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The Supreme Court struck down Executive Order 14160 on June 30, preserving birthright citizenship for children born in the United States to parents who are unlawfully or temporarily present. The order, titled Protecting the Meaning and Value of American Citizenship, had been blocked by lower courts and never took effect.
In Trump v. Barbara, the Court held that the Fourteenth Amendment grants citizenship at birth to children born on U.S. soil in these circumstances. The decision forecloses, for now, an executive attempt to end jus soli citizenship.
The ruling was 6-3 against the order. Chief Justice John Roberts wrote for the Court and was joined by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson. Those five justices adopted the constitutional reasoning.
Justice Brett Kavanaugh provided the sixth vote against the order but relied on statutory grounds, leaving open the possibility that Congress may have some authority to act. Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito dissented.
The government did not ask the Court to overturn Wong Kim Ark, the 1898 case recognizing citizenship for a child born in San Francisco to Chinese parents. Instead, it argued that “domicile” should control who falls under the citizenship clause, excluding children of temporary or unlawful residents.
Roberts rejected that argument, saying there was little evidence for the government’s revisionist reading. He described citizenship as “the right to have rights” and framed the Fourteenth Amendment as a guarantee extended to free-born persons in the United States.
Congressional action remains contested
After the ruling, Trump urged Congress to legislate on citizenship, and House Speaker Mike Johnson said the House would take up the issue.
Whether Congress can change the rule by statute remains disputed. John Eastman, the former Trump lawyer associated with arguments against birthright citizenship, said he did not think Congress could resolve the issue unless the Court revisits it.
One view is that the only durable path for opponents of birthright citizenship would be a constitutional amendment. That would require either:
A two-thirds vote in both the House of Representatives and the Senate; or
A convention called by Congress at the request of two-thirds of state legislatures.
Any amendment would then need ratification by three-quarters of the states.
Effect on birth tourism
The decision leaves the legal basis for birth tourism intact. Birth tourism refers to traveling to the United States to give birth so the child acquires U.S. citizenship through jus soli.
If the government’s domicile theory had prevailed, that pathway would have narrowed sharply. Because the Court rejected the executive order, the United States remains among the limited group of countries, mostly in the Americas, that continue to recognize unconditional birthright citizenship.
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The U.S. Supreme Court struck down Executive Order 14160 on June 30, preserving birthright citizenship for children born on U.S. soil to parents who are unlawfully or temporarily present in the country.
The 6-3 ruling in Trump v. Barbara held that such children are citizens at birth under the Fourteenth Amendment. The order, titled Protecting the Meaning and Value of American Citizenship, had already been blocked by lower courts and never took effect.
Chief Justice John Roberts wrote for the Court, joined by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson. Those five justices adopted the constitutional reasoning that the Fourteenth Amendment protects birthright citizenship in these circumstances.
Justice Brett Kavanaugh provided the sixth vote against the executive order but relied on statutory grounds rather than the same constitutional reasoning. His concurrence left open the question of whether Congress could attempt to legislate on the issue.
Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito dissented.
The government did not ask the Court to overturn United States v. Wong Kim Ark, the 1898 decision recognizing citizenship for a child born in San Francisco to Chinese parents. Instead, it argued that “domicile” should be the controlling test, excluding children of temporary or unlawful residents from automatic citizenship.
Roberts rejected that argument, finding little support for the government’s position. The majority treated birthright citizenship as a constitutional guarantee rooted in the Fourteenth Amendment.
Congressional path remains contested
After the ruling, Donald Trump urged Congress to legislate on citizenship, and House Speaker Mike Johnson said the House would take up the issue.
Whether Congress can validly restrict birthright citizenship by statute remains disputed. John Eastman, the former Trump lawyer associated with arguments against birthright citizenship, said he did not think Congress could fix the issue unless the Court revisited the question.
One possible route for opponents of birthright citizenship would be a constitutional amendment. That would require either:
a two-thirds vote in both the House of Representatives and the Senate; or
a convention called by Congress at the request of two-thirds of state legislatures;
followed by ratification by three-quarters of the states.
Effect on birth tourism
The ruling leaves the legal basis for birth tourism unchanged. Birth tourism refers to traveling to the United States to give birth so that the child acquires U.S. citizenship through jus soli.
Had the government’s domicile theory prevailed, that pathway would have narrowed sharply for children born to temporary visitors or unlawfully present parents.
Unconditional birthright citizenship remains available in a limited group of countries, mostly in the Americas. For now, the United States remains one of them.
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Source article: www.imidaily.com
