Takeaways from the Supreme Court’s rebuke of Trump on birthright citizenship

By John Fritze, Devan Cole, CNN

(CNN) — The conservative Supreme Court dealt a significant blow to President Donald Trump’s immigration agenda Tuesday, ruling that his administration could not use an executive order to end birthright citizenship for hundreds of thousands of babies born on US soil every year.

Though not unexpected, the decision is a huge loss for a president who ran for a second White House term in part on ending “birth tourism” and whose administration has been defined by a push to crackdown on illegal and legal immigration. And yet, the decision was not as fulsome a rejection of Trump’s effort as had been widely predicted.

Several conservatives broke from the majority — a division that Trump has already sought to exploit.

The 6-3 decision was arguably the most anticipated of a Trump-heavy Supreme Court term in which the president has suffered a number of high-profile losses, including on tariffs and independence at the Federal Reserve — but also a number of notable wins.

Here are the key takeaways from the court’s historic decision on birthright citizenship.

Roberts: The language is clear

In something of a trademark maneuver, Chief Justice John Roberts pared down a complicated legal issue that has roiled Washington for more than a year into a relatively straightforward, 26-page opinion.

Full of references to history — another classic Roberts approach — the chief said that the text of the 14th Amendment simply didn’t support the idea that the framers intended to limit birthright citizenship to citizens or people who intended to live in the country permanently.

“If Congress intended to limit American citizenship to the children of those domiciled in the United States, nothing in the succinct language of the citizenship clause conveyed that design,” the chief justice wrote. “Words appearing frequently in the executive order — ‘mother,’ ‘father,’ ‘lawful,’ ‘temporary’ — are absent from the clause. For a simple reason: they did not matter.”

In that sense, Roberts’ reasoning tracked with what conservative justices often say is their approach to the law: reading the words on the page, rather than trying to glean intent that can be open to interpretation.

Roberts also leaned heavily on a landmark 1898 decision from the Supreme Court, US v. Wong Kim Ark, in which the justices then read the 14th Amendment to grant citizenship to the son of Chinese nationals.

“What the Court held in Wong Kim Ark was simple: the Citizenship Clause incorporated the common law and granted citizenship to nearly all children born in the United States,” Roberts wrote. “Not surprisingly, then, in the 128 years since, we have repeatedly understood the rule of Wong Kim Ark to guarantee citizenship to all children born in the United States and subject to its power. We see no reason to depart from that view today.”

Conservative fury

If Roberts was hoping to send a message with a mostly united court, he didn’t get to do so.

In the end, only one other conservative justice — Amy Coney Barrett — joined his opinion in full. They were joined by the court’s three liberals, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

The three conservative justices who dissented from the court’s ruling together wrote more than 130 pages to express their frustration with the majority.

Justice Samuel Alito, one of the court’s most senior conservatives, got right to the point as he opened his solo dissent: “This is one of the most important decisions in the history of the court, and in my judgment, the court has made a serious mistake.”

He went on to argue that the 14th Amendment does not extend the guarantee of citizenship to anyone merely born on American soil and that his colleagues’ decision “preserves a powerful incentive” for noncitizens to enter and stay in the US unlawfully.

Justice Clarence Thomas, in a nearly 100-page dissent joined only by Gorsuch, also skewered the court’s majority over its decision, writing that it effectively “devalues” citizenship as it was understood by the framers of the 14th Amendment.

“I am not sure that today’s opinion will stand the test of time,” he wrote.

Thomas wrote that the majority had “repurposed the Fourteenth Amendment to protect its own set of preferred rights” and that its decision could not be squared with the text of the amendment, which he believed was solely intended to ensure former slaves and their children would have citizenship.

But it was that point that drew strong pushback from Justice Ketanji Brown Jackson, who criticized Thomas over what she saw as a notable shift in his usual “longstanding endorsement of a ‘colorblind’ Constitution.” The embrace of a colorblind Constitution has been a central theme of the current conservative majority, and it has influenced decision after decision.

Jackson contended that it was Thomas who had “repurposed” the 14th Amendment, writing that his view, that of the Trump administration and a “handful of revisionist commentators” offered an “alternative account” that “pitches Black Americans against immigrants when the advocates who promoted the Fourteenth Amendment did no such thing.”

