Page 40 - The Indian EYE 071026
P. 40
The Indian Eye
IMMIGRATION 40
JULY 10, 2026
Trump v. Barbara: How the Supreme Court
Dodged a Bullet on Birthright Citizenship
BY CYRUS D. MEHTA AND Amendment and with 8 U.S.C. § anxiety about unauthorized immi- Immigration Services days after Justice Kavanaugh’s con-
KAITLYN BOX 1401(a), which together embody gration or “birth tourism.” the child’s birth, and innocent er- currence, while more cautious in
the longstanding rule that almost “Citizenship, then and now,” rors or delays could lead to their its constitutional analysis, helped
he Supreme Court’s deci- all persons born on U.S. soil, re- Roberts states, “was the right to infants being treated as out of sta- solidify the result. He expressed
sion in Trump v. Barbara gardless of their parents’ immigra- have rights—to freely partici- tus and removable. some sympathy for the view that
Tdid far more than invalidate tion status, are citizens at birth. pate in our political community. Beyond these immediate Congress might, in theory, have
an overreaching executive order The majority, in an opinion The Framers of the Fourteenth disruptions, the order threatened authority to define by statute cer-
– it prevented a wholesale desta- by Chief Justice Roberts, reject- Amendment extended that prom- to draw U.S. citizen parents into tain narrow categories of noncit-
bilization of American citizenship ed the government’s theory and ise to ‘every free-born person in the same web of suspicion. Once izens born here, but concluded
that could have echoed backward reaffirmed the rule announced this land.’ We keep that promise citizenship no longer flows auto- that the existing statute, 8 U.S.C. §
through generations. By a narrow in Wong Kim Ark at the end of today.” matically from birth on U.S. soil, 1401(a), plainly grants citizenship
but decisive majority, the Court re- the nineteenth century. The Citi- At oral argument, Justice vital records offices, hospitals, at birth to almost all persons born
jected President Trump’s attempt zenship Clause, the Court said, is Amy Coney Barrett had highlight- and federal agencies could start to in the United States. Whatever
to narrow birthright citizenship, “declaratory” of the common-law ed how “messy” and unworkable demand proof that a child meets Congress’s latent power might be,
reaffirmed the core holding of principle of jus soli: if you are born a parent-focused test would be. whatever conditions the executive the President lacks any authority
United States v. Wong Kim Ark, in the United States and are sub- If citizenship turned on paren- or Congress has grafted onto the to override this statutory com-
and drew clear lines that future ject to its laws, you are a citizen at tal domicile, lawful presence, or Constitution. Parents might have mand by executive order. Kavana-
administrations will find difficult birth, with only narrow, historical- subjective intent to remain, the been asked to demonstrate not ugh’s opinion stressed separation
to cross. ly recognized exceptions such as government would be forced into only their own citizenship or law- of powers: even if one accepts a
Trump’s executive order tried the children of foreign diplomats, endless, intrusive factual inquiries. ful status, but also that they were more limited view of the Citizen-
to rewrite the Fourteenth Amend- enemy occupiers, and, historical- Foundlings—abandoned infants domiciled in the United States and ship Clause, it is for Congress,
ment’s Citizenship Clause by nar- ly, members of Native American whose parents are unknown— intended to remain here at the not the president acting alone, to
rowing the meaning of “subject tribes before Congress extended would languish in legal limbo if cit- time of birth. A U.S. citizen who make changes of this magnitude.
to the jurisdiction thereof.” Un- citizenship by statute. The major- izenship depended on the status of had long resided abroad and re- That concurrence, grounded in
der the executive order, a person ity emphasized that neither the parents who cannot be identified. turned home to give birth and be- statutory interpretation and insti-
born in the United States would word “legal” nor “permanent” nor Even where parents are known, fore resuming life overseas, could tutional humility, provided an ad-
not be a citizen at birth if, at the any reference to parental status the government would have to re- have found her child’s citizenship ditional barrier against presiden-
time of birth, both of the child’s appears in the Citizenship Clause, construct, years later, their precise questioned on the ground that tial attempts to unsettle citizenship
parents were either undocument- and it declined to read them in. legal status and even their state of she lacked the necessary “ties” at by decree.
