The Supreme Court’s recent ruling on birthright citizenship has raised significant questions regarding both presidential and judicial authority.
The U.S. Supreme Court’s ruling in *Trump v. Barbara* was arguably the year’s most highly anticipated. The outcome certainly delivered on expectations. With a 5–4 vote, the Court’s majority upheld the traditional and broad interpretation of birthright citizenship, though four dissenting justices revealed the issue was far more contentious than generally assumed. Furthermore, the Court’s judgment introduces, but fails to resolve, several critical inquiries concerning executive and judicial authority.
The Fourteenth Amendment’s Citizenship Clause in the U.S. Constitution states that “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are considered citizens. This wording is echoed in the 1952 Immigration and Nationality Act. Upon ta<a href="https://absafricatv.com/shatta-wale-king-energy/” title=”SHATTA WALE – KING ENERGY”>king office, President Donald J. Trump issued an executive order declaring that children born in the U.S. to parents who were unlawfully or temporarily present foreign nationals would not be granted birthright citizenship. The Supreme Court’s majority ultimately struck down this executive order, citing constitutional reasons. The Court determined that “a child born on American soil and subject to American law was made an American citizen” by the Citizenship Clause. It further clarified that historical “exceptions” for ambassadors, foreign soldiers, and Indian tribes are justifiable “by a fiction of extraterritoriality” or “rights of extraterritoriality.”
The dissenting justices offered various alternative interpretations for the applicable rule and its exceptions, each drawing some support from historical records. Justice Brett Kavanaugh, for instance, would have concluded that the Immigration and Nationality Act precluded President Trump’s executive order. He reasoned that the law was passed with an underlying understanding that broadly interpreted the Supreme Court’s 1898 *Wong Kim Ark v. United States* decision. Nevertheless, he also posited that the Citizenship Clause itself might only guarantee citizenship to children born to U.S. citizen parents.
Justice Samuel A. Alito believed the constitutional principle was only marginally broader, contending it encompassed foreign parents but excluded those “subject to any foreign power,” a phrase found in the Civil Rights Act of 1866. According to this perspective, if a child born in the U.S. were deemed by a foreign country to be bound by its nationality or citizenship obligations, that child would not qualify. The primary dissenting opinion, authored by Justices Clarence Thomas and Neil Gorsuch, asserted that the Citizenship Clause applies to children born to U.S. citizen parents and foreign nationals residing permanently in the United States—due to the nation’s complete jurisdiction over such parents—but not to children of temporary visitors. They postponed addressing whether and how undocumented foreign nationals might establish domicile.
Despite these dissenting opinions not succeeding, the Court’s majority decision, which upheld birthright citizenship, nonetheless leaves several unresolved issues concerning executive and judicial authority that were implicitly present throughout the case.
The initial question concerns President Trump’s authority to interpret either the Citizenship Clause or the Immigration and Nationality Act for the executive department’s operational purposes. Some observers had suggested that while the U.S. Congress might legislate against a broad interpretation of birthright citizenship, the President lacks the unilateral power to do so. A potential rationale for this stance is that Congress holds unique interpretive authority under Section 5 of the Fourteenth Amendment. This argument is questionable, however, given the Supreme Court’s ruling that Congress cannot define the limits of its own authority. At a minimum, for judicial review in cases brought before them, courts are required to independently interpret the scope of the Fourteenth Amendment.
Furthermore, from an administrative law standpoint, there is ample justification to believe that the President can, in fact, interpret statutes and the Constitution independently. Following the Supreme Court’s ruling in *Dred Scott v. Sandford*, President Abraham Lincoln faced the task of deciding whether to issue passports and coasting licenses to free individuals of African descent. The relevant statutes permitted passports and licenses for “citizens of the United States.” President Lincoln directed his Attorney General to interpret the Constitution and laws for his administrative needs, concluding, contrary to *Dred Scott*, that free African Americans were indeed Americans—meaning, citizens of the United States. Such a determination would likely avoid judicial scrutiny because granting a license or passport would not harm third parties, thus preventing any party from having standing to sue. Indeed, no one would possess a valid cause of action to challenge it. Consequently, if President Trump’s executive order was flawed, it was due to its substantive merits, rather than an inherent impropriety in the President issuing an executive order for his department’s operations.
A broader array of unresolved questions pertains to judicial authority. President Lincoln’s constitutional interpretations would likely never have undergone judicial review under the prevailing legal understandings of his era. However, what about President Trump’s executive order? What provided the basis for judicial review of its findings?
To clarify, matters of citizenship can certainly be brought before the courts. Nevertheless, the scarcity of antebellum judicial cases addressing this issue—apart from those involving race in the Southern states—stemmed from the fact that private rights seldom hinged on the confirmation or denial of citizenship. *Lynch v. Clarke* serves as an example, as it concerned property inheritance, and at that time, foreign nationals were typically barred from inheriting assets. *Wong Kim Ark* dealt with citizenship because Wong Kim Ark had been detained and refused entry into the United States, thereby providing him with a clear cause of action for a writ of habeas corpus.
What, then, justified the legal action taken against President Trump’s executive order? Barbara was neither detained nor had grounds for a habeas corpus claim. She was not attempting to inherit property, meaning there was no private disagreement between two individual parties. No passport had been denied at that point, which would have allowed an aggrieved applicant to sue under the Administrative Procedure Act. So, why did this case become a lawsuit in the first place? It appears that by ruling on the matter, the Supreme Court functioned precisely as a type of council of revision—a body comprising the President and federal judges or justices with the power to veto legislation, a concept the Constitution’s framers had previously rejected.
Moreover, even if a cause of action existed, why would a universal remedy be deemed suitable, as opposed to one tailored to specific parties? This is a crucial inquiry, not only for comprehending the essence of judicial power and review but also because the substantive resolution might have necessitated a party-specific response. The benefit of resolving cases individually is that it allows the analysis to concentrate on specific, tangible facts.
From the perspective of the dissenting justices, this point should be clear. As Justice Gorsuch highlighted, temporary visitors are not considered domiciled in the United States, though some undocumented foreign nationals potentially could be. Yet, even within the majority’s framework, certain questions remain. The majority disregarded an 1860 New York appellate ruling, *Ludlam v. Ludlam*, which had rejected *Lynch v. Clarke* because the state’s highest court adopted an alternative approach and seemingly relied on *Lynch*. However, that *Ludlam* decision actually posited that an individual born in one country to temporary visitors might choose, upon reaching adulthood, one citizenship over another. The majority’s failure to permit this question to be addressed on a case-by-case basis precludes the exploration, let alone the establishment, of a “right of election” perspective, despite it seemingly being held by some commentators, judges, and elected officials around the period of the Fourteenth Amendment’s ratification.
The issue of birthright citizenship has been a subject of intense political debate and represents a complex normative challenge. It is conceivable that the Court might have been better served by allowing this question to develop incrementally through individual cases, particularly when parties had suffered actual harm and possessed legitimate causes of action. In such a scenario, the courts would have, arguably, fulfilled their role in resolving disputes without instantly seizing the authority to settle a matter of immense political and ethical significance. In this regard, the *Barbara* decision could serve as a cautionary example for all judicial oversight of administrative actions.
