The Supreme Court’s opinion in the birthright citizenship case, Trump v. Barbara, was decided by an unsettlingly close vote, but the actual decision of the Court was clear. The court majority delivered a stinging rebuke to the administration’s argument.
Six weeks later, Trump is running a version of his favorite play: take a loss and call it a win. On August 6, he issued two executive orders on birthright citizenship, and his contention is that neither one conflicts with the Barbara ruling. “There’s absolutely nothing in here that runs afoul of any of the Supreme Court’s opinions on the subject,” staff secretary Will Scharf said as the president put pen to paper. (Scharf’s know-nothing description takes on new significance with this morning’s announcement that he shortly will replace David Warrington as White House Counsel.)
It’s a fever dream. The chief order directly conflicts with Barbara, and it is destined to fail the first time the administration tries to use it. The second is subtler, and its fate will depend on how it’s administered.
Start with the delirium that drives Trump’s policy proposals. Trump’s obsession with the issue led him to attend (and then boorishly leave in the middle) the oral argument in Barbara. For years he has described birth tourism as a practice “where hundreds of thousands of people from all over the planet squat in hotels for their last few weeks of pregnancy to illegitimately and illegally obtain U.S. citizenship for the child.”
The Supreme Court at oral argument had asked the Solicitor General how many people are affected. The government’s chief advocate before the High Court couldn’t supply a number. At the signing of the orders, Trump simply snarled the figure into being: asked how many people actually benefit, when his own Solicitor General couldn’t give the Court a number, Trump answered, “hundreds of thousands, OK? Hundreds of thousands.”
The actual number of births to tourists, per a Penn State study, is under 0.3 percent of all U.S. births.
Trump’s new orders arrived with a constitutional theory. Per legal eminence Stephen Miller (errr maybe not: he doesn’t have a law degree), “As the president mentioned, the Fourteenth Amendment was passed exclusively in the aftermath of the Civil War, so to ensure that the children of slaves would be citizens,” Miller said. “It had no other meaning and purpose outside of that.” Trump repeated those terms: “This was for the babies of slaves.”
This is an astonishingly brazen argument, since the Supreme Court precisely, emphatically rejected it in the Barbara case. In fact, Justice Clarence Thomas, joined by Justice Neil Gorsuch, made the basic argument in dissent. Thomas wrote that the Citizenship Clause merely “constitutionalized the Civil Rights Act’s citizenship provision,” that its “main object” was to settle “the citizenship of freed [slaves],” and that “subject to the jurisdiction thereof” means complete or primary allegiance—allegiance owed solely to the United States—which in his view excludes the children of temporary visitors.
Miller and Trump are channeling Thomas’s dissenting argument as authority, six weeks after the Court rejected it decisively. (I laid out why Thomas’s reasoning was bankrupt in an earlier piece; the short version is that he asked what the drafters intended rather than the meaning of the provision they wrote.)
It’s stunning that the Trump administration would claim with a straight face that nothing in these orders “runs afoul of any of the Supreme Court’s opinions.”
What the Court actually held is close to the opposite view. Writing for the majority, Chief Justice Roberts explained that “subject to the jurisdiction thereof” means what it sounds like: you are subject to the laws of the United States. You can be taxed. You can be jailed. The phrase, Roberts wrote, refers to “the power of the United States to govern those within its territory” —and that power reaches everyone standing on American soil. A child born here and bound by our laws is a citizen at birth, period, full stop.
The exceptions are vanishingly narrow, and they prove the rule. The classic one is the child of a foreign diplomat. Why? Because a diplomat, by a legal fiction of extraterritoriality, is treated as if she never left home soil. She can rip up a parking ticket in front of the officer who wrote it, and there is nothing he can do, because she is not subject to his jurisdiction. That is what the exception is about: actual immunity from our laws, not disfavor.
Now hold the first executive order against that rule. The order decrees that a child born here is not a citizen if either parent falls into one of several new categories: an “alien enemy,” defined to sweep in members of foreign terrorist organizations; a foreign government employee; or someone who entered, or hired a surrogate who entered, in a “commercial transaction” to obtain citizenship for the child.
Ask of each the only question Barbara makes relevant. Is an accused terrorist subject to the laws of the United States? Of course they are—we arrest them, we try them, we can put them away for the rest of their life. Is a foreign national who came here to give birth subject to our laws? Obviously—they can be taxed, sued, deported, prosecuted for fraud, and given a speeding ticket. None of these people carries a diplomat’s immunity. Every one of them is fully within the jurisdiction of the United States, which is precisely why every one of their children born here is a citizen, full stop.
The order is silly and benighted, and it is going to crash and burn the first time the administration tries to enforce it against a real child from one of the new categories.
The second order, “Ending Birth Tourism,” is less clear-cut. It hands the president’s authority over who enters the country to the Secretaries of State and Homeland Security and tells them, in their discretion, to deny visas and turn away people who mean to come here to give birth.
In general, Trump stands on firmer ground here. That’s because the president has broad power over the border, and a regulation already lets a consular officer deny a visa to someone whose purpose is birth tourism. To that extent, the order adds almost nothing to the law, which is why even a Homeland Security official conceded it “simply restates existing law.”
But the order does convey broad discretion to the Cabinet Secretaries of State and DHS—to deny a visa, to revoke one and bar the holder for life, to move against anyone they decide is “facilitating” birth tourism—and they have all been hand-picked to serve Trump’s caprices, even over the Constitution. So the question becomes whether Trump’s loyal servants use their discretion to unmake the citizenship of a child already born here, to the delight of the big boss. At that point, it would run into the same constitutional brick wall as the first order.
We are left with two visions of the country.
In Donald Trump’s crabbed and fearful vision, hundreds of thousands of “birth tourists” huddle near the border, planning to filch something that was never theirs; and a president can strip them and their children of citizenship by decree.
In the vision of the 14th Amendment, as the Supreme Court has made clear, the citizenship clause lays down a promise, and it is one that has reverberated around the world: if you are born here and subject to our laws, you are a citizen and entitled to full participation in our society.
Go ahead, Trump: sign away.
The children born here today and tomorrow are citizens: his fever dream cannot touch them, and the Constitution’s promise outlasts him.
Harry Litman is a former United States Attorney and the executive producer and host of the Talking Feds podcast. He has taught law at UCLA, Berkeley, and Georgetown and served as a deputy assistant attorney general in the Clinton Administration. Please consider subscribing to Talking Feds on Substack.
Reprinted with permission from Talking Feds.
