On birthright citizenship, the matter now rests not with the court but the country. We have never truly had a national debate over the practice.
Below is my column on Fox.com on the birthright citizenship case. Republicans in Congress have already submitted legislation for both a new constitutional amendment and specific bars on birth tourism. The legislation will obviously move more quickly and, if challenged, could give the Court another opportunity to address the issue. However, the most direct way of addressing the issue remains a 28th Amendment.
Here is the column:
Today, Folarin Balogun secured a spot on the American soccer team for the World Cup…for a second time.
That may be the most positive spin I can offer to those upset by today’s 5-4 decision in favor of birthright citizenship. Balogun, one of the stars on our team, was born to Nigerian parents visiting the United States and then raised in England.
According to the Supreme Court, he is — and was always intended to be — a citizen under the Fourteenth Amendment.
It is a conclusion that divided the court 5-4, but, as in soccer, a one-point win is as good as a nine-point win.
Roberts wrote for the majority that “The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”
The victory for birthright citizenship was due to the joining of Chief Justice John Roberts (who authored the decision) and Justice Amy Coney Barrett with the three liberal justices. They found the language and history of the amendment to be clear and, relying on prior rulings dating back decades, concluded that birth alone in this country is enough to confer citizenship — even if born to a tourist or someone briefly on our soil.
It is a view that is rejected by the vast majority of countries, which rightfully view birthright citizenship as bonkers, including some which followed the practice and then rescinded it. The United States remains one of the outliers in maintaining this ill-considered practice.
Justice Clarence Thomas wrote a dissent, joined by Justice Neil Gorsuch, effectively arguing that this is the invention of the Court, which refused to reconsider its lazy prior analysis. That included the Court’s 1898 ruling in United States v. Wong Kim Ark, which expanded birthright citizenship beyond what the Reconstruction Congress had ever “contemplated.” He noted that the Court could have resolved the case on narrower grounds consistent with the 14th Amendment: “Wong Kim Ark addressed only the citizenship of a child born to parents who were lawfully and permanently domiciled in the United States.”
The 5-4 decision unleashed another furious broadside on social media against Barrett, particularly after she authored the 5-4 decision on mail-in ballots again, this time with Roberts and her liberal colleagues.
Barrett hit a nerve as one of the three Trump appointees, whom many hoped would be more in the vein of Alito or Thomas. Instead, she often writes with Roberts.
The attacks on Barrett ignored that there are good-faith arguments on both sides of the birthright citizenship case. They also ignore that she regularly voted with the conservatives and for positions of the Administration. For example, she voted to support states in requiring transgender athletes to compete with their biological sex. She previously was the most vocal justice in rejecting transgender status as a protected class akin to race or religion.
President Trump has lashed out at his nominees over their adverse rulings. However, they remain one of his most impressive and positive legacies. President Trump said that he wanted independent and principled conservatives. He got them in Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. They are all extraordinary jurists who have dramatically elevated the Court’s intellectual discussions.
When I testified at Gorsuch’s confirmation in the Senate, I told the senators that they were wrong to pigeonhole the nominee: he would go wherever his convictions took him. That has proven to be the case, and it is a great credit to Trump that he selected such independent minds.
On birthright citizenship, the matter now rests not with the court but the country. We have never truly had a national debate over the practice. The basis and future of birthright citizenship have remained matters almost exclusively for the courts.
We must now decide whether to pursue such a debate as a constitutional amendment.
While Congress can pass legislation cracking down on birth tourism, there is only so much that such laws can do in questioning why particular births occurred in the United States, such as the birth of Balogun.
I can think of no more appropriate debate to have as we celebrate our 250th anniversary than what it means to be a citizen of this unique republic.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
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Schweizer: More than a Million ‘U.S. Citizens’ Being Raised in China Due to Birth Tourism
Washington Post: SCOTUS Is Wrong on Birthright Rules
Even the Washington Post agrees the U.S. Supreme Court overreached by trying to prevent voters and politicians from shaping the rules about who can get shares of Americans’ citizenship.
