There is no question in US law that is clearly or more firmly settled than the question of whether people born in the United States are citizens of this country. The 14th Amendment states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
“All persons” means all persons. And, as the Supreme Court reaffirmed on Tuesday, the amendment’s limited exception for people not “subject to the jurisdiction” of the United States refers only to the small subset of people, like the children of ambassadors, who are not bound by US law at all.
And yet the decision upholding birthright citizenship, known as Trump v. Barbara, was only 5-4 — a shocking near-miss that leaves the door open to further challenges if future appointees pull the Supreme Court to the right.
It’s notable that a total of six justices did vote against President Donald Trump. While Justice Brett Kavanaugh made the extraordinary claim that the Constitution’s meaning has changed because “significant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868,” he ultimately concluded that a federal statute prevents Trump from canceling people’s citizenship.
Still, that’s four votes against reading the Constitution according to its unambiguous text. And it’s four votes for overruling a Supreme Court opinion that’s been on the books since the 19th century.
Barbara is the most alarming decision that the Court has handed down since it declared that Trump is allowed to commit crimes in 2024. And, if not for the Trump immunity decision, the dissenting justices’ opinions in Barbara would be the gravest judicial attack on the rule of law since the Court upheld Japanese internment in Korematsu v. United States (1944).
And that means that, if Donald Trump gets to replace just one member of the Barbara majority, the United States enters a very dark place.
Read Ian's full story here.
