Supreme Court Upholds Birthright Citizenship — for now

Malik Miah

THE SUPREME COURT ruled on June 30 that President Trump could not end birthright citizenship by Executive Order. In practical terms, the Court upheld the plain language of the 14th Amendment that children born in the United States are and remain U.S. citizens at birth,

While the vote was 6 to 3, Vice President JD Vance said it was actually 5 to 4 since Justice Brett Kavanaugh, in a concurring opinion, told the Trump regime how it can use Congress to overturn the Constitutional Amendment — something that has never occurred, and cannot occur without a new Amendment.

It’s important to recall that on day one of his second term, January 20, 2025, Trump signed this Executive Order (Presidential Proclamation) even before he launched his anti-immigration campaign.

Redefining who can be a citizen preceded his drive to arrest, detain and expel Brown and Black immigrants with or without legal status.

Three far-right Justices Thomas, Alito, and Gorsuch, supporting Trump’s executive order cancelling birthright citizenship, argued in essence that a clearly stated, long-affirmed Constitutional right can be annulled — by simply ruling that it doesn’t say what it says.

If that could be done to overthrow birthright citizenship, every other right — from free speech and freedom of the press to non-establishment of state religion, for example — could also be targeted by the same twisted logic.

The far-right white nationalists who run the Trump White House are up in arms, not only figuratively, and plan to push hard to kill equality. They openly reject a multiracial/multinational democratic state.

All of this is openly stated, with their plans to reverse democratic African American gains since the Civil War — not just the 1963 Civil Rights revolution. The 14th amendment was ratified on July 9, 1868, and is a crucial part of the Constitution that addresses citizenship rights and equal protection under the law.

“Major Victory” or Speed Bump?

While civil rights and democratic rights supporters hail the court ruling as a major victory, in truth, it’s more of a speed bump to the supporters of reestablishment of a White Republic.

Remember that during the Civil War, President Lincoln had not been for abolishing slavery until it was clear the only way to defeat the Confederacy. That was why he had to issue the Emancipation Proclamation in 1863. (Karl Marx had said in London, at the outset of the war, that this was the North’s only path to victory.)

Thus, it is more accurate to call today’s Court’s birthright citizenship ruling as less than definitive. After all, even with the 14th, 15th and 16th Amendments the Court was able to legalize racial segregation with its 1896 Plessy v. Ferguson ruling. Under Jim Crow Blacks were citizens, but with limits. A similar dichotomy is seen with Court’s earlier gutting of the Voting Rights Act: a right that can’t be implemented.

The understanding by some of us that this is indeed a setback but not a crushing defeat to these racist forces is important for the next stage of organizing a fightback. Only a strategy of mass resistance and rebellion can stop them.

The liberal establishment leadership (including elected Black officials) promotes status quo politics, which means waiting for elections while being outorganized by the right.

Worse, they focus their fire on left critics like democratic socialists.

As ICE agents were already entering hospitals looking for “illegal” immigrants, the Court rejected Trump’s order that tried to deny citizenship to some babies born in the United States based on their parents’ immigration status.

The Court relied on the 14th Amendment’s Citizenship Clause and longstanding precedent, especially the 1898 case United States v. Wong Kim Ark, which has long been understood to protect birthright citizenship for people born on U.S. soil. Yet the court’s extremist minority openly declares this century-old ruling should be repealed.

Chief Justice John Roberts of the 6-3 majority said that a president cannot rewrite that rule on his own through an executive order. The phrase “subject to the jurisdiction” in the 14th Amendment — which exempts children born to foreign diplomats stationed on U.S. territory — does not let the government exclude broad categories of U.S.-born children when their parents are undocumented or in the country temporarily.

While Justice Brett Kavanaugh voted with the majority, in a separate statement he claims that Trump could vet the amendment by Congress passing a law saying so. Scholars and experts on the Constitution reject his argument, which would give Trump the green light to openly pursue a white nationalist agenda. The courts had blocked the order before it could take effect, and the Supreme Court ultimately agreed that the order was unconstitutional.

The decision is also a separation-of-powers decision, saying that the president cannot override constitutional citizenship rules unilaterally.

The dissenting justices would have allowed the restrictions to take effect. They argued for a reading of the 14th Amendment more sympathetic to the administration’s claim that not all U.S.-born children are automatically covered. Clarence Thomas issued 91 pages of argument (longer by far than the whole Constitution itself) trying to make this claim.

Academic experts of the Constitution had hoped for 9-0 ruling based on all readings of the 14th Amendment, or at worse a 7-2 decision. But 6-3, along with Kavanaugh’s vote also backing Trump’s aim was too close.

The America 250 Crossroads

What made this country unique at its founding is it was created as a Republic, not a new monarchy. True, when George Washingon became president, he brought his own nine enslaved persons to the Presidential House in Philadelphia. Thomas Jefferson also owned hundreds of slaves while president as well. But the contradictions at the heart of the country’s founding were challenged by generations of hard struggle, on-the-ground reality and social evolution.

On the 250th anniversary of the country’s founding, the White Republic wing of the ruling class wants to return to white supremacist norms of 1776, which were already so deeply embedded in colonial practice that they didn’t even need to be explicitly stated. It took nearly a century through a second armed revolution, the U.S. Civil War, to end slavery and open the country to becoming a multiracial republic.

Just the day before the birthright citizenship decision was announced, the Court majority found no discrimination in removing Temporary Protected Status from over 300,000 Haitians. This indicates how far the Court majority is prepared to go in reinterpreting Trumop’s racist remarks. Nonetheless, the Court’s affirmation of birthright citizenship, for now at least, blocks the president from implementing his Executive Order — although the administration has already filed complaints about pregnant women gaming the system. The far right, whether it wins or loses, continues its campaign, as it has done around the right to abortion.

One important nuance: this is a high-stakes legal topic, so if you need advice about a specific immigration situation, a qualified immigration lawyer is the right source for personalized guidance.