“The justices decided more than they had to,” as they rejected President Donald Trump’s Executive Order curbing birthright citizenship, said an op-ed by the very pro-migration editorial board at Jeff Bezos’ newspaper.
“The case could have been decided on narrower ground,” including by citing Congress’ 1952 citizenship law, the paper noted, adding:
Declining to reach the constitutional question would have allowed that [citizenship] debate to continue. Opponents of the decision could have pressed their case in Congress, which the 14th Amendment explicitly empowers to enforce its provisions. Legislators might have considered fixes for some of the policy problems Trump’s order was meant to address — including “birth tourism,” or traveling to a U.S. jurisdiction solely for the purpose of ensuring citizenship for one’s child.
The Post‘s acknowledgement that citizens should sometimes be allowed to govern their own country was also reflected in the court’s split decision, where four of five court judges accepted that Americans have some rights to curb the existing elite-backed practice of awarding citizenship to birth-tourists, temporary workers, or illegal migrants.
That court’s split was a surprise to the court’s lawyers, the New York Times admitted:
In the end, birthright citizenship as a constitutional right survived by one vote — the latest sign of how far the conservative legal movement has shifted on the issue.
“This should have been a 9-0 decision,” said Bethany Li, executive director of the Asian American Legal Defense and Education Fund, which filed an amicus brief against the president’s order.
…
“A year and a half ago, people said there was no support for this view, that it was ahistorical and atextual,” said Ilan Wurman, a law professor at the University of Minnesota who filed an amicus brief in support of Mr. Trump’s executive order. “So to get four votes for the Trump administration’s position here is quite a coup.”
In a second New York Times article, other law professors griped about the close result:
[Kate] Shaw: Trump lost by only the narrowest of margins; the vote was 5-4 on the constitutional question. What does it say that this effort… [which] you describe as the most unconstitutional thing Trump has done — came this close to succeeding?
[William] Baude: We should be thanking our lucky stars for [majority votes from] Chief Justice Roberts and Justice Barrett.
[Stephen] Vladeck: It’s a striking indictment of the dissenters — especially Justices Neil Gorsuch and Brett Kavanaugh.
Similarly, many pro-American lawyers, politicians, and activists are alarmed and demoralized by the court’s 5-4 decision to bind citizens with constitutional handcuffs formed from medieval legal extrapolations, Ivy League dreamcasting, and “grotesque” disregard for reality.
But politicians and activists say that citizens can gradually win this political fight against elites and their many subordinate and imported allies.
“The fact that this case was a 5-4 decision effectively means that the concept of birthright citizenship… is hanging by a thread,” Vice President JD Vance told Laura Ingraham, adding:
What I take from that is, yes, we’ve got to fix the immigration system even more, we have to be even more aware of who is coming into our country to make sure that they are not benefiting from this atrocious Supreme Court ruling. But, it also means that we have to keep fighting, because we actually have an opportunity to reverse this decision just as we’ve reversed so many bad decisions throughout the generations.
“The fight to restore American citizenship and retake our nation begins in earnest today,” said a Tuesday tweet by Theo Wold, who worked in President Donald Trump’s White House during the first term. Wold wrote:
There is a whitepill from the Supreme Court’s ruling on birthright citizenship. When I worked in the 45 White House, I drafted President Trump’s original birthright citizenship executive order. At the time I was laughed out of rooms by senior legal officials at the White House who told me it wouldn’t get a single vote at the Supreme Court. Today, there were four votes at SCOTUS for the right reading of the 14th amendment.
Citizens do win fights with the judges. On Tuesday, for example, public opinion helped the court’s swing-voting judges knock down a wave of pro-transgenderism rulings by lower judges amid a lavishly funded, elite-run pro-transgenderism political campaign by many advocacy groups and media outlets.
One strategy, say experts, is for the agencies and Congress to pass laws that address obvious political problems stemming from the court’s ruling.
The government should be “doubling down on enforcement, preventing the issuance of non-immigrant visas to pregnant women, add a pregnancy question to the B1/B2 [tourist] visa application,” said Mark Krikorian, director of the Center for Immigration Studies. He told Breitbart News:
Republicans, since they’re the only ones who are interested in this issue, need to make this a political issue by making the case in a sustained way to the public — not just waving their arms around and saying it’s ridiculous. They should operate a sober, substantive case that makes the Democrats defend birth tourism.
