Justice Clarence Thomas sharply criticized the Supreme Court majority for reading the Constitution to guarantee automatic citizenship to anyone born in the United States, no matter the immigration status of that child’s parents.
In a lengthy dissent, Thomas argued that the ruling weakens the meaning of American citizenship and stretches the Fourteenth Amendment beyond what its framers intended.
The Court ruled 6-3 on Tuesday that President Donald Trump’s executive order, issued on the first day of his second term, violated the Constitution. The order would have limited birthright citizenship to children born in the United States whose parents were legal residents.
At the center of the case was the Fourteenth Amendment, which says, in part, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Chief Justice John Roberts, writing for the majority, said children born in the United States to parents who are either unlawfully present or temporarily in the country are still “subject to the jurisdiction” of the United States. Because of that, Roberts concluded, they are citizens at birth under the Citizenship Clause.
Thomas disagreed. Joined by Justice Neil Gorsuch, he emphasized that the Fourteenth Amendment was adopted after the Civil War in response to the Supreme Court’s 1857 Dred Scott v. Sandford decision, which denied citizenship to Black Americans.
According to Thomas, the amendment and the Civil Rights Act of 1866 were meant to guarantee citizenship to people born and domiciled in the United States, regardless of race. They were not, he argued, designed to grant citizenship to people whose parents had no permanent legal connection to the country.
“Blacks were entitled to citizenship because they were Americans,” Thomas wrote. “They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority.”
Thomas accused the majority of once again using the Fourteenth Amendment to recognize rights he believes are not supported by its text or history. He said the Court had now created a constitutional right to citizenship for the children of foreign birth tourists and illegal immigrants.
The issue has been a major point of debate in immigration policy. The Migration Policy Institute has estimated that birth tourism accounts for as many as 26,000 births in the United States each year, with children later taken back to their parents’ home countries while retaining American citizenship. The Center for Immigration Studies reported last year that between 225,000 and 250,000 children were born to illegal immigrants in 2023, representing about 7 percent of the nation’s 3.6 million births.
Thomas closed his dissent by questioning whether the ruling would endure.
“I am not sure that today’s opinion will stand the test of time,” he wrote. “The Citizenship Clause added greatly to the dignity and glory of American citizenship. Today’s opinion devalues that citizenship.”
Justice Samuel Alito also dissented separately. He argued that the Fourteenth Amendment grants citizenship only to people born or naturalized in the United States who are not subject to a foreign power.
Alito said the majority took a much broader view, interpreting “subject to the jurisdiction thereof” to mean simply being subject to American laws while present inside the country.
He warned that the ruling would preserve a strong incentive for people to enter or stay in the United States illegally. He also noted that, aside from Canada, the United States would remain the only affluent country where birth alone is enough to confer citizenship.
“If the Fourteenth Amendment required these results, the country would have to live with them or amend the Constitution,” Alito wrote. “But the Fourteenth Amendment does not include the rule the Court now imposes on the country.”
In Alito’s view, the majority had made a serious mistake with consequences that could shape the country’s future.
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