America First Policy Institute Responds to Supreme Court Decision on Birthright Citizenship

WASHINGTON, D.C. — The America First Policy Institute (AFPI) today responded to the United States Supreme Court’s 6-3 decision in Trump v. Barbara, holding that children born in the United States to parents who are unlawfully or temporarily present are “subject to the jurisdiction”of the United States and thus citizens at birth under the Fourteenth Amendment’s Citizenship Clause. AFPI filed an amicus brief urging the Court to reconsider the original meaning of the Citizenship Clause and clarify that it was designed to secure citizenship for those fully subject to the jurisdiction of the United States—not to extend automatic citizenship in every circumstance. As AFPI explained, "the Citizenship Clause of the Fourteenth Amendment… mak[es] it clear that for one to be recognized as a citizen he must satisfy two conditions: residence and allegiance.”

The case arose from a challenge to Executive Order No. 14160, Protecting the Meaning and Value of American Citizenship, and presented the Court a long-overdue opportunity to align the Clause's text and history with the realities of modern immigration. Writing for the Court, Chief Justice Roberts affirmed a broad understanding of birthright citizenship and let the injunction against the Order stand. But three Justices dissented and embraced the very reading AFPI advanced. Justice Alito wrote that the Fourteenth Amendment "confers citizenship on only those children who, at birth, owe allegiance solely to this country," and warned that the Court "ha[d] made a serious mistake" in "one of the most important decisions in the history of the Court." Justice Thomas, joined by Justice Gorsuch, concluded that the majority's rule "devalues that citizenship."

Justice Alito also warned that the decision "has national-security implications." He explained that under the majority's rule, a person born here to a mother present only long enough to give birth—who is raised abroad in a "strategic adversary or enemy" nation and "inculcated with hatred of this country"—is nonetheless a U.S. citizen who "can travel the world on a United States passport," and who, "[e]ven if he plots to harm this country," cannot be stripped of that citizenship. AFPI maintains that the meaning of American citizenship must remain faithful to the Constitution's original design.

The decision also leaves significant questions unresolved. Only five Justices joined the constitutional holding—Justice Kavanaugh concurred solely in the judgment, on narrower statutory grounds, and Justice Thomas wrote that he is “not sure that today’s opinion will stand the test of time”—leaving the ruling’s durability in doubt. The scope of the political branches’ authority also remains contested. The majority placed citizenship “beyond the legislative power,” but Justice Kavanaugh—who would have invalidated the Order only for lacking congressional authorization—wrote that “Congress could—consistent with the Fourteenth Amendment—amend” the governing statute to establish exceptions, indicating that Congress and the Executive acting together may succeed where unilateral executive action did not. The three dissenters, in turn, would not read the Citizenship Clause to compel citizenship for these children at all. And because the case was decided as a facial challenge, Justice Thomas, in dissent, reserved “for another day the question whether the children of illegal aliens can be domiciled here.”

“Make no mistake – this catastrophic decision further undermines and devalues the sanctity of citizenship and sovereignty, which are foundational to our functioning republic,” said Chad Wolf, chair of Homeland Security and Immigration at AFPI. “As three Justices recognized today, the Constitution's design ties citizenship to both residence and allegiance, and those limits were never meant to extend to every circumstance without exception."

Wolf continued: “Birthright citizenship remains a powerful incentive for illegal immigration and has real world national-security implications.. That is why I call on Congress to act where the Executive alone could not — to amend Section 301 of the Immigration and Nationality Act to deny automatic citizenship to children born to parents unlawfully or only temporarily present.. AFPI will continue to advocate for policies that reflect the original intent of the Fourteenth Amendment."