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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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