President Donald Trump suffered a defeat Tuesday when a 6-3 majority of the Supreme Court held that his executive order denying birthright citizenship to the children of illegal immigrants and certain temporary visa holders was contrary to federal law. A smaller 5-4 majority held that it was inconsistent with the 14th Amendment as well.
As stinging as this defeat may feel for many conservatives, the outcome should be taken as a reason to refocus efforts on enforcing the law and passing new laws to tighten America’s borders, deport illegal immigrants, and let fewer temporary migrants into the country.
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Whatever one may think about the policy outcomes of birthright citizenship, as Chief Justice John Roberts details in his majority opinion, the legal case for it is strong. Roberts traces the history of birthright citizenship from English common law to the colonies, through the Constitution, and up to its rejection by the Supreme Court in Dred Scott v. Sandford.
The Reconstruction-era Congress explicitly sought to reject Dred Scott, first by passing the Civil Rights Act of 1866 and then by passing the 14th Amendment the same year. The author of the Civil Rights Act, Roberts notes, “enthusiastically agreed with the bill’s critics that it would make citizens of ‘the children of Chinese and Gypsies born in this country.’” The 14th Amendment took what the Civil Rights Act had put into federal law and placed it beyond the reach of ordinary politics. As Roberts writes, “What the Civil Rights Act began, the Fourteenth Amendment would finish,” putting the “great question of citizenship beyond the legislative power” once and for all.
There was then a movement, Roberts acknowledges, to reinterpret the 14th Amendment near the end of the 19th century. Some legal scholars tried to shift the focus of the Citizenship Clause to the status of the parents, not the child. But this line of thinking was rejected by the Supreme Court in United States v. Wong Kim Ark in 1898.
In Wong Kim Ark, the court held that the child of immigrant parents, still subject to the emperor of China and living temporarily in the United States, was entitled to birthright citizenship. “What the Court held in Wong Kim Ark was simple: the Citizenship Clause incorporated the common law and granted citizenship to nearly all children born in the United States,” Roberts recounts.
Stepping away from Roberts’s decision, it should be noted what did not happen after immigration restrictionists lost the Wong Kim Ark case. They did not call for the nullification of the court’s decision by the president, nor did they cry that the country was inevitably lost to waves of foreigners.
Instead, they went to work through Congress, passing a succession of restrictionist immigration laws that did more to reduce immigration than any reinterpretation of the Citizenship Clause could have. Congress passed the Immigration Act of 1917, the Emergency Quota Act of 1921, which established the first broad national origin caps, and the Immigration Act of 1924, which made those restrictions more severe and durable.
In 1900, two years after Wong Kim Ark, the foreign-born population of the United States was almost 14%. By 1960, it had fallen to 5%. Over the intervening 60 years, birthright citizenship for the children of legal and illegal immigrants was the law of the land. Yet the foreign-born population fell, the United States won two world wars, and the country became the most prosperous nation on the planet.
The trend reversed after Congress passed the Immigration and Nationality Act of 1965, replacing the restrictive national-origins quota system with one that prioritized family reunification. The foreign-born population began rising again, and eventually topped 15% under President Joe Biden, who admitted wave upon wave of illegal immigrants.
However legitimate it is to question the wisdom of citizenship, it is not to blame for the nation’s rising foreign population. The Immigration and Nationality Act of 1965 is the culprit, along with Democratic and Republican presidents who failed to secure the border as successfully as Trump has.
Instead of spinning their wheels trying to repeal the Citizenship Clause, conservatives should focus on making border security as permanent as possible, deporting as many of Biden’s illegal immigrants as possible, and ending temporary work programs that allow migrants to enter legally and obtain citizenship for their children. If the Citizenship Clause will not be amended to exclude the children of temporary workers, temporary workers should be excluded from entering the country in the first place.
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Modern birth tourism did not exist in 1866 when the 14th Amendment was written. At the time, it took 80 days to sail from China to California. Now the same trip takes 12 hours by plane. Does that technological change alter the policy calculus behind birthright citizenship? Yes. But it is not the Supreme Court’s job to rewrite the Constitution to fit the modern world.
The lesson of Wong Kim Ark is not surrender — it is realism. Birthright citizenship may be beyond ordinary legislation, but immigration levels are not. Congress and the president have ample power to secure the border, deport illegal immigrants, and restrict the temporary visa programs that are undermining citizenship itself.