ed, or held only a nonimmigrant The Court rejected the idea that mind at the time of birth. Justice the crucial moment. What is now In contrast, the dissents
status (for example, F-1, H-1B, the meaning of “subject to the ju- Barrett’s hypotheticals, such as a simple administrative act—re- sketched the alternate future the
etc.). This clashed directly with the risdiction” could be transformed that of a U.S. citizen living abroad cording the birth of an American country narrowly avoided. In the
text and history of the Fourteenth in response to modern political who returns briefly to the United child—could easily have become principal dissent, Justices Thom-
States to give birth and then an adversarial process. as and Gorsuch adopted a nar-
leaves again, underscored The most dangerous implica- row reading of the Fourteenth
the absurdity of tying a new- tions, however, laid in the poten- Amendment’s Citizenship Clause
born’s citizenship to parental tial retroactive use of a narrowed and would have upheld Trump’s
“intent to stay.” The majority constitutional rule. During oral executive order. They argued
opinion took those concerns argument, Justice Sotomayor re- that “subject to the jurisdiction
seriously, noting that a con- called the historical episode in thereof” does not simply mean
stitutional rule that invites which Native Americans, who had being subject to U.S. laws in the
such guesswork is not a rule previously been treated as citizens ordinary sense, but requires a full-
at all, but an invitation to ar- in some contexts, were denied that er, genuine allegiance and a law-
bitrary decision-making. status and even stripped of it based ful, consensual relationship with
Had the executive order on shifting interpretations of the United States. In their view,
been upheld, the immedi- law and policy. If the Court were the Framers of the Fourteenth
ate consequences for future to declare that the Fourteenth Amendment did not intend to
children would have been Amendment never guaranteed confer automatic citizenship on
profound. Children born in citizenship at birth to those whose the U.S.-born children of parents
the United States to undocu- parents were unlawfully present or who had no legal right to remain
mented parents would no lon- only temporarily in the country, in the country or who were pres-
ger have citizenship at birth. that logic would not be confined to ent only fleetingly and condition-
Depending on the nationality future births. It would invite litiga- ally. The dissenters relied heavily
laws of their parents’ home tion and executive action to revisit on historical sources and Recon-
countries, some might qualify and undo the citizenship of people struction-era debates to claim that
for citizenship elsewhere, but now living as American citizens. the Clause was aimed at freeing
others would not, rendering The majority addressed this formerly enslaved people and se-
them effectively stateless. concern obliquely by emphasiz- curing their status, not at constitu-
The order would also ing continuity and reliance. It cit- tionalizing a broad jus soli rule for
have swept in children born ed over 150 years of practice and all comers, regardless of parental
m of to parents in lawful but tem- precedent in which the United status. They treated Wong Kim
porary status, including H-1B
States has consistently treated
Ark as either wrongly decided or
CYRUS D. MEHTA & PARTNERS PLLC professionals, H-4 depen- birth on U.S. soil, with very limited at least tightly limited to its facts:
dents, students, exchange vis- exceptions, as sufficient for citizen- a child born in the United States
itors, and tourists. Newborns, ship. By framing Wong Kim Ark to parents who were long-term, le-
however, are not “admitted” as both historically grounded and gally resident subjects of a foreign
at a port of entry and are not repeatedly reaffirmed, the Court sovereign. From that perspective,
assigned a nonimmigrant signaled that citizenship acquired the dissenters maintained that the
status at birth. It is far from under that understanding is not a Trump administration’s interpre-
clear what lawful status such mere policy choice but a constitu- tation was a permissible, even nec-
children could hold, if any, tional baseline. To overturn that essary, restoration of the original
from the moment of birth. baseline would not simply correct understanding of the Citizenship
an error; it would reorder the
Clause, and that the executive or-
Parents would have been
thrust into a frantic race to political community in ways the der did not contradict the Consti-
2 6th Floor file complex applications Fourteenth Amendment was ad- tution but implemented it.
with U.S. Citizenship and opted to prevent. Justice Alito wrote separately
www.TheIndianEYE.com
