The Supreme Court on Tuesday struck down President Trump’s executive order limiting birthright citizenship, finding that the order violates the 14th Amendment.
Trump’s order declared that children born to parents who are in the United States illegally or temporarily are not American citizens.
Writing on behalf of the majority, Chief Justice John Roberts says children born to parents who are in the United States unlawfully or temporarily are “born in the United States” and “subject to the jurisdiction thereof.”
“Under the Constitution, they are citizens at birth,” he wrote in a 26-page opinion.
“Citizenship, then and now, was the right to have rights — to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today,” Roberts added.
Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented. Justice Brett Kavanaugh concurred in the judgment, but dissented in part, saying Trump’s executive order does not violate the 14th Amendment, but does violate the federal statute that codified the amendment. Kavanaugh’s perspective is that Congress could limit birthright citizenship via federal statute, but has not.
Thomas, in his 91-page dissent joined by Gorsuch, writes, “The Citizenship Clause ‘added greatly to the dignity and glory of American citizenship.’ Today’s opinion devalues that citizenship. I respectfully dissent.”
He argued the Court’s majority had “repurposed the Fourteenth Amendment to protect its own set of preferred rights.”
“I am not sure that today’s opinion will stand the test of time,” he wrote.
Alito, in his own dissent, accused his fellow justices of making a “serious mistake” with Tuesday’s ruling.
“This is one of the most important decisions in the history of the Court, and in my judgment, the court has made a serious mistake,” he wrote, adding that the Court’s ruling “preserves a powerful incentive to enter or remain in this country illegally.”
“If the Fourteenth Amendment required these results, the country would have to live with them or amend the Constitution. But the Fourteenth Amendment does not include the rule the court now imposes on the country,” Alito wrote. “In my judgment, the Court has made a mistake that will seriously affect the country’s future.”
The majority’s decision is a major blow to Trump, who issued the executive order on his first day in office, looking to make good on his campaign promise to end “birth tourism” and to crack down on immigration.
The order was challenged in a number of lawsuits, including the nationwide class-action lawsuit that came before the Supreme Court. The class-action suit was filed by the American Civil Liberties Union on behalf of families affected by the policy. The suit, led by a Honduran woman identified only as “Barbara” to protect her identity, argued the order was unconstitutional and in violation of the 14th Amendment’s guarantee of birthright citizenship.
Attorneys defending the order argued, in part, that the 14th Amendment required people to be “domiciled” in the U.S. before being entitled to birthright citizenship, meaning individuals must have the intent to remain in the country.
Roberts rejected the argument in his opinion.
“If Congress intended to hinge citizenship on each individual’s domicile — a question that ‘is sometimes a matter of great difficulty to decide’ — it is reasonable to expect there would have been at least some discussion of the topic,” Roberts wrote.
“Yet the word ‘domicile’ appears just twice in the discussion of the relevant provision of the Civil Rights Act. And it appears in only one speech from the Citizenship Clause debates—as part of an explanation of why state citizenship is distinct from national citizenship under the Constitution.”
House Speaker Mike Johnson reacted to the ruling during a press conference on Tuesday, saying he is “very disappointed in that outcome.”
“I think it subjects the country to serious challenges going forward, and we’ll deal with it as a Congress,” he said.
He said while the ruling could be seen as in line with a “textualist, originalist view” that “birthing tourism” has been “grossly abused in recent years.”