by Mark Pulliam
John Roberts wants to be remembered as the opposite of Roger Taney; instead, he will be compared to Harry Blackmun, the author of Roe v. Wade.
Thanks to Power Line and Real Clear Policy (here)!
Last week’s release of the final batch of SCOTUS decisions produced one blockbuster that dominated the conversation: Trump v. Barbara, dealing with birthright citizenship. The result was not a surprise to me; I had predicted that the Court would rule against President Trump’s executive order. But I was disappointed in the rationale that the majority, in an opinion written by Chief Justice John Roberts, chose to employ. The decision deserves sustained criticism, much in the way that Roe v. Wade deserved—and received—such criticism. The existence of sustained public outrage is necessary for the Court to re-visit a precedent. Our goal must be for a future Supreme Court to overrule Trump v. Barbara, just as Dobbs overruled Roe v. Wade. Only we can’t afford to wait nearly 50 years for that to happen!
But let’s not fall into the trap of blaming the current Court, or John Roberts personally, or Amy Coney Barrett (who provided the fifth vote) entirely for a decision we don’t like. All Roberts’ opinion did was follow a prior precedent, albeit an ancient one from 1898, interpreting the muddled language drafted by the 39th Congress, which framed the 14th Amendment. Until President Trump issued the executive order at issue, 128 years passed since the Court’s ruling in Wong Kim Ark (1898). In that time, as untold millions of babies were awarded citizenship despite their parents’ status as non-citizens, Congress did not lift a finger to fix birthright citizenship, no one successfully waged a campaign to amend the Constitution, and no President showed any initiative to do what President Trump did. There is plenty of blame to go around.
As a result of a century-plus of acquiescence, interrupted only by President Trump’s MAGA insistence that controlling the nation’s borders meant taking citizenship seriously, John Roberts mistook the moment as a replay of Dred Scott v. Sandford (1857)–which is correctly viewed by historians as a misstep that may have pushed the nation toward Civil War—and in melodramatic fashion made a show of demonstrating that he is not Roger Taney, the Chief Justice who succeeded John Marshall only to earn eternal ignominy as the author of the worst decision in SCOTUS history.
That’s how we got the decision in Trump v. Barbara. Justice Alito’s dissenting opinion began with these words:
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.
Let’s unpack it.
What did Trump do, and why: The problem was misinterpretation of the poorly-drafted Citizenship Clause of the 14th Amendment, ratified in 1868. This problem did not arise overnight; it has been around for over a hundred years and will take sustained effort to fix.
The Citizenship Clause is like one of the ink blots in a Rorschach test: “born in the United States and subject to the jurisdiction thereof” is an opaque formulation. The 14th Amendment was intended to “constitutionalize” the Civil Rights Act of 1866, which used a slightly different phrasing: The Civil Rights Act made citizens of “all persons born in the United States and not subject to any foreign power.” The Citizenship Clause means different things to different people, and the varied interpretations tell you something about the observers’ personalities—and priorities.
Based on an old case (United States v. Wong Kim Ark, 169 U. S. 649 [1898]), in Barbara the Supreme Court embraced an expansive reading of “subject to the jurisdiction thereof,” which conferred automatic citizenship on all those born on American soil. This included illegal aliens popping out “anchor babies” (at the rate of 250,000-300,000 per year) and birth tourists from China and elsewhere (CIS estimates 33,000 per year). Wong Kim Ark was controversial even in its day; Chief Justice Melville Fuller and Justice John Harlan (who also dissented in Plessy v. Ferguson in 1896) dissented. But eventually it was accepted as gospel, with only a few dissident legal scholars complaining. But this was before the era of mass migration and open borders.
In recent decades, with the advent of inter-continental air travel and mass illegal immigration, a growing body of scholars believed that birthright citizenship could and should be reined in. Legislation has been (unsuccessfully) proposed in Congress to deal with this going back 30 years or more, with bipartisan support. Sen. Harry Reid (D-NV) once sponsored such a bill. To no avail.
Critics believe that the 14th Amendment was intended only to overturn Dred Scott v. Sandford (1857) and grant citizenship and legal rights to the freed slaves.
Congress passed a statute, 8 U.S.C. section 1401(a), mirroring the Citizenship Clause, as interpreted by the Court. The statute was originally enacted in 1940 and re-adopted in 1952.
