A crowd of people gathered at the Great American State Fair on Thursday stopped to gaze up at the sky as several fighter jets streaked over the National Mall. Blake Boggs crouched down to his young son’s stroller and pointed up. “You don’t get to see the Thunderbirds anywhere,” he told The Hill. Despite the…
ACTION NEEDED NOW: Please Write Email Supporting President Trump’s USPS Mail-In Ballot EO Today A corrupt federal judge blocked the U.S.
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The Supreme Court’s ruling this week on birthright citizenship in Trump v. Barbara totaled approximately 194 pages. I wrote earlier this week about the various positions that each of the justices took. But it is worth dwelling for an extra moment on the unusual position taken by Justice Brett Kavanaugh in just 10 strange pages.Unlike the rest of his colleagues, Kavanaugh took the position that Trump’s executive order was constitutionally permissible but statutorily illegal. In other words, the Fourteenth Amendment’s citizenship clause did not block Trump’s effort to curtail birthright citizenship, but an act of Congress that used identical language did.At a very superficial level, this might sound sensible and moderate by implicitly inviting Congress to address the situation. Kavanaugh certainly positions the opinion—and himself—as such. On closer inspection, it might be the most dangerous and extreme view of U.S. citizenship to be articulated by the justices this week.To understand Kavanaugh’s position, a brief sketch of the other justices’ views is necessary. Last January, Trump issued an executive order that instructed federal agencies to not recognize the U.S. citizenship of children whose parents were undocumented immigrants or living in the United States on temporary visas. A group of plaintiffs sued, arguing that this violated the Fourteenth Amendment’s citizenship clause.That clause reads as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In the 1898 case United States v. Wong Kim Ark, the Supreme Court ruled that the son of two Chinese immigrants in San Francisco had acquired U.S. citizenship at birth solely by virtue of being born on American soil. The “subject to the jurisdiction” exception was narrowed to a handful of situations that rarely apply today.In Tuesday’s ruling in Barbara, the justices essentially took four separate positions. Five of them took what can be described as the consensus view. Americans had inherited the rule of birthright citizenship from the English common law, Chief Justice John Roberts explained in his majority opinion. Dred Scott v. Sandford’s holding that people of African descent were ineligible for U.S. citizenship was a violation of that rule, and the Fourteenth Amendment’s citizenship clause restored and entrenched the original understanding.Two of Roberts’s fellow conservatives, Justices Clarence Thomas and Neil Gorsuch, took a different view. Thomas affirmed Wong Kim Ark as correct but argued a person’s domicile status—or, more specifically, that of their parents—also determined whether that person had U.S. citizenship at birth. Since Trump’s executive order was lawful in at least some circumstances, like birth tourism, the two justices rejected the facial challenge to its constitutionality.At the same time, both justices signaled that even if their domicile-focused view had prevailed, it would not grant total victory to the Trump administration. Thomas and Gorsuch concluded that children of temporary visa holders would not be eligible, and their respective dissents largely focused on that aspect of the order. But both justices wrote that they would not necessarily reach the same conclusion for children of undocumented immigrants, especially if they had lived long-term in the U.S.The third position was adopted solely by Justice Samuel Alito, who argued that the clause “confers citizenship on only those children who, at birth, owe allegiance solely to this country.” He argued that Wong Kim Ark should be read much more narrowly by the court since, in his view, it showed “little respect for precedent.” Instead, Alito leaned heavily on phrasing in the Civil Rights Act of 1866, which only extended U.S. citizenship to those “not subject to any foreign power,” a narrower phrasing than the clause that was ratified three years later.Even then, Alito ultimately concluded that Wong Kim Ark was correctly decided. The Chinese Exclusion Acts had made it impossible for Chinese immigrants to be naturalized, so Wong’s parents faced a different threshold under the clause. “By establishing domicile, they had done everything within their power to express their desire and intent to become Americans,” Alito explained.“Wong Kim Ark is therefore best understood as holding that people who are lawfully present here, establish the United States as their intended permanent home, and do everything within their power to become United States citizens can be seen as no longer subject to any foreign power,” Alito argued.That brings us, at last, to Kavanaugh. He voted with the majority to strike down the order on different grounds from those of Roberts and the other four justices in the majority. Kavanaugh said that he found the constitutional issue to be “far more complicated” than the statutory one.
As the Supreme Court handed down a landmark ruling on the last day of its term protecting birthright citizenship and invalidating a signature policy of President Donald Trump's administration, Justice Clarence Thomas took a swipe at the majority in his dissent, stunning legal experts with an argument that would have effectively rewritten 14th Amendment protections out of the Constitution for millions of people.But Justice Ketanji Brown Jackson went out of her way in her concurrence with Chief Justice John Roberts' majority opinion to demolish Thomas' argument — and in particular, point out that he was talking out of both sides of his mouth on how to interpret constitutional rights."I write separately to respond to some of the themes in the principal dissent," wrote Jackson. "Despite his longstanding endorsement of a 'colorblind' Constitution, Justice Thomas now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to 'freed slaves such as Dred Scott,' ... and those who shared with them certain characteristics ... It is for this reason, he says, that 'children who were born in the United States but [to parents] not domiciled here' are not entitled to claim birthright citizenship."This, noted Georgia trial lawyer and legal analyst Andrew Fleischman in a post to X, is a "pretty good burn here.""Justice Thomas says that the 14th Amendment does not allow us to treat people differently on the basis of their race to help them (affirmative action, voting rights). But then he says it was also laser-focused on restoring citizenship for black Americans," he wrote. Ultimately, Jackson's concurrence noted, Thomas is wrong on the latter point anyway."That narrow vision of the 14th Amendment bears little relationship to the history of its ratification," she wrote. "Even worse, Justice Thomas's telling elides the entire point of the Second Founding: The Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery."The majority opinion by Roberts agrees with this assessment, noted Slate's Mark Joseph Stern, detailing the history that proves Congress in the 1860s understood and affirmed birthright citizenship would apply to the children of immigrants.