Kavanaugh would leave a door open

In practical terms, the decision was a loss for Trump. But the unusual split among conservatives suggested that the case was much closer than many had predicted it would be.

Justice Brett Kavanaugh was key to that split.

Trump’s second nominee to the high court filed an opinion that agreed with the outcome but disagreed that the Constitution barred Trump’s order. Instead, Kavanaugh would have let Trump lose on a federal law enacted in 1952.

That law has identical language to the 14th Amendment, but it was enacted with a general understanding by lawmakers at that time that anyone born on US soil was a citizen. Kavanaugh would have concluded that the framers of the 14th Amendment had a different understanding of the same language than members of Congress did nearly a century later.

Under Kavanaugh’s approach, this president — or a future one — could try to convince Congress to limit birthright citizenship by passing a law.

“In my view, the executive order does not violate the Fourteenth Amendment,” Kavanaugh wrote in his partial dissent.

Congress could, Kavanaugh wrote, try to “enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country.”

Kavanaugh’s partial dissent was not joined by any other justice.

Roberts goes big

Trump reacted to the decision by suggesting that Congress could pass a law to end birthright citizenship. But the president — or his attorneys — may have been reading a different decision than the one the court actually issued.

The court’s opinion was clear: Children born in the country, even to parents here illegally, are citizens under the 14th Amendment.

“Those children are thus subject to the jurisdiction of the United States,” Roberts said of children born to people in the country unlawfully or temporarily. “They satisfy both elements of the citizenship clause: they are ‘born … in the United States’ and ‘subject to the jurisdiction thereof.’”

“Under the Constitution,” Roberts wrote, “they are citizens at birth.”

The constitutional fight centered around the meaning of the 14th Amendment’s citizenship clause, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Trump’s attorneys trained their focus on the second part of that clause: “subject to the jurisdiction thereof.” That line, they argued, excludes many immigrants in the country illegally and legally.

Trump and his allies say the language was never intended to automatically entitle foreign nationals to citizenship for their children. When the framers included the words “subject to the jurisdiction thereof,” they say, that meant that birthright citizenship would be extended to people who have a “direct and immediate allegiance” to the United States. One clear way to establish that allegiance, the government said, is to be “domiciled” in the country and not just passing through.

The majority made quick work of that argument.

“If Congress intended to hinge citizenship on each individual’s domicile — a question that ‘is sometimes a matter of great difficulty to decide’ — it is reasonable to expect there would have been at least some discussion of the topic,” Roberts wrote. “Yet the word ‘domicile’ appears just twice in the discussion of the relevant provision of the Civil Rights Act. And it appears in only one speech from the Citizenship Clause debates — as part of an explanation of why state citizenship is distinct from national citizenship under the Constitution.”

Trump’s mixed record

The birthright citizenship decision landed on the final day of a Supreme Court term — a poignant bookend in the president’s fraught relationship with the judiciary since returning to power. It is notable, given the vitriol Trump has leveled against the court this year, that Roberts chose to close out the term by handing the president a huge loss on one of his top priorities.

The decision came a day after the court limited Trump’s power to fire a Federal Reserve governor, although that decision will give the administration plenty of room to continue its campaign against the Fed in the future. In perhaps the most significant Trump loss this year, the court in February shut down the president’s ability to levy global emergency tariffs.

But the president also scored plenty of significant victories — even if some of them were Trump adjacent.

In the win column, the Supreme Court vastly expanded the president’s power to fire the leaders of independent agencies and it allowed the administration to end temporary humanitarian relief for potentially more than a million people who have been living in the US legally to escape conflict and natural disaster in their home countries.

Trump framed the Supreme Court’s decision on firings as “one of the most important ever given with respect to Presidential Powers.”

The court’s other major decision Tuesday, allowing states to ban trans athletes from competing on girls’ sports teams, didn’t have a direct impact on the president’s administration, but it was nevertheless very much in line with his agenda and rhetoric.

The throughline of those decisions is that while the Supreme Court continues to move the law to the right, it is doing so in cases that align with its own agenda — not necessarily Donald Trump’s.

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