WASHINGTON — A divided Supreme Court on Tuesday upheld a broad conception of birthright citizenship, rejecting President Donald Trump’s executive order declaring that children born to people who are in the United States illegally or temporarily are not American citizens.
The vote to strike down the order was 6-3, but just a bare majority of five justices, in an opinion written by Chief Justice John Roberts, held that the long-settled understanding of the 14th Amendment, adopted after the Civil War, makes a citizen of anyone born in the country, with very limited exceptions,
“Citizenship, then and now, was the right to have rights — to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land,’” Chief Justice John Roberts wrote for the court, citing congressional debate over the amendment, “We keep that promise today.”
Justice Brett Kavanaugh joined the majority, pointing to a federal law he said broadly conveys birthright citizenship. But he dissented on the constitutional question.
Justices Samuel Alito, Neil Gorsuch and Clarence Thomas would have upheld Trump’s proposed restrictions.
Justice Clarence Thomas’ 91-page dissent, more than three times as long as Roberts’ opinion, said the decision “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.”
Trump said the decision was “too bad for our Country” and wrongly suggested Congress could “easily” address it with legislation. The majority decision rests on constitutional grounds. It would take an amendment to overcome the decision.
During arguments in April, both conservative and liberal justices questioned the order’s legality in a momentous case that was magnified by Trump’s unprecedented attendance in the courtroom.
The case framed another test of Trump’s assertions of executive power — assertions that defy long-standing precedent.
Tuesday’s ruling dealt specifically with Trump’s appeal of a lower-court ruling from New Hampshire that struck down the citizenship restrictions.
Birthright citizenship was the first Trump immigration-related policy to reach the court for a final ruling.
Trump seemed to recognize the court was likely to rule against him on birthright citizenship, using his Truth Social platform to criticize “dumb judges and justices” and wealthy pregnant women from China and elsewhere who come to the U.S. to give birth so their newborns will have American citizenship.
The 14th Amendment was intended to ensure that Black people, including former slaves, had citizenship, though the Citizenship Clause is written more broadly. “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,” it reads.
That has been understood to confer citizenship on everyone born in the U.S., excluding only children of foreign diplomats and those born to a foreign occupying force.
In several decisions, lower courts have struck down Trump’s executive order as illegal. The decisions have invoked the high court’s 1898 ruling in Wong Kim Ark, which held that the U.S.-born child of Chinese nationals was a citizen.
Roberts, joined by Justice Amy Coney Barrett and the three liberal justices, said the amendment’s language, the historical context and the 1898 case make clear that children born to parents illegally or temporarily in the U.S. “are citizens at birth.”
Kavanaugh sided with the majority because of a federal law that makes those children citizens. But he joined the dissenters in finding that Trump’s order does not violate the Constitution.
The Trump administration had argued that children of noncitizens are not “subject to the jurisdiction” of the United States and therefore are not entitled to citizenship.
More than one-quarter of a million babies born in the U.S. each year would have been affected by the executive order, according to research by the Migration Policy Institute and Pennsylvania State University’s Population Research Institute.