{"id":3087,"date":"2026-06-30T23:08:26","date_gmt":"2026-06-30T23:08:26","guid":{"rendered":"https:\/\/americanmovershub.com\/?p=3087"},"modified":"2026-06-30T23:08:26","modified_gmt":"2026-06-30T23:08:26","slug":"analysis-what-you-need-to-know-about-the-birthright-citizenship-decision","status":"publish","type":"post","link":"https:\/\/americanmovershub.com\/?p=3087","title":{"rendered":"Analysis: What you need to know about the birthright citizenship decision"},"content":{"rendered":"
\n

If your social media feed is anything like mine, it is full of politicos and influencers exuding certainty in the form of exultation or outrage over the Supreme Court\u2019s birthright citizenship decision. <\/p>\n

Read more Utah joins multistate settlement with egg producers over alleged price-fixing<\/a><\/p>\n

But trust me: This is more complicated than your social media echo chamber would have you believe. <\/p>\n

The central question in the case <\/h3>\n

At issue in the case is the validity of , issued by President Donald Trump on the day he took office at the beginning of his second term in January 2025. The order declares that children born to parents unlawfully or temporarily present in the United States are not entitled to birthright citizenship under the Constitution or applicable immigration laws. <\/p>\n

The Constitution confers birthright citizenship through the 14thAmendment Citizenship Clause, which emerged from a lengthy debate<\/u> in Congress following the Civil War: \u201cAll 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.\u201d <\/p>\n

Among other things, this provision established the state and national citizenship of Americans who had been born into slavery, overturning the infamous pronouncement of the Supreme Court in Dred Scott v. Sanford<\/u> that people of African descent could never be citizens of the United States. <\/p>\n

In 1952, Congress enacted the Immigration and Nationality Act, the first comprehensive law governing citizenship and immigration. The provision<\/u> at issue in Trump v. Barbara repeats the 14th Amendment\u2019s guarantee of citizenship to \u201cany person born in the United States and subject to the jurisdiction thereof,\u201d then extends citizenship to additional groups, such as children born abroad to U.S. citizen parents. <\/p>\n

The executive order contends that a person unlawfully or temporarily present in the United States is not \u201csubject to the jurisdiction thereof\u201d within the meaning of the 14th Amendment and subsequent law. Only children born to parents residing legally in the United States are fully subject to their jurisdiction. <\/p>\n

The Supreme Court rejected that argument.<\/p>\n

What does the Constitution have to do with it? <\/h3>\n

Chief Justice John Roberts\u2019 majority opinion, joined in full by four of his colleagues, argues that the executive order is not only unlawful, but also unconstitutional. The scope of birthright citizenship is fixed by the Constitution and encompasses nearly all persons born on American soil. <\/p>\n

Citing the 1898 decision of the court in United States v. Wong Kim Ark<\/u>, the majority opinion argues that the only exceptions to this default rule are those recognized by the law at the time the 14th Amendment was adopted. <\/p>\n

These exceptions included the children of foreign sovereigns or their representatives, those born on \u201cforeign public ships,\u201d and children born to members of a hostile army occupying the United States. The Wong Kim Ark decision also determined that \u201cchildren of members of the Indian tribes,\u201d as citizens of semi-sovereign nations, were not subject to the jurisdiction of the United States. <\/p>\n

The five justices joining the majority opinion hold that these exceptions are enshrined in the text of the Constitution and neither Congress nor the president may add to them. <\/p>\n

Is it 5-4 or 6-3? <\/h3>\n

Justice Brett Kavanaugh also understands Congress to have enacted the Wong Kim Arkinterpretation of the 14th Amendment into law in 1940 and 1952 \u2014 representing the sixth vote for the majority. <\/p>\n

Yet he believes that the 14th Amendment can be read to include other exceptions. \u201cCongress could \u2014 consistent with the Fourteenth Amendment \u2014 amend (the statute) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. But Congress has not yet done so.\u201d <\/p>\n

Therefore, there are six votes for the holding that the order is unlawful, but only five for the holding that it is unconstitutional. <\/p>\n

Why do the dissenters think the Supreme Court is wrong? <\/h3>\n

All three dissenters \u2014 joined by Kavanaugh \u2014 argue that \u201csubject to the jurisdiction thereof\u201d should be read to allow additional exceptions beyond those identified in Wong Kim Ark.<\/p>\n

Kavanaugh expresses reluctance even to address the constitutional issue, which he notes \u201cis not straightforward, much as we might want it to be.\u201d But having been induced to do so, he gives an account that would allow Congress to craft modest additional exceptions to those \u201csubject to the jurisdiction\u201d of the United States.<\/p>\n

Read more 2 statues of Catholic saints: Religious objects or public art?<\/a><\/p>\n

Kavanaugh argues that while the Constitution\u2019s text and core principles never change without an amendment, courts may recognize new exceptions when applying its principles to modern situations the founders never anticipated. In this case, he argues that dramatic changes in immigration law and modern travel may warrant additional exceptions to birthright citizenship beyond those recognized in the 19th century.<\/p>\n

One concern that unites the dissenters is their discomfort with the British common law rule on which Wong Kim Ark based its conception of birthright citizenship.<\/p>\n

