The Supreme Court’s decision striking down President Donald Trump’s executive order on birthright citizenship is a vital victory for the children and communities that would have been hurt. But let’s be clear: While Trump v. Barbara was a weighty case, it shouldn’t have been a hard one. And the decision does not make the court some guardian of multiracial democracy. This court has been taking a sledgehammer to it throughout this term.
In Barbara, the court faced this choice: Rewrite the Constitution, revive one of its most embarrassing precedents, overturn 130 years of its own decisions, disown the collective understandings of generations of presidents and federal lawmakers and endorse an overhaul of citizenship that would endanger hundreds of thousands of children. Or just follow the law.
Ultimately, the court chose to follow the law.
While Trump v. Barbara was a weighty case, it shouldn’t have been a hard one.
Chief Justice John Roberts’ opinion for the majority affirmed that the Fourteenth Amendment guarantees citizenship to all children born on American soil. This invalidated an executive order Trump issued the first day of his second term claiming to deny citizenship to babies born in the United States to noncitizen parents.
The flaws of that order were immediately obvious.
For one thing, Trump’s order was inhumane. It would have relegated hundreds of thousands of children to a new subclass without legal rights and protections and put them in danger of deportation. These children and their parents would have suffered greatly. American communities would have, too.
The order violated the Fourteenth Amendment’s plain language: “[A]ll 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.” The import of those words has been clear for 150 years: If you’re born here, you’re one of us.
The Supreme Court reinforced that understanding when it ruled in the 1898 case Wong Kim Ark that children of noncitizens born on U.S. soil got citizenship under the Fourteenth Amendment. Congress after Congress followed this rule. President after president did, too.
The order also contradicted the spirit of our Constitution. Trump effectively tried to return the country to the rule of Dred Scott. That infamous 1857 case stated that Black people could not be citizens because America was a white nation. It rested on the same logic as Trump’s order: that politicians get to choose who the people are and can extend or withdraw citizenship as they please. And it blessed a status quo that looks awfully similar to the one the Trump administration has tried to put in place: one in which noncitizens faced terror, violence and the risk of displacement, with little protection in the courts.
The Fourteenth Amendment was designed to wipe away Dred Scott and all it stood for. By guaranteeing birthright citizenship in the Constitution, the Fourteenth Amendment ensured that no judge or politician — even a president — could decide who is a citizen and who isn’t.
The majority opinion issued Tuesday traced birthright citizenship’s deep history, foreswore Dred Scott, affirmed Wong Kim Ark and closed on a soaring note, extolling the importance of birthright citizenship as a fundamental right and a “promise to every free-born person in this land.”
Thomas Wolf is director of democracy initiatives at the Brennan Center.
Samuel Breidbart is counsel in the Brennan Center’s Democracy Program.
