problem of illegal immigration was largely a new one as a major issue that arose after changes to U.S. immigration law in 1965.
There’s also the way that Alito and Thomas address the Wong Kim Ark decision. Both suggest that the Court was sympathetic to Wong Kim Ark because Chinese nationals were barred at the time from being naturalized under American law and were, as Thomas adds, threatened with bloody reprisals in China if they returned home or even renounced their Chinese citizenship. Thus, Alito wrote, “they had done everything within their power to express their desire and intent to become Americans,” and would otherwise have been “a population permanently caught in limbo.” Thomas added that they “had no path to citizenship and no means of freeing themselves from the grasp of China.”
Is that really the test? It’s not hard to make a case that many illegal immigrants have become as American or at least as settled here as the law would allow them, face significant obstacles to return home, and are eager to free themselves from the grasp of their native lands. Once again, the mental gymnastics needed to justify this argument seriously undermines the simple clarity of the point Thomas makes for page upon page about how the place of one’s domicile is the decisive factor.
In defense of the three dissenters, all of whom made this point explicitly, one should note that they had a legitimate procedural reason for focusing almost entirely on transients. The Trump executive order was challenged on its face (that is, the whole thing was challenged), rather than as applied to any particular person. In a facial challenge outside the free speech area, there’s a high bar to show that the government action is illegal in any situation. Thus, per the dissents, it is not necessary to reach the illegal alien question in order to reject the facial challenge and leave for another day whether there are some applications of the order (i.e., regarding children of illegal aliens) that are unconstitutional.
That being said, the Court decides the status of illegal aliens’ children, and if there was a strong case to be made that the Court got it wrong, one would have expected at least somebody among the dissenters to explain how and why. That none of them rose to its defense in anything but perfunctory fashion suggests why it was foolish for the Trump administration to pick this fight rather than trying to present an argument laser-focused on non-domiciliary transient birth tourists.