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The US Supreme Court on Tuesday issued a long-awaited decision upholding a lower court ruling against Donald Trump’s executive order limiting birthright citizenship.
The executive order, which is not retroactive, would strip citizenship from those whose parents are in the U.S. without permission or whose presence is legal but temporary, such as those with a work or student visa.
The 6-3 decision in Trump v. Barbara marked the second time this year that the court has invalidated a major Trump initiative, following its February decision to strike down his sweeping global tariffs. Although Justice Brett Kavanaugh sided with the majority, he emphasized that Congress could pass legislation creating exceptions to birthright citizenship.
The 14th Amendment, passed in the 19th century and supported by subsequent legislation, essentially guaranteed citizenship to infants born in the United States, with only narrow exceptions such as the children of foreign diplomats or enemy occupying forces.
The petitioners said the Supreme Court had already settled the issue in the 1898 case United States v. Wong Kim Ark, which held that citizenship granted under the 14th Amendment extended to the children of foreign nationals.
“It is not surprising that over the past 128 years we have repeatedly understood Wong Kim Ark’s rule to guarantee citizenship to all children born in the United States and under his authority. Today, we see no reason to depart from that view,” wrote Chief Justice John Roberts, who authored the opinion.
Critics of the order argued that in the future it could potentially affect an average of a quarter of a million children born in the United States each year. In one of several so-called “friend of the court” reports, a group of municipal and county officials argued that Trump’s order would create “stateless children” subject to stigma and discrimination, whose access to basic services and health care would be jeopardized.
Trump attended the US government’s oral arguments in court on April 1, the first time a president has ever done so.
“A Radically Revisionist View”
The legal challenge to Trump’s directive included a class-action lawsuit filed in New Hampshire by parents and children whose citizenship was jeopardized by the order.
The provision in question—the “citizenship clause” of the 14th Amendment—states: “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 in which they reside.”
The administration has said the phrase “subject to its jurisdiction” means that being born in the U.S. is not enough to qualify for citizenship.
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Roberts said there was a “lack of evidence” to support the Trump administration’s “extremely revisionist view.”
During the debate, U.S. Attorney General D. John Sauer, representing the administration, said the promise of citizenship to virtually any child born on U.S. soil had spawned what he called a sprawling “birth tourism” industry.
Sauer said that “countless thousands of foreigners from potentially hostile countries have flocked to give birth in the United States in recent decades” to ensure citizenship for their children. Asked to explain how serious the problem had become, Sauer first cited media reports and admitted that “nobody knows for sure.”
The Center for Immigration Studies, which advocates limiting immigration, and the nonpartisan Migration Policy Institute have estimated that number could be between 20,000 and 25,000 births a year, or about two to three percent of all U.S. births.
While many countries, including Britain and Australia, do not guarantee citizenship by birth, the pressure from the Trump administration comes as it cracks down on legal immigration and rejects almost all asylum claims except for white applicants from South Africa, a country in which blacks are overrepresented below the poverty line after decades of racial segregation.
The administration has also pursued an expansive deportation campaign than previous Democratic and Republican administrations, and the Supreme Court last year made it easier for the government to send deportees to countries other than their origin in an unsigned ruling.
The Census Bureau reported that U.S. population growth last year was at one of its lowest levels in recent memory outside the early stages of the COVID-19 pandemic, thanks in large part to a historic decline in net international migration.
Read the Supreme Court’s decision on birthright citizenship: