Trump v. Barbara: Babies Won, But the Fight Over Birthright Citizenship Isn't Over
Inside the Supreme Court’s opinions, the amicus briefs, and the one vote that separated this country from a very different and disturbing rule for children.
I. The Result and the Disturbance
On June 30, 2026, in the case of Trump v. Barbara, the Supreme Court struck down Executive Order 14160 and, with it, the Trump administration’s attempt to end birthright citizenship. The vote was 6-3.
Chief Justice Roberts wrote for the majority, joined on the constitutional question by Justices Sotomayor, Kagan, Barrett, and Jackson. Justice Kavanaugh concurred in the judgment on statutory grounds alone. Therefore, on the constitutional question, the vote was just 5-4.
Justices Thomas, Alito, and Gorsuch dissented.
By any measure, this is a win for children.
It is an affirmation of the centuries-old practice since our nation’s founding (extensively documented in Chief Justice Roberts’ opinion), confirmed with the adoption of the Fourteenth Amendment to the Constitution in 1868, confirmed with the Supreme Court decision in Wong Kim Ark in 1898 and multiple other court decisions, federal statutes (as Justice Kavanaugh noted), and decades of federal practice and administrative law.
Children’s advocates, immigration lawyers, and constitutional scholars have fought for this outcome for a year and a half, and it is the right outcome.
In contrast, if President Trump and his advisor Stephen Miller had their way, babies would have been born into legal limbo, and many would have been made permanently stateless and subjected to increased exploitation unless they were able to prove their own parent(s)’ citizenship status. Birth certificates would no longer prove a bright-line of proof of citizenship.
If the Executive Order had been allowed to go into effect, all 3.6 million babies born in this country would have to petition for citizenship (with children of color placed under more intense scrutiny) and potentially be denied access to critically important and life-saving health care and nutrition services while awaiting a determination from an undefined bureaucrat in some agency somewhere in the bowels of the federal government.
And if a mere Executive Order could overturn the meaning of the Constitution’s Citizenship Clause, then another Executive Order could make it retroactive and threaten the status of people like Secretary of State Marco Rubio, FBI Director Kash Patel, and Ohio Republican gubernatorial candidate Vivek Ramaswamy, among others. Prosecutory discretion could threaten and put under scrutiny just about anyone and they would have to prove parental status at intent when they were born.
These facts have not received much attention. While there is much discussion about a myriad of other issues, this case is fundamentally about the lives, well-being, and rights of babies. While most of the focus is on the status of parents, the harm would be imposed on one group and one group only: BABIES.
This bears repeating: this is, in the most literal sense possible, a case about who is a citizen at the exact moment of birth. Full stop.
At First Focus on Children, we often decry the invisibility of children – the tendency of our political institutions to focus on the adults surrounding children while overlooking the needs and best interests of children themselves. In the opinions of the dissenting judges, they reveal a related problem: judicial blindness to children.
If you read the opinions and are looking for the baby — for sustained attention to what it means to impose a legal status test on a person who cannot speak, cannot testify, cannot produce a document, cannot explain her parents’ state of mind — you will mostly come up empty. In this and other cases, children are the prime beneficiaries or casualties without ever becoming a part of the analysis.
That absence is not evenly distributed.
Ever so briefly, the majority opinion by Chief Justice Roberts touches on how children are the focus, but the opinion is dominated by history and precedent — Wong Kim Ark, English common law, Dred Scott, the Reconstruction Congress — important doctrine about what past courts decided, but little in the way of sustained reasoning about the children impacted by the decision.
Justice Jackson’s concurrence is the one opinion that actually stops and looks at the baby as a person entitled to dignity in their own right.
Sadly, Justices Thomas and Alito did something well beyond mere inattention and neglect of babies and children: they built entire, elaborate constitutional theories in which an infant’s legal existence is wholly derivative of the status of their parents — where those parents were “domiciled,” what “allegiance” they held, and are facts a newborn cannot know, cannot prove, and in a meaningful number of real American births, nobody can know.
That goes beyond neglect. That is a design choice two Justices were prepared to impose on this country, and the immense harm to would impose on babies is ignored. Their position of allowing the president to overturn well over a century of constitutional precedent and understanding lost by a single vote.