“Congress could, if it chose, address the issue of birthright citizenship for the children of non-permanent aliens,” wrote Yale law professor Jed Rubenfeld in The Free Press:
Statutes could, for example, severely punish birth tourism. If the illegal alien parents are deported, it might even be constitutional to keep their minor children united with them, in the interests of family unification.
“But Congress has passed no such law,” he added.
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Three of Nine Supremes Believe in ‘Transgender Girls’
Three of the nine justices on the U.S. Supreme Court believe that boys can swap their legal sex to become girls by just saying so.
The endorsement of the revolutionary demands of transgenderism came from Justice Sonia Sotomayor, backed by Justice Elena Kagan and Ketanji Brown Jackson, who wrote:
[Male] Respondent B. P. J. is a transgender girl who wants to live her life consistent with her gender identity.
The three judges’ acceptance of the so-called “transgender” claim is based on the progressives’ political demand that people they favor can and should be liberated from biological, intellectual, and social constraints that they dislike. In contrast, conservatives believe that civic norms and laws should manage the competitive and unchanging nature of human biology, such as biological differences that would disadvantage nearly all women in mixed-sex sports competitions.
The faith in progressive self-liberation is described in the three judges’ dissent against the court’s majority decision that recognized the legal term “sex” has been based on unchangeable biology:
The term “sex” in Title IX, the Javits Amendment, and the Title IX regulations cannot plausibly be interpreted to refer to anything other than biological sex. The ordinary meaning of the term “sex” at the time of enactment in the early 1970s was biological sex and not gender identity, particularly in the sports context
But boys’ constitutional claims to be legally defined as girls, the three judges claim, should be decided by lower-court judges according to the specific details of each case:
When B. P. J. was 11 years old, she sought the opportunity to do what she and so many other children love to do: play sports …. [and now] contends that neither of the State’s asserted justifications apply to transgender girls like her, who have never experienced an endogenous male puberty, who receive gender-affirming treatment, and who, as a result of both, B. P. J. says, lack any athletic advantage that is inherent to their sex identified at birth.
…
the majority holds that transgender girls like B. P. J. who wish to play girls’ sports are not protected by the Constitution … Yet the Equal Protection Clause demands much more when a State deploys a sex classification to achieve legislative aims. Perhaps West Virginia could meet those demands. Perhaps not. In either event, because unresolved factual questions prevent the Court from assessing the merits of B. P. J.’s equal protection claim at this time, the Court should allow the District Court to address those factual questions in the first instance. Yet in an opinion unencumbered by fact or law, the majority today cuts off that process prematurely, deciding instead that B. P. J.’s case must end now.
Their revolutionary demand would entangle sports competitions in many legal arguments, giving judges and political advocates — not referees and sports officials — control over Americans’ sports culture.
The three judges somehow portray their aggressive demand to promote elite-managed “gender” law above citizens’ long-standing management of sexual differences as judicial “restraint”:
This litigation implicates deeply sensitive, contentious, and evolving issues. These circumstances demand exercising judicial restraint, not rushing to answer conclusively difficult questions without sufficient evidentiary development.
The three “restraint” judges’ demand for power is spotlighted by their claims that the six-judge majority unfairly “favors” the vast majority of Americans over the tiny share of people who claim to be “transgender”:
The majority extends great sympathy to those it favors: the young cisgender girls and women who play sports … the majority, however, inflicts a hardship on those it disfavors.
The three “restraint” judges also voted with two GOP-nominated judges to impose a nation-shaping birth citizenship mandate on American citizens. The mandate says that foreign parents must be allowed to transform their children’s legal identity to an American citizen if they illegally cross the United States’ 4,000-mile border before the births.
In contrast to the revolutionary demands for power by the three judges, many polls show that Americans prefer that they and their elected politicians manage the evolution of the two sexes’ competing, cooperative, and complementary priorities.
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