In a long-awaited decision by a mostly conservative Supreme Court stacked by President Donald Trump, birthright citizenship will continue to be the law of the land in the US, a majority of the justices decided on Tuesday.
The decision came down to a tight 5-4 ruling, although one justice who disagreed – Brett Kavanaugh – still said that longstanding federal law would have upheld birthright citizenship anyway.
“Citizenship, then and now, was the right to have rights – to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land’,” Chief Justice John Roberts wrote for the majority.
“We keep that promise today.”
Under the 14th Amendment of the US Constitution, with limited exceptions including diplomats on assignment and foreign militaries, all children born in the US automatically become US citizens.
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But the Trump administration took the unprecedented step last year of seeking to abolish that right, particularly for undocumented immigrants, as well as visitors who engage in so-called “birth tourism”.
There are an estimated 12-14 million undocumented people in the US, according to the Immigration Research Initiative.
There is no known government data for how many people come to the US just to have citizen children, but at last count, in 2020, according to the Center for Immigration Studies, between 20,000 and 26,000 are estimated to have done exactly that.
The US has a population of 349 million.
‘Not a privilege’
The Trump administration has positioned itself as the most anti-immigrant government yet, having so far revoked at least 100,000 visas, deported some half a million immigrants, and put some 70,000 others in immigration detention centres that have been criticised for overcrowding, lack of hygiene, and poisoned food.
The US asylum programme has effectively been terminated, and temporary protected status (TPS) for those unable to return to unsafe countries has been cancelled for Afghans, Syrians, and Haitians.
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Immigrant advocacy groups were jubilant in their reactions to Tuesday’s ruling, but also cautioned that the White House will likely try to chip away at other lawful immigrant protections over the next three years of Trump’s term.
“While we welcome this decision, our work is far from over. We will continue to stand with our communities to ensure that every person’s constitutional rights are respected and that no administration can undermine the protections guaranteed by the Fourteenth Amendment,” Fernando Garcia, executive director of the Border Network for Human Rights, said in a statement.
“Today’s ruling reminds us that the Constitution belongs to all of us, and it is strongest when it protects everyone equally.”
Shawn VanDiver, the president of #AfghanEvac, said the court’s decision “should not have been a close question”.
“For thousands of Afghan families rebuilding their lives in America, this ruling provides important certainty. Whether their parents are Special Immigrant Visa holders or applicants, refugees, asylees, humanitarian parolees, Temporary Protected Status holders, or navigating other immigration pathways, children born in the United States remain protected by the Constitution.”
Jenin Younes, the president of the American Arab Anti-Discrimination Committee, called birthright citizenship “a constitutional guarantee, not a privilege to be granted or withdrawn by executive order”.
But with his executive order voided, the president took to his social media platform Truth Social shortly after the decision was announced to say he would now push Congress to overturn birthright citizenship protections by writing it into law.
“No long and unwieldy Constitutional Amendment is necessary! Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship. They will have my Complete and Total Support!” Trump wrote.
“The most conservative and, frankly, anti-immigrant Supreme Court just told Trump ‘don’t mess with birthright citizenship’. I think it’s safe for now,” Hassan M Ahmed, managing partner with The HMA Law Firm just outside of Washington, DC, told Middle East Eye on Tuesday.
“I don’t expect this to have any serious traction” among a broad swathe of lawmakers, he added.
The White House has insisted that birthright citizenship “was meant for the babies of slaves” and not “for people trying to scam the system and come into the country”.
The vast majority of the world grants citizenship by descent, and not by birthplace, barring a few dozen countries that grant birthright citizenship. But the concept is deeply entwined with American history.
So, across North and South America, where a person is born matters a great deal.
Ahmed told MEE that birthright citizenship is “sacrosanct” precisely because “it is the beginning of a reckoning of a shameful legacy” in which enslaved people were considered three-fifths of a person in the US.
The 14th Amendment was ratified in 1868, after the Civil War, and extended birthright protections to all those born here.
