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WHAT’S NEXT AFTER SUPREME COURT NIXES TRUMP’S BIRTHRIGHT CITIZENSHIP ELIMINATION ATTEMPT

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In a major defeat for President Donald Trump and Deputy Chief of Staff for Policy and Homeland Security Advisor Stephen Miller, the Supreme Court voted 6-3 to reaffirm more than 100 years of legal precedent and national tradition that babies born on American soil are automatically American citizens.

The 6-3 decision is a blow to Trump, who had lobbied the court to uphold his Day 1 order and attended oral arguments in the case, becoming the first sitting president to do so.

Chief Justice John Roberts wrote: “Citizenship, then and now, was the right to have rights — to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to every free-born person in this land. We keep that promise today.”

Justices Clarence Thomas, Neil Gorsuch and Samuel Alito dissented from the decision. Thomas and Gorsuch wrote that neither the Constitution nor federal law “guaranteed citizenship to persons who were not domiciled in the United States.”

Clarence Thomas has now become the most predictable Justice on the Supreme Court.

Thomas argued that domicile, or the place of legal permanent home, of a child’s parents is the appropriate indicator of a child’s citizenship, given the nation’s history and tradition.

Trump had argued that children born to unlawful immigrants and temporary visitors, like tourists and foreign students, do not qualify for citizenship under terms of the 14th Amendment, which was enacted after the Civil War to address the status of former slaves and their descendants.

Immigrant advocates and civil liberties groups challenging the policy change warned that it would harm hundreds of thousands of children born every year to non-citizen parents and create a bureaucratic nightmare for older Americans, who would no longer be able to prove citizenship simply with a birth certificate.

“The court’s decision reaffirms a fundamental American promise — if you are born here, you are a citizen. A president cannot change the Constitution by executive fiat,” said ACLU legal director Cecilia Wang, who argued the case before the court. “Our brave clients and our legal team stand with millions of people around our country who spoke up for one of our most cherished rights. The Constitution’s guarantee of birthright citizenship stands strong.”

An estimated 255,000 children born every year to non-citizen parents would have lost legal status under the order, according to the Migration Policy Institute. Some may have faced difficulty establishing citizenship in any country, effectively being born as “stateless.”

Trump and some Republicans are now suggesting they may try to get around the court ruling by getting Congress to pass a law or even try for a constitutional amendment.

A constitutional amendment attempt is likely to fail. It would require two-thirds approval in both the House and Senate followed by ratification from three-fourths of the states–38 states. Given U.S. political divisions, that’s an super high hurdler and there’s little evidence that such a coalition exists.

The congressional route also faces major obstacles.

Congress can indeed pass immigration laws but it can’t simply override the Constitution with an ordinary law. Since today’s Supreme Court ruling reaffirmed that the Citizenship Clause of the Fourteenth Amendment protects birthright citizenship, any law contradicting that interpretation would almost certainly face immediate constitutional challenges.

On the political front:

  • Trump will use the decision to energize their immigration-focused base, stressing that the Court is preventing reforms they believe are crucial.
  • Democrats will paint the ruling as a defense of the Constitution and the rule of law, emphasizing that a conservative-majority Supreme Court–including Chief Justice Roberts and Justice Barrett–joined the majority.
  • Independent voters are harder to predict. Immigration remains a potent issue, but polls over the past several years have generally shown that changing birthright citizenship itself has not enjoyed majority support, even among voters who favor tougher immigration enforcement.

    So where are we now?

    Republicans are promising to keep fighting, whether through Congress or even a constitutional amendment. But that’s easier to promise than to accomplish. Amending the constitution is one of the toughest acts in American government, and passing an ordinary law that contradicts the Supreme Court’s reading of the Fourteenth Amendment would almost certainly send Congress right back into court.

    The political battle will continue. The legal one, at least for now, appears largely settled.


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