“The Supreme Court upheld Birthright Citizenship, which is too bad for our Country, but we can easily make it up in Congress through Legislation, with the support of the President, that has now been determined during this process. No long and unwieldy Constitutional Amendment is necessary! Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship. They will have my Complete and Total Support!”
That was President Donald Trump on June 30 on Truth Social, striking an optimistic tone over the Supreme Court’s 5-4 decision in Trump v. Barbara that the Fourteenth Amendment’s Section 1 citizenship clause: “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…” applies even to children of illegal aliens born in the U.S. as a matter of constitutional mandate, regardless of the President’s executive order to the contrary and, presumably, regardless of whatever Congress might say about the matter.
Of course, the Fourteenth Amendment’s Section 5 states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
But the majority foreclosed the possibility: “Children born in the United States to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause.”
In other words, it won’t matter what Congress says about birthright citizenship in the future, with the Supreme Court majority as it is.
That was Justice Brett Kavanaugh’s dissent: “I respectfully disagree with the Court’s constitutional holding… because the Court addresses the Constitution….”
And yet it was Kavanaugh who held out hope that Congress should be the one to address the issue under 8 U.S. Code Sec. 1401(a): “the Executive Order goes beyond what §1401(a) authorizes. For the Executive Order to be lawful, therefore, Congress would need to amend §1401(a) or otherwise enact new legislation to encompass those two new exceptions. As of now, Congress has not done so… If Congress amends §1401(a) or otherwise enacts a statute creating new exceptions along the lines of the Executive Order for children born to foreign citizens unlawfully or temporarily in the country, such a statute, as I see it, would pass constitutional muster.”
That’s what President Trump is referring to: Congress could pass a birthright citizenship law and then the Supreme Court could reconsider it. The problem is, as presently constituted, the Supreme Court is 5-4 against that proposition. Either Chief Justice John Roberts or Justice Amy Coney Barrett would have to change their vote — which is exceedingly unlikely.
In the meantime, the Supreme Court just told would-be illegal aliens everything they’ve ever wanted to hear: Just come to the U.S. and give birth, and the kids will get to stay here for life. That this is the default position of the Fourteenth Amendment — and neither Congress nor the President can do anything about it short of amending the Constitution.
Unlike Justice Kavanaugh’s dissent — which at least found that Congress could amend federal statutes to address the issue of birthright citizenship for illegal aliens — the majority’s catastrophic ruling locks in anchor babies forever as a matter of constitutional mandate.
Now, it will take two-thirds of the House and Senate, and three-fourths of the states to amend the Constitution if the American people decide to end the anchor baby folly.
And it sends the wrong message: Nothing prevents the illegal alien parents from being deported. And the citizen children will be unable to petition for their parents to become citizens ala chain migration until they are 21 years old under 8 U.S. Code Sec. 1151(b)(2)(A)(i).
And even then, parents who entered without inspection cannot adjust their status — 8 U.S. Code Sec. 1182(a)(9)(B) makes them inadmissible — usually, but that will depend almost entirely on who the President is, whether such applications would be denied. Presumably, that is where Congressional Democrats might wish to go next, providing blanket amnesty for everyone else.
Elections still matter and with the ruling in Trump v. Barbara, admittedly, they may matter a little less, but there are still questions only Congress can settle, including the narrower question of birth tourism (although the ruling makes it appear bleak).
The fact is, prior to the ruling, there were already millions of anchor citizens residing in the U.S. who were treated as citizens all along, and so, for all intents and purposes, nothing’s changed. President Trump tested the provision and failed. Congress can still try to address it via law or constitutional amendment, and so can a future Supreme Court. The status quo prevailed, but that might not always be so.
Robert Romano is the Executive Director of Americans for Limited Government Foundation.
