The U.S. Supreme Court on Tuesday shut down President Trump’s attempt to reverse a 170-year-old constitutional right that gives American citizenship to babies born to undocumented immigrants.
In a 6-3 vote, the Supreme Court said that children born on American soil to undocumented parents are “‘subject to the jurisdiction’ of the United States and are citizens at birth under the Fourteenth Amendment’s citizenship clause.”
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Chief Justice John G. Roberts Jr., writing for the majority, said that Trump’s executive order seeking to end automatic citizenship for babies born to undocumented immigrants and immigrants on temporary visas violated the 14th Amendment of the Constitution.
“Citizenship, then and now, was the right to have rights — to freely participate in our political community,” Roberts wrote. “The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”
Justices Amy Coney Barrett and Brett Kavanaugh, both nominated to the bench by Trump, joined the court’s three liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — in the majority opinion.
Kavanaugh wrote a separate opinion that said Trump’s order violated federal law, but not the Constitution. He wrote that Congress has the power to create exceptions to birthright citizenship for “children born to foreign citizens unlawfully or temporarily in the country.”
Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.
In his opinion, Thomas said the 14th Amendment has been misinterpreted to include undocumented immigrants.
“The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens,” he added. “In doing so, the Court adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support.”
On his first day back in office, Trump signed an executive order denying automatic U.S. citizenship to babies unless one parent is either a U.S. citizen or a legal permanent resident — known as a green card holder — at the time of the baby’s birth. In addition to children of undocumented parents, the executive order applied to babies born to parents who are in the country temporarily, such as people in the country with a student, work or tourist visa.
In 1868, Congress passed, and voters ratified, the 14th Amendment, which begins: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The Amendment was a reaction to one of the Supreme Court’s most notorious decisions: The 1857 Dred Scott ruling that declared Black people of African descent were not U.S. citizens.
Three decades after the 14th Amendment passed, the court cemented it through its ruling in United States v. Wong Kim Ark, when the justices said a child born in the United States to Chinese immigrants was a U.S. citizen.
Trump has called the practice “stupid,” without explaining why. He has erroneously said the U.S. is the only country to provide birthright citizenship. Analysis by the Pew Research Center found 32 countries — many of them in the Western Hemisphere — have birthright citizenship laws similar to the 14th Amendment.
On Tuesday, Trump said the court upholding birthright citizenship “was too bad for our country” and called on Congress to pass legislation that would limit automatic citizenship.
“They will have my complete and total support,” he said on social media.
The Supreme Court’s ruling was celebrated by many, including civil rights and immigrant rights organizations.
“As we celebrate our nation’s 250th anniversary we are grateful the Supreme Court reaffirmed one of the most cherished constitutional rights. We are here. We belong. This is our country too,” said Vanessa Cárdenas, executive director of America’s Voice, a national immigrant rights organization.
Texas state Rep. Ramón Romero Jr., D-Fort Worth, the chair of the Mexican American Legislative Caucus, said the court “got this one right.
“For families across Texas and our nation, they can breathe a sigh of relief knowing the rights guaranteed by our Constitution remain. Those rights should have never been in question.”
But others who have opposed immigration criticized the ruling.
Gov. Greg Abbott said in a statement that the court missed an opportunity “to restore the original meaning of the 14th Amendment.” He said that giving automatic citizenship to undocumented immigrants or those on a temporary visa is “an absurdity.”
“Congress must clarify that American citizenship means something and does not extend automatically to children whose parents are in this country unlawfully or temporarily. The American people and the sovereignty of our nation deserve nothing less,” he said.
Dale L. Wilcox, executive director and general counsel of the Federation for American Immigration Reform, a national group that goes by FAIR and has advocated to end illegal immigration and limit legal immigration, said the court’s decision will to have negative consequences for the country.
He said this decision means there’s more urgency “to step up enforcement to the maximum possible extent and end illegal immigration. At FAIR, we will redouble our efforts to put an end to illegal migration, and thus cancel this and all its other negative consequences.”
U.S. Rep. Chip Roy, R-Austin, said that Congress needs to act to end automatic citizenship for babies born in the U.S. unless they have a parent who is a citizen.
“The Supreme Court, led by Chief Justice Roberts, failed the American people, the Constitution, and the rule of law today — not to mention the national security of the United States,” he said.
Others took a more extreme approach, saying Republican-led states should ignore the Supreme Court decision.
“It is time for red states to lead where the Supreme Court has failed. There are no federal birth certificates. Texas and other states must refuse to issue them to children born to non-citizens,” said Cary Cheshire, a longtime right-wing activist in Fort Worth who has lobbied state lawmakers to crack down on both legal and illegal immigration.
According to the Pew Research Center, about 250,000 babies were born to undocumented immigrants in the U.S., or 6% of the total births, in 2016, the latest year for which data is available.
Latinos and Asians make up the majority of undocumented immigrant families. Among Asians, parents lack legal status in 41 births per 1,000, while 17 of every 1,000 births among Latinos lack legal status, according to a recent study by two professors at Pennsylvania State University.
Only on rare occasions is a baby born in the U.S. not considered a citizen, such as a child born to foreign diplomats.