This piece is about the range of opinions — from the majority’s borrowed reasoning, to Jackson’s exception and focus on children, to what Thomas and Alito would actually have done to the lives of countless children if they had prevailed.
II. The Majority: The Right Answer, but Missing the Focus on Children
Chief Justice Roberts’ opinion for the Court is, on its own terms, a serious piece of constitutional history. It walks through English common law and the concept of natural allegiance owed by anyone born within the sovereign’s protection. It walks through the Civil Rights Act of 1866 and the Fourteenth Amendment’s repudiation of Dred Scott in 1868, including the actual congressional debates. It addresses United States v. Wong Kim Ark and rejects, at length, the government’s attempt to read a domicile requirement into that 1898 decision. All of this is careful, well-supported, and correct – although not all that focused on the child.
If you read the majority opinion end to end, you will find a legal argument organized around precedent, sovereignty, and the historical meaning of “subject to the jurisdiction thereof.” What you will not find, for most of its length, is attention to what any of this actually means for an infant — to the fact that the entire dispute is about a person who, at the moment the law says citizenship attaches, has done nothing at all except be born.
There are two exceptions, and they are worth highlighting because they show the majority glimpsed the point about newborns but then largely moved past it. The first is in the Court’s summary of how the domicile theory of the Citizenship Clause developed in the late nineteenth century.
Describing the scholars who first proposed conditioning citizenship on parental domicile, Chief Justice Roberts wrote that they “focused on the parents’ status, not the child’s.”
Later, Chief Justice Roberts added:
Words appearing frequently in the Executive Order – “mother,” “father,” “lawful”, temporary” – are absent from the [Citizenship] Clause. For a simple reason: they did not matter.
Chief Justice Roberts saw the sleight of hand by the presidential decree. He recognized that the Constitution’s text is child-centered in its clear description:
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.
The Citizenship Clause is about the baby, not the parent. The text clearly says “all persons born…in the United States.”
Born. That is the constitutional subject. The child. At the moment of birth. On American soil.
That is why it is called birthright citizenship and not bloodright.
What is not mentioned is who a child’s parents are. Not whether they were lawfully present, temporarily present, or permanently settled. It also only mentions where the child was born. The constitutional inquiry begins and ends with the baby, not the parents.
This mirrors language from the Declaration of Independence, adopted in 1776, when it declared that “all men are created equal.” The Declaration’s promise was aspirational but, at the founding, betrayed by slavery. The Fourteenth Amendment was the moment the Constitution tried to make that promise literal and enforceable — to say that being born here grants all babies the fundamental right of citizenship.
A newborn does not need to earn their way into “all.” They are already inside it, by the same word the country used to describe itself at its founding and again when it rewrote the Constitution’s Fourteenth Amendment to truly mean it.
At oral argument, Justice Jackson pressed the Trump Administration’s Solicitor General on how gutting the meaning of birthright citizenship would actually function — asking directly whether hospitals would need to check parents’ papers “in the delivery room.”
The government’s answer was that a federal agency would make citizenship determinations after birth, with the child free to contest such determinations “after the fact.” During that interim period, it seems that babies would be “stateless.”
That exchange and response by the Solicitor General — a newborn’s citizenship subject to bureaucratic determination and after-the-fact appeal — gives us a glimpse into what was at stake for actual children as the entire case produced. It surfaced only when a Justice pushed the government, out loud, to say what its rule would practically mean for every single baby born in this country.
But they don’t focus on the parents. It’s the child.
It is difficult to imagine a clearer statement of the constitutional issue before the Court. Justice Barrett recognized, in 10 words at oral argument, what much of the litigation had obscured: the Citizenship Clause is about the child.
III. Jackson: The Opinion That Saw the Children
As in the case of oral arguments, Justice Jackson’s concurrent opinion is critically important, as it is not just centered on a doctrinal outcome but on recognizing that a child has fundamental rights and whose dignity is the point.
Jackson joined the majority in full. She wrote separately because the majority’s framing, careful as it was, was not the whole story she wanted told — and because Justice Thomas’s dissent, in her view, badly mischaracterized what the Fourteenth Amendment was for.
Whereas Thomas argued that the Citizenship Clause was a narrow, race-specific remedy meant only for the children of freed slaves and those who shared their particular history of dispossession, Jackson called that reading “myopic.” She argued instead that the Amendment was written as an “anticaste, antisubordination reset” — a guarantee of “equal dignity” that does not run out at the edges of any one group’s historical experience, including the group Thomas said it was written for.
Jackson asked what kind of person the Clause was designed to protect, and answered: any child born here are entitled to what Frederick Douglass said was “the glorious birthright of our common humanity” — a birthright that does not depend on bloodline, parental status, or caste.
Justice Jackson explains why birth is the trigger for citizenship and points out that the alternative is a system that sorts newborns into castes based on facts about people other than themselves. The Fourteenth Amendment’s Citizenship Clause exists specifically to foreclose that kind of sorting.
Justice Jackson asks what kind of Constitution we have, and concludes it is not one that assigns children a caste at birth. Every child, at birth, has the fundamental right to citizenship.
That makes what comes next difficult to read. Because if one Justice could look directly at the child and conclude that dignity forecloses caste, two other Justices looked at the same child and built entire theories of the Fourteenth Amendment in which the child’s status was completely ignored.
IV. Thomas and Alito: Not Neglect, But a Hostile Theory of the Child
Justice Thomas’s dissent, joined by Justice Gorsuch, runs 91 pages — his longest in nearly three and a half decades on the Court. Justice Alito wrote separately, joined by no one. Between them, they proposed two different legal tests, “domicile” and “allegiance”, to uphold the Executive Order.
It is worth being precise about what each test actually asks, because the abstraction is doing a lot of work to hide how little either one has to do with the babies whose citizenship are at stake.
Domicile. Thomas’s theory holds that the Fourteenth Amendment extends citizenship only to children whose parents were “domiciled” in the United States at the time of birth — a legal concept borrowed from adult civil law, describing a person’s fixed, principal home along with the intention to remain there. Thomas describes what domicile does in the ordinary case: it determines “which government had the power to impose personal taxes on a person,” and it governs “his personal affairs, his conduct abroad, his personal taxes, and the natural duties of protection and allegiance.”
Read that list again with an actual newborn in mind. A baby has no personal affairs to speak of. They have no conduct abroad. They pay no taxes and never have.
Justice Thomas also wrote, “The Citizenship Clause was enacted for people who were born in this country and called it home.” Again, we are talking about infants.
Everytime Thomas tried to make “domicile” sound like a serious, well-established legal concept in this case is a consequence that has no content whatsoever for the person this case is about: BABIES.
That is not a minor omission. It is evidence that the entire doctrinal apparatus was built for adults making choices about where to live and work, and it is being imported wholesale into a context — the legal status of a person seconds old — where none of its machinery actually makes sense.
Allegiance. Alito’s test asks whether a child, at birth, owes “complete allegiance” solely to the United States, rather than being — in his words — automatically made a “national” of a parent’s home country by that country’s own laws. This has the same problem as domicile, dressed in different vocabulary.
Allegiance, as a legal concept, has always been evidenced by things a person does: where they live, what oaths they take, whether they serve, whether they vote, whether they pay taxes here rather than somewhere else.
A newborn has done none of these things and is capable of none of them. “Complete allegiance” as applied to an infant is not actually a measurement of the infant at all — it is a proxy for the citizenship laws of a foreign country the child has never seen, operating automatically and without anyone’s consent.
If a baby born in an American hospital happens to also acquire, say, Indian or Nigerian citizenship the instant she is born, because those countries confer citizenship by descent regardless of anything her parents intend, Alito’s framework treats that foreign legislature’s rule — a rule the baby, her parents, and the United States had no hand in writing — as evidence about where her loyalty lies.
Alito is effectively arguing a foreign parliament gets a vote in whether an American-born child qualifies for full American citizenship. The baby does not.
The self-refuting concession. Alito’s opinion actually contains its own rebuttal. He acknowledges directly that children are “not responsible for their parents’ violation of our immigration laws.”
And yet, his legal conclusion strips them of citizenship anyway. That is not a close call he is wrestling with in good faith. Alito’s stated point is immediately abandoned in his very next breath, and the distance between the concession and the holding is, by itself, close to a complete rebuttal of the position.
“Birth tourists” and the EB-5 asymmetry. Furthermore, Alito writes that the majority’s rule “produces grotesque results,” pointing to the example of a “birth tourist” — his term for a woman who enters the country solely to give birth and then leaves — whose child becomes an automatic citizen, while a foreigner “who wish[es] to immigrate lawfully must sometimes wait for many years.”
This framing is utterly unfair to the child in question, who has done nothing except be born here and, in most cases, grow up here. Children born and raised here learn the Pledge of Allegiance, sing the national anthem, are taught about our nation’s history and the Constitution, and often know no country but this one.
Compare it instead to a program Alito does not mention: the EB-5 immigrant investor visa, which for years has offered a green card, and eventually citizenship, to wealthy foreign nationals, their spouses, and their children in exchange for a qualifying investment — no residency history required, no civic knowledge tested, no upbringing here at all.
If Alito’s objection is that birth tourism produces citizens who have not “earned” the tie he thinks the Clause requires, that objection applies with far more force to a program that sells the identical outcome to people with money but no connection to this country whatsoever. That is more fitting of the definition of “grotesque results.”
Alito’s “grotesque results” framing, in other words, only seems to trouble him when the children are born to a parent who is poor, undocumented, or here temporarily, but never when they are to wealthy immigrants, their spouses, and their children with potential no ties or understanding as to the culture and norms of our country.
Kavanaugh’s partial concurrence. Justice Kavanaugh’s partial concurrence with the majority was brief and rested on statutory grounds rather than the Constitution itself. Kavanaugh at least acknowledges that Congress has passed laws and the “Executive Branch consistently interpreted” the practice of birthright critizenship.
But like the Thomas and Alito opinions, it devoted little attention to the newborns whose citizenship was at stake. Even his choice to not engage the constitutional question meant leaving largely unexplored the children most directly affected by the outcome.
Gorsuch’s partial break. Justice Gorsuch joined Thomas’s dissent but wrote separately as well. In it, he expressed real doubt about applying the executive order to children whose parents had made the United States their home for years, even without legal status — questioning whether the government’s own theory could coherently answer where such parents were “domiciled,” if not here. That doubt did not change his vote. But it is worth noting plainly: even inside the dissent that would have upheld the Executive Order, the justices radically disagreed over what the rule would actually do to real children of parents who had lived here for a decade or more. Thomas and Alito did not pause, but Kavanaugh and Gorsuch did.
What is disturbing is that none of these opinions ask what constitutional principle justifies making a newborn’s legal identity depend entirely upon facts about other people. The infant disappears from view. Their opinions ask that a newborn be judged on facts about someone else’s status and caste — facts that are, for the child, not simply hard to prove but unknowable in principle at the moment the law says citizenship attaches.
The next section shows how far from hypothetical that unknowability really is.
V. What Conservative Policy Already Assumes
Here is a fairness point worth making, because it cuts against the very people who built the domicile and allegiance tests, using their own policy record rather than anything from the plaintiffs’ side of this case.
A number of other laws that conservatives strongly embrace incorporate the very concept of birthright citizenship. As one example, federal law allows states to extend Children’s Health Insurance Program (CHIP) coverage to what is called the From Conception to End of Pregnancy (FCEP) option with the openly stated understanding that the child is a citizen automatically upon birth, without any inquiry into the parents’ status.
That premise is written into both federal and state policy, and it assumes exactly what Thomas and Alito’s dissents deny: that birth alone, not the domicile or allegiance of the parents, is what makes a baby a citizen. It is also strongly supported by the pro-life community.
In addition, Donald Trump personally led the charge and served as the public faces of the conservative “birther movement” in 2011 when he questioned President Barack Obama’s citizenship and demanded that he release his birth certificate as proof of citizenship — not proof of domicile, allegiance, or intent of his parents’ status.
And again, President Trump, at this very moment, is promoting the SAVE Act, which is legislation that conservative lawmakers are championing as a citizenship-verification measure for voter rolls. Once again, it treats a birth certificate as sufficient documentary proof of citizenship.
It seems that everybody, regardless of political ideology, gets that a birth certificate is fundamental to citizenship status. And what it records: the date, the place, and the names of the parents says nothing whatsoever about where those parents were domiciled, what allegiance they held, whether they had dual nationality, or what their immigration status was at the moment of delivery.
If a birth certificate is good enough to prove citizenship for “birthers” and for voter-eligibility purposes of SAVE Act proponents, then how is it that they suddenly decry Chief Justice Roberts’ majority opinion that place of birth is treated as conclusive for citizenship.
It is impossible to reconcile these positions, and it exposes the attack on birthright citzenship as being completely out of step with centuries of precedent of how our legal system has treated newborns and their birth certificates.
While some opponents of birthright citizenship have declared the decision will have catastrophic consequences, such claims are ludicrous. Again, it is important to emphasize that the Court’s decision actually made no change to practice and policy: it simply affirmed the Constitution’s clear language, Supreme Court precedents, numerous other similar federal and state statutes, and centuries of practice based on the practice of granting newborn’s birthright citizenship.
And yet, it has somehow sparked some to declare the end of civilization. Justice Alito, himself, made the following cringeworthy statement:
This is one of the most important decisions in the history of the Court, and in my judgment…, the Court has made a mistake that will seriously affect the country’s future.
Again, the Roberts majority opinion literally changed nothing.
VI. The Amici: How Far from Hypothetical This Really Is
In contrast, several briefs in the case before the Supreme Court highlighted the unworkability of the President’s Executive Order for American babies and families.
First, Project Rousseau’s amicus brief in the case opened with a critically important statistic: over one longitudinal study period, 11.7% of all births nationwide were registered with an unknown father — no name at all on the birth certificate. That number climbs to nearly a third of births to mothers under twenty.
Under a domicile or allegiance test keyed to parents, an unknown father is not an edge case. It is more than one in ten American births.
The brief’s most affecting example is anonymized as “A.” — a young client born to a mother with temporary residency who had been raped by A.’s American citizen father. A.’s birth certificate lists an unknown father; A. herself was never told his identity. Her mother, traumatized by repeated assaults and afraid of what reporting a rape might mean for her immigration status, never pursued any legal process to establish paternity.
Under the Citizenship Clause (current law), none of that matters — A. is a citizen because she was born here. However, under the Trump, Thomas, or Alito framework, establishing her father’s citizenship or lawful status would have been the only way to secure hers, which means the law would have handed her mother an impossible choice: reopen a horrific trauma to try to identify and legally establish a connection to her rapist, or leave her daughter’s citizenship unresolved.
The brief also documents a second, more mundane but equally telling scenario: a woman separated — but not legally divorced, for religious and family reasons — from a husband who is not her child’s biological father. In every state, that husband is listed as the presumed father on the birth certificate by default. The child’s actual biological father, a U.S. citizen, has no legal path onto that document. Under a parentage-dependent citizenship test, this ordinary, unremarkable family situation — separation without formal divorce, common across many communities for reasons having nothing to do with immigration — would leave a citizen’s biological child unable to establish citizenship through the parent who is actually a citizen.
In addition, the brief details what may be the most institutionally embedded example of all: every state’s Safe Haven law, which allows a parent to surrender a newborn anonymously with no questions asked or identification required. At least thirteen states go further, issuing a “Foundling” birth record with no parental information at all — continuing a legal tradition, codified in federal law since 1940, of treating a child of literally unknown parentage as a citizen by default.
The Foundling Statute assumes citizenship does not depend on identifying anyone’s parents. Thomas and Alito’s domicile or allegiance tests, respectively, assume the opposite and cannot be reconciled with a legal system that, in these specific instances, is deliberately designed to make parentage unknowable.
Furthermore, my own organization’s brief, joined by the Center for Law and Social Policy, other child advocacy groups, and several physicians and psychologists, made a point the doctrinal debate tends to skip past entirely: even for babies who remain citizens under a parentage-based rule, the process of proving it would itself cause harm.
If the President’s Executive Order was allowed to overturn radically change the meaning of the Citizenship Clause, every baby born in this country — not just the children the order targeted — would have faced new paperwork burdens, bureaucratic delays, and the very real possibility of a lapse in health and nutrition support during, as our brief put it, the most critical period of life and early development.
The brief also lists the specific family circumstances the executive order simply had no answer for: children conceived via IVF or IUI, births via surrogacy, and children of same-sex parents, where the order’s own text defined “mother” and “father” only as biological progenitors — leaving the non-biological parent in a same-sex marriage with no defined status under the order at all.
None of this is hypothetical. It is what every fertility clinic and every state vital records office already handles routinely. It is these children that the President’s Executive Order would disproportionately threaten to harm.
As we argued in our brief:
In the United States, citizenship at birth is a fundamental right. By operation of the Fourteenth Amendment, every baby born within our borders claims citizenship equally, regardless of parentage, ethnic heritage, race, or any other factor.
Elimination of birthright citizenship would irreparably harm babies and children, regardless of whether their parent is an American citizen or permanent resident.
In addition, the United States Conference of Catholic Bishops’ (USCCB) brief forcefully argues human dignity is inherent in personhood and does not depend on citizenship, immigration status, or parentage. Denying an innocent newborn citizenship based on her parents’ immigration status is not merely unfair, but the brief cites this Court’s own precedent, which held that stripping citizenship is a punishment this Court does not permit even for someone convicted of a crime. As USCCB point out, citizenship stripping of a child, who is guilty of nothing, is a harsher sanction than what the Court itself has said is too severe for a criminal.
Read together, these briefs from three different disciplines — family law, child advocacy, and moral theology — arrived at the identical conclusion: a citizenship test keyed to parental status fails constantly, across ordinary and common features of American family life, and for reasons that have nothing to do with anyone’s immigration status but everything to do with how families are actually formed.
VII. Corruption of Blood: The Constitution Already Has a Name for This
Finally, there is a clause in the Constitution that almost never comes up outside of law school, but it belongs in this argument because it names precisely what Thomas and Alito’s tests would do and why the Framers wrote it specifically to forbid their proposed outcome.
That clause, Article III, Section 3 gives Congress the power to punish treason, but forbids the “corruption of blood,” which protects the family and descendants from being penalized.
Prior to the nation’s founding, corruption of blood was a real and devastating punishment. A person convicted of treason was deemed to possess “corrupted” blood, stripped not only of their own property but of the ability to pass anything to their children, and their children’s ability to inherit through them at all — what one legal historian called the “legal death of the family.” A parent’s guilt did not just punish the parent. It reached forward and disabled the next generation, regardless of anything that generation had done.
The Framers despised this. James Madison, writing in Federalist No. 43, described the clause as designed to prevent Congress from “extending the consequences of guilt beyond the person of its author.”
When the Supreme Court interpreted the clause in Wallach v. Van Riswick, it put the point as plainly as it can be put: the clause exists “for the benefit of the children,” a declaration that “children should not bear the iniquity of the fathers.”
As Max Stier wrote in a 1992 Stanford Law Review article, this principle did not stay confined to treason. It has surfaced, unstated but doing real work, in a line of Supreme Court cases.
For example, it was invoked in King v. Smith, which called Alabama’s denial of welfare benefits to children based on their mother’s conduct “reminiscent of the archaic corruption of the blood.”
The Supreme Court also struck down a Louisiana law burdening illegitimate children in Weber v. Aetna Casualty and Surety Co. that “imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility.”
And in Plyler v. Doe, the Court struck down Texas’s attempt to bar the children of undocumented immigrants from public schools, holding that “legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”
Babies are innocent and have committed no crimes. And yet, it is babies that would have been subjected to harm by the President’s Executive Order.
It is akin to imposing a fine on a child sitting in the back seat of a speeding car driving by their parents, but with far graver consequences.
VIII. Not Settled, and Not Hidden
Although the Court has ruled in favor of protecting the fundamental rights of children, it would be a mistake to read this decision as the end of the story, because within days of the ruling, the people with the power to reopen it said, plainly, that they intend to.
President Trump called the decision “too bad for our Country” and posted that Congress should “start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship,” insisting that “no long and unwieldy Constitutional Amendment is necessary.”
House Speaker Mike Johnson, appearing on Fox News, said he was “very disappointed” and told viewers that the ruling “subjects the country to serious challenges going forward,” predicting that “the conclusion from this opinion is going to be you’ve got to amend the Constitution to fix that.” He went further in a separate interview, explicitly praising Justice Thomas’s dissent as a roadmap, framing birthright citizenship as something that has “devalued” American citizenship.
A number of legislators have also already announced their intentions to pursue either a formal constitutional amendment or other forms of legislation to undermine and tear away at birthright citizenship.
Although they are not agreed on the mechanism to overturn birthright citizenship — some acknowledge that only a constitutional amendment would work. However, Justice Kavanaugh’s separate opinion has been read by some in Congress as an invitation to try rewriting decades-old federal statutes instead.
Innocent babies, it seems, must be targeted for some form of harm. Every one of these routes ends in the same place: a newborn’s citizenship would be put at risk and made conditional.
It is also worth being honest about the tone some of this advocacy has already taken, because “the babies are invisible in the reasoning” understates what is happening in parts of the conservative commentariat.
On the same day I was writing this piece, columnist Kurt Schlichter published a Townhall piece laying out, in specific and practical terms, how conservatives should “chip away” at birthright citizenship until, as his headline put it, they can “finish it off entirely.”
Among his proposals: prioritizing the deportation of pregnant women, detaining them at Guantanamo Bay, barring from re-entry any woman who gives birth here while not a permanent resident, and pursuing denaturalization proceedings against children after the fact, despite his own acknowledgment that such proceedings would raise serious due process problems.
Schlichter described the newborns themselves this way:
How are we going to change the view of the 14th Amendment citizenship clause that says that essentially any unwanted foreigner’s brat who pops out with a placenta on U.S. soil is a U.S. citizen just like you or me?
This is no longer about the invisibility of babies and children in the discussion. The framing by Schlichter, is a description of a newborn — using birth itself, the placenta, and the child as the object of contempt — as something less than a person, an “unwanted foreigner’s brat.”
The Bulwark’s Adrian Carrasquillo documents how others in the MAGA movement are calling for more extreme measures, such as Sean Davis (CEO of the Federalist) calling for the “forced sterilization” of “all foreign visitors” or the outright “Dissolution of the Union” — all because the Supreme Court upheld current law and century’s old practice of the treatment of babies born in this country.
It is worth naming, plainly, what the tactics of opponents to children are seeking to do here. Opponents of birthright citizenship cannot attack children and propose harm to babies directly. Instead, they will be employing six framing and communications tactics, on repeat, until the public no longer sees babies and children in the conversation. These tactics are well documented in political psychology and communications research.
Relevant target substitution. The public generally regards children as one of the most sympathetic, “deserving” groups there is — high sympathy, no capacity to have brought their circumstances on themselves. Attacking a baby directly risks significant backlash. So the relevant target is swapped in opposition framing: the debate is shifted to attack their parent’s constructed “unworthiness”. The child disappears from the argument not because no one is looking, but because the subject has been switched. They want attention focused on “birth tourism” rather than the extreme harm the policy change would have on babies.
Dehumanization and in-group/out-group framing. Attacks on immigrants have long been prevalent in our nation, despite the country being a nation of immigrants. Words like “aliens,” “cockroaches”, and “vermin” — language documented for decades as a hallmark of divisive rhetoric that has migrated into our politics and are prevalant again today. Once a person is coded as something other than a person, ordinary moral reasoning about harming them stops applying. Notice, too, what Schlichter’s own phrasing does beyond the slur: “just like you or me” only works as a jab if the reader already accepts that the pregnant mother (and her baby) are not, in fact, like you or me — a boundary line drawn between “us” and “them” in the same breath as the insult, which is exactly how in-group/out-group psychology recruits an audience into buying into “othering” rhethoric and division.
Appeals to fear and disgust. “Pops out with a placenta” reaches for disgust, a distinct moral lever from harm or fairness, meant to make a reader recoil rather than think. Alongside it runs a cruder fear: the notion, increasingly common in this discourse, that foreign countries are engaged in a conspiracy to use babies to undermine the nation — a demographic-invasion narrative with no basis in fact, closely related to the debunked “Great Replacement” conspiracy theory that has migrated from the political fringe into the White House. Fear and disgust work together: one says the immigrant family are repulsive, the other says they are dangerous.
Administrative burden as covert denial. A right can remain nominally intact while being made functionally inaccessible through paperwork, documentation requirements, and bureaucratic delay — exactly what this piece documented in Section VI, where every newborn, not just the children the executive order targeted, would have faced new hurdles to prove a status the Constitution says they already hold. Opponents are trying not to say “we are taking away your citizenship” or “we are about to impose complicated new paperwork and verification procedures on every baby born in this country”). But their goal is to make citizenship too burdensome or hard to obtain for the babies of immigrants.
Technocratic laundering. “Domicile,” “allegiance,” “subject to the jurisdiction thereof” are terms used to convert a moral question (“should a newborn be rendered stateless?”) into a technical one that allow a Justice to write 91 pages without ever writing the plain-English sentence his conclusion actually requires.
Strategic incremental harm. Schlichter’s own word, “chip away,” is itself a tell: an admission that a frontal assault on children’s citizenship would fail, so the strategy moves slowly enough to stay under the threshold that would trigger public sympathy for kids.
Again, none of these tactics are unique to this political debate. They recur across nearly every children’s policy fight this country has — Medicaid, child hunger, child care, public schools, the Child Tax Credit, and immigration. The campaign to reverse birthright citizenship will not be powered by a legal argument. It will run through these six communications tactics, deployed on repeat, until enough of the public stops seeing the baby too.
This is not just about invisibility. Invisibility is what much of the majority opinion does, and what this piece has spent most of its length examining. But this framing is seeking to shift the focus away from babies, to otherize and demonize the new target — immigrant pregnant women, and to distract from the true harm this will have on all babies born in this nation.
IX. One Vote
Returning to the vote count, six Supreme Court justices struck down Executive Order 14160. But the constitutional holding — the part of the decision that answers, permanently, what the Fourteenth Amendment actually means — commanded only five votes: Roberts, Sotomayor, Kagan, Barrett, and Jackson.
With the change of just one vote, the Citizenship Clause could now mean something very different. That is how close this country came to a regime in which a newborn’s citizenship depended on their proving facts about their parents that are, for a meaningful share of American births, unknowable in principle — not because the parents are hiding anything, but because the facts themselves do not exist in any form a bureaucracy or a court could ever retrieve.
The public must understand that every child – all 3.6 million born in this country – would have to apply for citizenship if birthright citizenship were undermined. And as Justice Jackson’s and Justice Barrett’s questions of the Solicitor General exposed, nobody can explain just how this might work.
The Supreme Court justices willing to gut birthright citizenship didn’t even really try because they did not even agree. Under Thomas and Alito’s tests, a difficult, retrospective, evidence-dependent inquiry would need to be resolved for every newborn, at the moment of birth, before her citizenship could be established at all. And because domicile and allegiance are conclusions drawn from evidence and intent rather than facts fixed at a point in time, a citizenship determination made today could, in principle, be reopened years or even generations later if new evidence about a parent’s — or a grandparent’s — intentions surfaced.
A citizenship that can be revisited “years or generations later by new evidence,” to borrow language from one summary of this argument, is nothing more than provisional and subject to revocation pending an investigation that never actually closes. That inverts the entire purpose the Citizenship Clause was written to serve, which was to settle the question of citizenship at birth, permanently, so that it would never again be a live political question a subsequent government could reopen and arbitrarily determine.
That is what one vote stood between clarity and the protection of children versus chaos and uncertainty. Consequently, the Supreme Court majority gave American babies a real win.
And yet, a case this explicitly about babies — about who counts as one of us from the first instant of life — should not require this much digging and excavation to find the child inside the reasoning. Advocates should not allow themselves to be dragged into debate’s over opponents’ framing, and should center children in the debate and the harm opponents are seeking to impact on babies.
Justices Jackson and Barrett saw the child. Roberts glimpsed it in a few places.
But for the most part, judicial blindness to children is real. Even when courts faithfully interpret the Constitution, judges often lose sight of the children whose rights are actually before them. And if we cannot clearly see babies in a case about babies, we should ask ourselves how often children disappear from the countless other legal and political debates that shape their lives.
As this battle moves back into the political sphere, advocates for children and families cannot rest. The judicial blindness in the opinions often works the same way in politics — by making the child disappear from the argument.
Opponents are already stepping up their rhetorical and legislative attacks on birthright citizenship, using the six tactics named above. Advocates must not let that happen again. Every hearing, every bill, every campaign ad has to put the baby back at the center, because no one else in this fight is going to do it for them.
The Court, by a narrow margin, got this right. Whether the country does is now up to the rest of us.
What You Can Do
You can call your member of Congress and senators to urge them to oppose any legislative effort — whether by constitutional amendment or legislation — to undermine birthright citizenship.
At First Focus Campaign for Children, we have no dedicated funding to engage in this fight. Our work on this issue comes from the support of individual donors such as yourself. If you are not already, we would appreciate your consideration of either becoming a paid subscriber to this newsletter or donating to our organization to keep up the fight to protect our babies and children from harm.