Justices Clarence Thomas and Samuel Alito cite an 1868 congressional report arguing that citizenship should depend on where someone intends to make their permanent home. Under that view, people who are only visiting or temporarily in the United States are subject to its laws, but not fully \u201csubject to the jurisdiction\u201d of the nation for purposes of birthright citizenship.<\/p>\n

The dissenters\u2019 reasoning suggests Congress could deny birthright citizenship to children born to parents who are only temporarily in the United States, such as those on student or work visas or traveling for so-called birth tourism.<\/p>\n

But this also introduces disagreements over those who enter the United States unlawfully with the intent of residing here permanently. According to Justice Neil Gorsuch, these unlawful residents might have a claim to domicile under the 14th Amendment:<\/p>\n

\u201cIs a child born here to parents who have long chosen to make this Nation their permanent home not a citizen under the Fourteenth Amendment solely because his parents\u2019 presence violates statutory law? If those parents are not domiciled here, then where are they domiciled?\u201d<\/p>\n

As reflected here, those outside of the majority also believe some applications of the president\u2019s executive order would likely violate the Constitution. But instead of throwing out the whole executive order as unconstitutional, they argue courts should rule on whether particular applications are constitutional as those cases arise and decide in each instance whether\u202fthe exclusions are constitutionally\u202fpermissible or not.<\/p>\n

That\u2019s a far cry from saying that Congress and the president can simply limit birthright citizenship in whatever manner they wish.<\/p>\n

What happens now? <\/h3>\n

People are prone to say that the Supreme Court has \u201csettled\u201d this or that question. It is true that Congress, the president, and the states do often defer to the court. <\/p>\n

But not always. A constitutional amendment can decisively overturn a judicial decision, but the framers of the Constitution wisely set a high bar for such constitutional amendments, and it takes a great deal of sustained political will to pass one. A revised citizenship clause seems highly unlikely to clear that high bar. <\/p>\n

Congress also usually has tools at its disposal for pushing back on and limiting the effects of judicial decisions. Whether they can or will do so here is unclear. <\/p>\n

On one hand, five members of the court have held that the Wong Kim Arkexceptions to birthright citizenship are built in to the 14th Amendment and therefore immune to legislative revision. That would seem to take a congressional response off the table. <\/p>\n

On the other hand, Kavanaugh lays out a potential path to a legislative response that would add limited exceptions to birthright citizenship by extending the court\u2019s reasoning in Wong Kim Ark. <\/p>\n

Would a carefully tailored law curbing birth tourism and perhaps denying citizenship to some recently arrived undocumented immigrants persuade a fifth justice? Would the court give more weight to an act of Congress than to an executive order? It\u2019s not impossible. Would Congress ever summon the political will to pass such a law? That seems less likely. <\/p>\n

Barring these extraordinary measures, the court has ensured that birthright citizenship in American law will remain unchanged, shielded from unilateral executive action. <\/p>\n

Read more From barbecue to burgers, here are the best food deals for America\u2019s 250th<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

It\u2019s more complicated than your social media feed would have you believe <\/p>\n","protected":false},"author":1,"featured_media":3086,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[],"class_list":["post-3087","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-opinion"],"yoast_head":"\nAnalysis: What you need to know about the birthright citizenship decision - American Movers Hub<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/americanmovershub.com\/?p=3087\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Analysis: What you need to know about the birthright citizenship decision - American Movers Hub\" \/>\n<meta property=\"og:description\" content=\"It\u2019s more complicated than your social media feed would have you believe\" \/>\n<meta property=\"og:url\" content=\"https:\/\/americanmovershub.com\/?p=3087\" \/>\n<meta property=\"og:site_name\" content=\"American Movers Hub\" \/>\n<meta property=\"article:published_time\" content=\"2026-06-30T23:08:26+00:00\" \/>\n<meta name=\"author\" content=\"admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"7 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/americanmovershub.com\\\/?p=3087#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/americanmovershub.com\\\/?p=3087\"},\"author\":{\"name\":\"admin\",\"@id\":\"https:\\\/\\\/americanmovershub.com\\\/#\\\/schema\\\/person\\\/b68c8483906c0d2987f271455f0177af\"},\"headline\":\"Analysis: What you need to know about the birthright citizenship decision\",\"datePublished\":\"2026-06-30T23:08:26+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/americanmovershub.com\\\/?p=3087\"},\"wordCount\":1373,\"commentCount\":0,\"image\":{\"@id\":\"https:\\\/\\\/americanmovershub.com\\\/?p=3087#primaryimage\"},\"thumbnailUrl\":\"https:\\\/\\\/americanmovershub.com\\\/wp-content\\\/uploads\\\/2026\\\/06\\\/2fa9bcba01b4dbd6cd607b1bdb220f27.avif\",\"articleSection\":[\"Opinion\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/americanmovershub.com\\\/?p=3087#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/americanmovershub.com\\\/?p=3087\",\"url\":\"https:\\\/\\\/americanmovershub.com\\\/?p=3087\",\"name\":\"Analysis: What you need to know about the birthright citizenship decision - 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