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    IMMIGRATION                                                               JULY 24, 2026    |  The Indian Eye 36

                   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
                                                                                              States has consistently treated
                                                                                                                         Ark as either wrongly decided or
                                                                      porary status, including H-1B
               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
                                                                      Parents would have been
                                                                                              an error; it would reorder the
                                                                                                                         Clause, and that the executive or-
                                                                      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
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