This was the pre-MAGA tableau. President Trump was the first President in my lifetime to take concrete action to fix this anomaly, via executive order. The executive order that was challenged is E.O. 14160, issued on January 20, 2025. (It was not limited to “birth tourism”; it went for the whole enchilada. Not that this would have made a difference, as some have contended.)
President Trump’s goal: Eliminate the broad reading to deny automatic citizenship “to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth [i.e., anchor babies], or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth [i.e., birth tourism].”
The E.O. was facially challenged. The ACLU filed Barbara v. Trump asking the U.S District Court for the District of New Hampshire to grant a class-wide injunction covering those who would not qualify for birthright citizenship under the executive order. The representative plaintiff, Barbara, a Honduran citizen, is only known by her first name because she fears for her and her family’s safety.
In December 2025, the Supreme Court granted certiorari before judgment as permitted by its procedures “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination.”
The question to be decided was “whether the Executive Order complies on its face with the Citizenship Clause and with 8 U.S.C. § 1401(a), which codifies that Clause.”
Barbara was argued on April 1, 2026 and decided on June 30, 2026. The Court’s various decisions (majority, concurring, and dissenting) were almost 200 pages long!
Decision(s) in Trump v. Barbara:
The majority opinion was written by Chief Justice John Roberts. It is a major disappointment, in the alignment, holding, and reasoning. The Court could have ruled—as I had hoped–simply that Trump cannot alter a statute (8 U.S.C. section 1401) by executive order. Especially since this was a facial challenge with no factual record. This would have left a role for Congress, and possibly put pressure on Congress to act. Instead, the majority reached the merits—and botched them.
Technically 6-3, the decision was really 5-4, with only Barrett and the three liberals joining Roberts’ decision on the constitutionality. Kavanaugh agreed with the result, on narrow technical grounds, but indicated that in his view Congress could eliminate birthright citizenship by statute.
The majority opinion said that the Citizenship Clause of the 14th Amendment requires birthright citizenship, leaving no role for Congress. This was particularly inappropriate in a facial challenge.
So Roberts’ opinion (26 pages) was not only wrong, it was gratuitously—and ostentatiously—wrong. He reached issues that were unnecessary to address. He foreclosed a legislative solution, at least with the current composition of the Court. However, since the constitutional holding was 5-4, it would require only one seat to flip.
This should be a GOP priority.
What did the Court say? Roberts adopted the ancient English common law rule of jus soli—”right of the soil”—hook, line, and sinker. This rule derives from the monarchy in England, where people were regarded as “subjects” of the King, not self-governing citizens with inalienable rights who are sovereign. With the Declaration of Independence, 250 years ago we rejected the notion of being a “subject” of the King! “Subjects” are not the same as “citizens.” Roberts was so concerned to distance himself from Roger Taney’s opinion in Dred Scott (which he denounced as “odious”) that he took the extreme opposite position. Grooming himself for history, at the expense of the nation’s future. This is pure jurisprudential vanity, topping his Obamacare rescue.
What did the majority get wrong? The 39th Congress’s drafting of the 14th Amendment was messy, sloppy, and confusing. The Citizenship Clause could have been interpreted in a common-sense manner. Wong Kim Ark could easily have been distinguished or overruled. The lengthy dissents by Justice Clarence Thomas (91 pages) and Justice Samuel Alito (39 pages) showed the way. If the Citizenship Clause commands jus soli, how do you explain the exclusion of American Indians from birthright citizenship following ratification of the 14th Amendment (fixed by statute in 1924)? Or the continued recognition of the “legal fiction” that other nations’ ambassadors and diplomatic corps based in the U.S. are not subject to jus soli? You can’t.
Ironically, Roberts enshrines English common law (jus soli) in our 14th Amendment even though, as Alito pointed out in dissent, “the United Kingdom has abandoned [it], as have other countries whose legal systems share the same pedigree.” Because common sense prevails elsewhere. Not in Roberts’ majority opinion, however.
Kavanaugh’s dissenting opinion (10 pages) stated that:
That decision [United States v. Wong Kim Ark, 169 U. S. 649] adopted a general rule of birthright citizenship for those born in the United States—with four disparate exceptions for “children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory” and “children of members of the Indian tribes.” Id., at 693.
