The Supreme Court has been busy roiling the political waters. Thank God, literally, for Justices Thomas, Alito, and Gorsuch for their steady grip on the Constitution. But not even their gimlet-eyed focus on the Constitution will be sufficient to protect the strength and integrity of the United States now that Justices John Roberts and Amy Coney Barrett have joined Elena Kagan and the intellectual midgets Sonia Sotomayor and Ketanji Brown-Jackson in Trump v. Barbara to decimate the floodgates that restricted citizenship to the offspring of citizens or lawful permanent residents.
Unless Congress does their job of legislating, Chinese Communists can send over pregnant tourists and students to give birth to American citizens who will grow up in Communist China and be raised by parents whose allegiance will be to the Chinese Communist government. And foreigners of child-bearing age will be further incentivized to break our border laws in order to secure not only American taxpayer-funded goodies but also the blessings of American Citizenship.
Writing in First Things, Rachel Bovard, Conservative Partnership Institute’s Vice President for Programs, points to the serious national problems created by the “cheapening” of American Citizenship that this decision exacerbates:
[D]ecades … of allowing companies engaging in “maternity tourism” to cater to Chinese and Russian clients: all-inclusive deals including visas, luxury housing, medical care, and transportation to secure U.S. citizen children for future chain migration and benefits. That’s to say nothing of the third-world migrants who cross the border long enough to give birth at the most expensive hospital in the area, on the dime of the U.S. taxpayer, and then return home with a child possessing the privileges and immunities of U.S. citizenship. As the dissenters point out, the framers of the Citizenship Clause never intended it to apply in these cases.
Richard Epstein, New York University law professor, demonstrates in his amicus brief the ahistorical framing of the majority decision:
The phrase “subject to the jurisdiction thereof” excludes individuals subject to a foreign power, such as the children of illegal aliens. This follows from numerous sources, including the Fourteenth Amendment, which distinguishes people “subject to” sovereign jurisdiction from those merely “within” it. Additionally, the Fourteenth Amendment was widely understood as providing a firmer constitutional footing for the Civil Rights Act of 1866. And that law conferred citizenship on “all persons born in the United States and not subject to any foreign power …”
But perhaps the strongest evidence … comes from laws governing naturalization. … The naturalization acts, from the 1790s through the nineteenth century, bear two key attributes. First, any individual seeking to be naturalized had to take an oath renouncing all loyalties to any foreign sovereign. Second, these acts provided that, when individuals became naturalized citizens, their children would become citizens with them. Nothing in the many naturalization acts confers any earlier citizenship on children born in America to not-yet-naturalized aliens— this despite the fact that, beginning in 1790, these laws did confer birthright citizenship on children who were born abroad to American citizens.
All told, these important, widely discussed federal laws conferred citizenship on aliens and the children of aliens only if they or their parents formally renounced all other foreign allegiances.
It should be obvious that if the first clause, “All persons born or naturalized in the United States,” provided the sole requisite criterion for citizenship, the second clause would have been wholly unnecessary.
According to the 14th Amendment, the second clause constitutes an additional and equally necessary criterion for citizenship. It is this clause that has long been the subject of debate.
Bovard provides a succinct overview of the social and political problems created by Trump v. Barbara, including by eroding “the people’s agency” in shaping public policy:
On Tuesday, in a decision that will rank among the most consequential—and misguided—of the modern era, the Supreme Court entrenched an expansive vision of birthright citizenship in Trump v. Barbara, fundamentally reshaping the boundaries of the American political community.
In a 5–4 opinion by Chief Justice John Roberts, joined by Justice Amy Coney Barrett and the Court’s three liberals, the majority ruled that children born in the United States to parents unlawfully present or temporarily visiting are “subject to the jurisdiction” of the United States. In plain language: Any child born on American soil—to parents of any citizenship or legal status, here for any length of time—receives automatic citizenship, complete with constitutional protections, welfare eligibility, in-state tuition, and the right to run for president of the United States. …
By throwing wide the boundaries of political community to all comers and removing the people’s agency to assert for itself the shape of that polity, the Court has done far more than merely interpret the Fourteenth Amendment. Rather, the majority has constitutionalized a policy that incentivizes illegal entry, rewards birth tourism, and erodes the meaning of citizenship for generations to come—all while stripping from the people the right to meaningfully make changes, should the tradeoffs become too great. In a sense, it is another Roe v. Wade—freezing a foundational question of self-government into judicial amber, out of reach of the American people and their elected representatives.
As with Roe, by asserting that the Constitution itself requires babies born to illegals and tourists—a claim long and vigorously challenged—the Court presumed to rob Americans of the right to legislate the matter, a suggestion offered by Justice Kavanaugh in his concurrence. In so doing, the Court has opened the floodgates not only to gross citizenship abuse—including by America’s enemies—but also to perduring and fiery cultural division. This decision will fuel the anti-America, anti-sovereignty movement that animates young leftists.
Justice Kavanaugh, though voting with the majority to strike down Trump’s executive order, offered his own opinion in which he made clear he does not believe Trump’s executive order violates the 14th Amendment. Rather, he believes it violates a federal statute, and in his dissent, he too illuminates a path toward a solution:
Congress could—consistent with the Fourteenth Amendment—amend [this law] or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country.
Bovard also looks to Roe for direction in responding to this unfortunate decision. There is a path forward provided by years of pro-life activism:
Fortunately, the conservative legal movement is far better equipped today than the pro-life cause was in 1973. The model that dismantled Roe, which included decades of activism, thought leadership, strategic litigation, and judicial appointments, should now be aimed at Tuesday’s decision. Trump v. Barbara must act as a litmus test for every future conservative nominee: Only nominees prepared to reconsider expansive readings of the Citizenship Clause—and who understand that a nation is more than simply a collection of individuals in the same geographic location—deserve elevation. As evidenced by Tuesday’s ruling, whether or not a nominee believes in the project of nationhood has never been a threshold question for conservative nominees; it must be now.
Further, while conservatives must laser-focus on judicial nominees, Bovard argues for other equally important congressional tasks:
Moreover, while the Court has, for now, removed the ability of Congress to enforce the bounds of birthright citizenship, the elected branch can and must have an immediate response: mass interior enforcement and deportations, ironclad border security, curbs on chain migration and exploitable visa programs, a halt to H-1Bs, and stiff penalties for sanctuary jurisdictions that flout federal law and give welfare benefits to illegal aliens. Tuesday’s decision poured rocket fuel onto the incentives for illegal immigration and mass migration generally—the enforcement response must be swift, comprehensive, and unrelenting.
This decision is a tragic black mark on the Supreme Court majority during this week of celebrating the historic 250th anniversary of the founding of the greatest—most free, most prosperous, most generous—nation the world has ever seen. Conservatives better muster more passion in the midterms than leftists do if we hope to one day celebrate a 300th anniversary.