On June 30, the Supreme Court blocked President Trump’s executive order threatening the end of birthright citizenship in a 6-3 decision. The ruling upholds Section 1 of the 14th Amendment, which states that “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.”
Carol Rose, executive director of the American Civil Liberties Union of Massachusetts, joined GBH’S All Things Considered host Arun Rath to help break down this historical decision. What follows is a lightly edited transcript of their conversation.
Arun Rath: I just read that first line of Section 1. That is the full line, up for interpretation. From there, it goes on talking about representation in Congress. It’s just that one line there about birthright citizenship. It seems to pretty clearly state the case for birthright citizenship. I’m wondering if going back to when the Supreme Court agreed to take this up, if you were surprised that they did agree to hear the Trump administration’s appeal to the lower court’s ruling.
Carol Rose: Yes, I mean, we were actually surprised, and we’re pleased that they came out the way they did because this court’s decision basically reaffirms that fundamental American promise that if you’re born here, you’re a citizen.
Rath: And you were — your organization was a part of the coalition that did challenge the executive order. Walk us through how this came together, how you took the call to action from there.
Rose: Well, the ACLU — both the national ACLU, the ACLU of Massachusetts, New Hampshire, and Maine, together with other organizations — filed this lawsuit within hours of Trump’s executive order, which he signed on the first day in office of his second term. And we filed that suit because we knew he had promised that he was going to do this. And so, we promised that we’d be ready. And we represented a class of all babies who would be subject to President Trump’s harmful and frankly blatantly unconstitutional and unlawful executive order restricting birthright citizenship. This judgment is one of the most important constitutional cases that we’ve had in the past 100 years. And not only is it important to reaffirm the right to birthright citizenship, but it’s also important to reaffirm that a president can’t change the Constitution by executive fiat.
Rath: Going back to that line from the 14th Amendment, I know I keep reading it, but it’s just a line. It’s super easy. “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the state wherein they reside.” There’s only one clause in there, Carol — “subject to the jurisdiction thereof.” Is that what was being argued?
Rose: Yes, that’s what was being argued. And the real question, and it was articulated both by Chief Justice Roberts, who authored the opinion, but also by Justice Ketanji Brown Jackson, who wrote the concurring opinion, that what matters here is not blood but soil. If you are born here, you get the rights of citizenship automatically. And that’s been something that’s been true in this country pretty much forever, but certainly since post-Civil War, after the Dred Scott decision, where there were efforts to say that previously enslaved people couldn’t be citizens because of their blood, so to speak. But then it subsequently was upheld time and time again, not just to apply to formerly enslaved people, but to all people who are born here, because that’s the promise of America.
Rath: The big case the last time that the Supreme Court ruled on this, it involved an Asian American, right?
Rose: That’s right. Wong Kim Ark is the case that it was called. And there was an effort again to say, ‘Well, if you’re not domiciled here, if your parents weren’t domiciled here, you don’t get those protections.’ But that’s simply not true. This should have been a 9-0 decision. There have been countless decisions over decades of precedent that have established the doctrine that all people who are born in this country get the benefits and privileges that come with being an American citizen. And can you imagine, Arun, if in fact the court had ruled the other way? It would’ve created a permanent class of stateless people — an underclass, if you would, an apartheid state of people — who were born in this country but wouldn’t be citizens of this country and wouldn’t be citizens of any country. And the fact that we didn’t have a 9-0 decision shows how close we are to having a court that might actually move in that direction and why it’s so important that the ACLU fought this case and won this case.
Rath: Let’s talk some more about that, about the dissent from Justices Alito, Gorsuch, and Thomas. How do you take that, and what it might say about their understanding of the Constitution and executive power?
Rose: Well, I mean, I think we’ve seen with this court and in a lot of other decisions that came out of this session of the Supreme Court, we’ve seen a real desire to really give power not just to the executive branch, but to this particular president in a way they didn’t with previous presidents. And also, a reading of the Constitution in a way that really would uphold this false notion that somehow the United States is a nation made for white, Christian people and not for all people. So, for so long we’ve been fighting and working for this, that this is an important victory for all Americans, and that includes Asian Americans — who for generations were told that they don’t belong here — for African Americans, for Hispanic Americans. For all people in this country who were born here, who have come here as part of the American dream and part of the American democratic experiment. It’s just so terribly important that we see that and that we also recognize at the same time that this is a court that would try to limit the dream; that would try to limit the Constitution to only a select few people. And that’s simply not the American dream. That’s not the American Constitution. And that’s not what our founders wanted. Our cultural diversity and our openness to ideas, to innovation, and to free expression rests on this fundamental principle of equality under the law. You know, while we should never have had to bring this case, the decision can form a foundation for a renewed commitment to our, frankly, audacious and visionary multicultural democracy.
Rath: We’ve been dissecting the dissent and talking about Justices Alito, Gorsuch, and Thomas. But Justice Kavanaugh — and help me understand this — he voted with the majority, but it was not with him a full-throated endorsement of this understanding.
Rose: That’s right, and that’s really telling. The fact that Justice Kavanaugh voted with the majority, giving it a 6-3 decision in favor of upholding birthright citizenship, but only five of those justices — that’s Chief Justice John Roberts, Justice Amy Coney Barrett, Kagan, Jackson, and Sotomayor — they voted that it’s protected under the Constitution. Birthright citizenship is clearly set forth in the 14th Amendment to the Constitution. What Kavanaugh argued was that, in fact it’s not necessarily protected, but that only Congress can change the law and interpret the law. And so, he opened the door for Congress to be able to say, yeah, we’re actually going to exclude some people under the 14th Amendment, and only some people get to come. And that really is dangerous because that suggests that that could be changed by legislation. Fortunately, there’s still a 5-4 decision that still finds that it’s protected by the Constitution. And that means that threats by President Trump, which he put out on social media just after the decision came down, saying, “We’ll take it up with Congress and pass a law.” Well, you can’t pass a law to overcome the Constitution. You’d have to have a constitutional amendment. So, it’s really important that we have those five votes in favor of upholding birthright citizenship as a matter of constitutional law.