Why these four exceptions? The Citizenship Clause does not contain any exceptions. Why only these four exceptions? As Kavanaugh pointed out, the Court could have updated the holding of Wong Kim Ark to reflect the changed circumstances in the U.S. since 1898, or entertained the possibility that Congress could do so. Kavanaugh said that
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…. Consistent with the Fourteenth Amendment, Congress could amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. (Emphasis added.)
Instead, Roberts’ majority decision slammed the door shut. Roberts’ opinion holds that the 14th Amendment “put the ‘great question of citizenship’ ‘beyond the legislative power’ altogether, to settle the issue once and for all.” Thus, Congress is helpless to fix the problems of anchor babies and birth tourism. The door will remain shut absent constitutional amendment (nearly impossible) or until Trump v. Barbara is overruled. The dissents by Thomas, Alito, Kavanaugh, and Gorsuch point the way for a future majority to overrule Trump v. Barbara. As one non-MAGA legal scholar said, “In the end, an opinion meant to settle the debate over birthright citizenship may have instead kindled a new one.”
Thomas dismantled Roberts’ (and the majority’s) adoption of the feudal doctrine of jus soli. Thomas (and Gorsuch) reasoned that birthright citizenship requires more than geographic presence; it also requires allegiance to the U.S. in the form of domicile, which means the legal home of the parents. Foreign nationals—citizens of another country—cannot be deemed to be “domiciled” in a country they entered illegally or which they are only temporarily visiting. Illegal aliens and birth tourists would not qualify. Alito used a slightly different formulation, focusing on whether the non-citizen parents of a child born in the U.S. are “subject to a foreign power,” which entails an inquiry into the rules of citizenship in their home country. He said: “the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.” (Emphasis added.) In many cases, this would preclude citizenship for anchor babies and birth tourists.
Trump v. Barbara was a terrible blunder. Here are the follow-up questions and considerations:
(1) What should the Court have done? Roberts should have done what Kavanaugh did. With one more vote, the dissenters could have punted the decision to Congress with a strong suggestion that it codify the provisions of President Trump’s E.O.
(2) How bad is the majority decision? Worse than Roe v. Wade? Worse than Plessy v. Ferguson? Worse than Dred Scott? It was pretty bad, even though technically it did not change the law. Affirming Wong Kim Ark in 2026 amounts to turning the Constitution into a borderline “suicide pact.” I would compare it to Obergefell in terms of misguided sanctimony, but with far greater consequences. We need to stay mad about it, just as the pro-life community did with Roe v. Wade.
(3) It is appropriate to criticize Barbara as a mistake and an abomination, but we have to maintain some perspective. How has the conservative community reacted? Not with one voice, but generally with extreme disappointment. I don’t fault criticism of the decision itself, but it is wrong to condemn the justices (at least ACB) as a “mistake.” Every one of Trump’s appointments is better than other GOP appointment in my lifetime, excepting only Rehnquist, Scalia (who could be quirky: supported Chevron; held flag burning is protected speech), Thomas, and Alito. Judges aren’t robots.
(4) What are the potential solutions? Long-term: Amend the Constitution (not likely).
Are there any solutions short of constitutional amendment?
A later Court could overrule this with a single switched vote. John Roberts should retire and let President Trump appoint his successor. Future GOP nominees should face a litmus test: “Trump v. Barbara must act as a litmus test for every future conservative nominee.” Amen.
Congress could fix this by statute (per Kavanaugh dissent), but only if Trump v. Barbara is overruled. Section 5 of the 14th Amendment says that Congress “shall have power to enforce this article by appropriate legislation.” This is how American Indians were granted birthright citizenship in 1924.
In the meantime, we must continue with mass deportations (for the illegal aliens already here) and restrict entry for pregnant visitors to curb “birth tourism.” Administrative measures and enhanced enforcement could reduce or prevent abuse. But this will vary depending on who controls the executive branch.
Roberts botched it, but it is not the end of the world. In a self-governing republic, concerned citizens can unite to solve almost any problem. (Or at least Americans used to be able to do so.) Trump v. Barbara should be overruled, as soon as possible. All it would take is a single switched vote.
https://misruleoflaw.com/2026/07/05/john-roberts-birthright-citizenship-hubris/
