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    The Indian Eye
                                            IMMIGRATION                                                                                     41
                                                                                                                         JULY 10, 2026

            to stress practical and policy concerns, though   “these questions may not be properly before   prevailed,  the  multigenerational  implica-  to use executive power to narrow that guar-
            he agreed with the core constitutional reason-  us. But their answers are undeniably import-  tions would have been staggering. If X, born   antee and to reopen settled questions about
            ing of Thomas and Gorsuch. He accepted the   ant to a Nation committed to a view of citi-  in the United States decades ago to parents   who is American. It also restores a clear line
            premise that “subject to the jurisdiction” in-  zenship open to all children born here to par-  now  classified  as  outside  the  Fourteenth   between the political branches: whatever de-
            corporates a concept of allegiance and lawful,   ents who can call this country their home.”  Amendment’s protection, was never a citi-  bates may arise in Congress about the outer
            non-transient presence. He argued that, in a   Layered over these doctrinal disagree-  zen at birth, then X could not have lawfully   edges of citizenship, the President cannot, by
            modern context of large-scale unauthorized   ments was a deeper dispute about the nature   passed citizenship to Y. If Y is not a citizen,   unilateral order, rewrite the constitutional
            migration and what he termed “birth tour-  of citizenship itself. The majority and con-  Y cannot transmit citizenship to Z. Family   and statutory rules that have defined the na-
            ism,” it is reasonable to interpret the Clause   currences  treated  citizenship  as  a  founda-  trees that stretch back for generations in the   tional community for more than a century.
            so that birthright citizenship does not extend   tional status that must be stable, knowable,   United States would be legally reimagined   Trump and many of his supporters en-
            to  the  children  of  those who  deliberately   and insulated from day-to-day politics. They   as never having produced a single American   vision mass deportations as a way to reshape
            evade the immigration laws or enter solely to   viewed the Citizenship Clause as a hard-won   citizen. Many who championed the execu-  the country’s demographic and political fu-
            secure citizenship for a child. Alito’s dissent   guarantee,  adopted  in  direct  response  to   tive order in the name of restricting immi-  ture. What Trump v. Barbara underscores is
            emphasized  that  the  Constitution  should   Dred Scott and the exclusion of Black Amer-  gration might have awoken to find that their   the peril in trying to achieve that goal by tam-
            not be read to “lock in” what he viewed as   icans from the political community, meant to   own  citizenship,  and  that  of  their  children   pering  with  the  foundations  of  citizenship
            unintended consequences of a broad jus soli   fix in the Constitution a clear, objective rule   and  grandchildren,  rested  on  the  very  un-  itself. Had the Court blessed the executive
            rule. He suggested that the political branches   for who belongs. The dissents, by contrast,   derstanding of the Fourteenth Amendment   order, it would have created the legal and
            must retain flexibility to respond to contem-  cast citizenship as more contingent and mal-  they sought to undo.  conceptual space to question the citizenship
            porary problems, and saw Trump’s order as a   leable,  something  that  can  be  recalibrated   By  rejecting  that  path,  the  Court  has   of millions, including many who never imag-
            permissible exercise of that flexibility. While   to reflect current policy concerns about mi-  allowed the United States to dodge a con-  ined their status could be in doubt. By instead
            he disclaimed any desire to strip citizenship   gration and enforcement. Under that vision,   stitutional bullet. Trump v. Barbara confirms   reaffirming  the  Fourteenth  Amendment’s
            from  those  long  recognized  as  Americans,   the meaning of “subject to the jurisdiction”   that  citizenship  acquired  by  birth  on  U.S.   broad and inclusive promise, the Court has
            his framework did not supply a clear con-  becomes a tool for shaping the membership   soil, subject to U.S. law, is not a revocable   preserved not only the rights of today’s new-
            stitutional  barrier  against  future  retroactive   of the polity rather than a safeguard against   privilege  but  a  constitutional  guarantee.  It   borns, but also the stability and integrity of
            efforts; instead, he gestured to reliance inter-  its manipulation. Had the dissenters’ view   closes the door, at least for now, on efforts   American  citizenship  across  generations.
            ests and administrative practicality as reasons   ________________________________________________________________________________________________________________________________________________________________________________________________
            to proceed cautiously
                Gorsuch also wrote a separate brief   Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
            dissent, in which he suggested that Trump’s   & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
            executive order might violate the Constitu-  mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
            tion as it applies to the children of undocu-  Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
            mented immigrants who intend to live in the   of Volunteers for Legal Services and board member of New York Immigration Coalition.  Mr. Mehta is the former chair of the
            United States permanently. “If those parents   Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
            are not domiciled here,” Gorsuch queried,
            “then where are they domiciled? And if the   Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
            answer  is  nowhere,”  he  continued,  “how   on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
            can we reconcile that conclusion with this   Work.  Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
            Court’s longstanding recognition that every   and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
            person is domiciled somewhere?” Because   immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016.  Mr. Mehta is ranked among
            the challengers in this case have argued that   the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
            Trump’s order is invalid in all circumstances,
            rather than just some, Gorsuch explained,   in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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