The Supreme Court’s decision on Tuesday to preserve birthright citizenship comes as a relief. President Trump’s unilateral effort to prevent the children of undocumented immigrants from automatically becoming citizens was plainly unconstitutional. His executive order violated the 14th Amendment, which declares in its opening sentence, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
Mr. Trump’s case rested on the phrase “subject to the jurisdiction thereof,” with his lawyers claiming that the children of parents who came to this country illegally were not subject to the jurisdiction of the U.S. government. But as the majority opinion by Chief Justice John Roberts shows, the history of the citizenship clause of the 14th Amendment, ratified in 1868, makes clear that “subject to the jurisdiction” refers to the power of the United States to govern people within its territory. Federal and state laws do, of course, apply to the children of migrants. They are not diplomats with immunity.
“Citizenship, then and now, was the right to have rights — to freely participate in our political community. The framers of the 14th Amendment extended that promise to ‘every free-born person in this land,’” Chief Justice Roberts writes. “We keep that promise today.”
The Supreme Court rightly stood up for the Constitution by rejecting Mr. Trump’s spurious argument. His order was bad for the country in other ways, too. It treated immigrants as a threat rather than a benefit. Birthright citizenship has helped the United States integrate immigrants more successfully than countries that lack it. It is one reason immigrants in the United States work at higher rates and commit crimes at lower rates than native-born citizens, neither of which is true in much of Europe. All people who are born in this country, regardless of their background, have equal claim on being an American.
Chief Justice Roberts wrote for a majority of only five. Justices Neil Gorsuch, Clarence Thomas and Samuel Alito dissented. Justice Brett Kavanaugh concurred in the ruling but disagreed about the meaning of the Constitution. He said Mr. Trump’s order violated not the 14th Amendment, but a statute Congress passed in 1940. This is a shakier basis for birthright citizenship than the majority’s. It’s a lot easier to pass a new law than to amend the Constitution.
The majority’s decision is a relief because this Supreme Court is not always willing to apply the law equally to Mr. Trump. Yes, it rightly rejected his tariffs as a usurpation of Congress’s authority to tax. But the court’s six Republican-appointed justices have been inappropriately deferential in a string of other cases.
They have allowed his administration to discriminate on the basis of race when making immigration stops. They have allowed him to shut down federal programs that Congress approved. They have effectively endorsed his campaign of extreme partisan gerrymandering. This week, they gave him new power to fire the heads of regulatory agencies for any reason. They set up many of the excesses of his second term in a 2024 decision that gave presidents sweeping immunity from crimes that they might commit while in office. The birthright citizenship ruling is a reminder of what a principled, Constitution-bound court should look like.
There is still one way Mr. Trump may win from having pushed this case. He has succeeded in politicizing birthright citizenship, which was once a matter of bipartisan consensus among elected officials and legal scholars. Now, some Republican-aligned law professors see the case as the start of a longer campaign to repeal it.
These academics have strung together cherry-picked evidence from the historical record, including statements made by a few members of Congress in 1866 suggesting that the 14th Amendment was not intended to do what it says — confer birthright citizenship broadly. This effort includes bizarre interpretations of the Constitution. D. John Sauer, the Trump administration’s solicitor general, claimed that the phrase “subject to the jurisdiction thereof” referred only to people with “allegiance” to no country other than the United States.
The argument is weak, as anybody who reads the 14th Amendment can quickly grasp. Even some of the law professors making it once accepted birthright citizenship. One of them, Randy Barnett, has explained that they hope to shift the consensus on birthright citizenship much as they previously did on the extent to which the Second Amendment guarantees people’s right to own and carry guns. That’s an example of turning bad history into law.
We regret that the three dissenting justices picked up the thin thread of revisionist scholarship. The dissents argue that citizenship turns on an allegiance to the country that is created only if a child’s parents have “domicile,” meaning a permanent home, in the United States. “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,” wrote Justice Alito.
Chief Justice Roberts detailed how little support there is for the dissent’s theory in the historical record. There are many difficult questions in constitutional law. Birthright citizenship is not one of them. Conservatives often say that they are faithful, above all else, to the text of the Constitution. In this case, the Constitution is clear. People born in this country and subject to its laws are citizens.
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