The Supreme Court ruled five-to-four in Trump v. Barbara that the Fourteenth Amendment’s citizenship clause guarantees birthright citizenship to virtually all children born on American soil, with Chief Justice Roberts writing for the majority. President Trump, speaking in North Dakota, said the court got it wrong but expressed relative equanimity, noting that the amendment was meant for the babies of slaves, not rich people from China arriving on Gulfstreams. Governor DeSantis offered a similar historical analysis, saying the amendment was designed to overturn Dred Scott and was never conceived to apply to birth tourism or the children of people who entered the country illegally.
Randy Barnett, Georgetown law professor and author of Felony Review: Tales of True Crime and Corruption in Chicago, joined Dan Proft on Chicago’s Morning Answer to explain why the five-to-four margin is actually the most significant aspect of the decision and why the ruling is far more vulnerable to future reversal than the immediate reaction suggests.
Barnett said his own journey on this question is illustrative of how fast the intellectual landscape has shifted. As recently as eighteen months ago, he accepted the conventional wisdom that birthright citizenship was settled constitutional law and found the arguments against it unpersuasive. What changed his mind was scholarship from Ilan Wurman at the University of Minnesota and Kurt Lash at the University of Richmond, work that called the conventional reading into serious question. He co-authored an op-ed in the New York Times with Wurman saying Trump had a stronger argument than people were giving him credit for, though they were still tentative at that point. By the time he published a Wall Street Journal op-ed the day before oral arguments, he had become fully persuaded that the revisionist case is the strongest case. He said the power of the dissenting opinions by Justices Thomas, Alito, and Gorsuch only confirmed that assessment.
What makes the five-to-four margin astonishing, Barnett said, is that courts simply do not move this fast. The scholarship that challenged the conventional wisdom on birthright citizenship essentially all emerged within the last year to eighteen months. A year and a half ago, an eight-to-one or seven-to-two decision upholding birthright citizenship would have been the expected outcome. The fact that four justices were persuaded by brand-new scholarship to overturn what had been treated as settled understanding for over a century means the decision is inherently vulnerable. A change in personnel or a change in circumstances could produce reversal, following the same trajectory as other terrible Supreme Court decisions that required decades to correct: Dred Scott overturned by the anti-slavery amendments, Plessy v. Ferguson overturned by Brown, Roe overturned by Dobbs.
On Amy Coney Barrett joining the Roberts majority without writing separately, Barnett said he could not speculate about her reasoning since she left no written explanation. He pushed back against the characterization of Barrett as a reliable disappointment, citing a list compiled by commentator Erick Erickson documenting her record, which he said shows her to be a terrific pick who has been strong on restoring the original meaning of the Constitution in numerous five-to-four decisions, even though she will occasionally disappoint because she is an independent mind.
Barnett raised a point he said he considers potentially significant in hindsight: if the executive order had been limited to birthright tourism rather than also covering children of long-term illegal residents, the outcome might have been different. He noted that during oral arguments, Chief Justice Roberts expressed genuine astonishment at the birthright tourism phenomenon, where wealthy foreign nationals fly to the United States specifically to give birth and establish citizenship for their children before returning home. Barnett said the solicitor general did not follow up on that opening effectively, and he genuinely wonders whether a narrower challenge focused exclusively on birth tourism could have flipped Roberts or Barrett. He noted that Justice Thomas’s dissent, which was grounded in the concept of domicile, was primarily aimed at birthright tourism rather than the harder case of people who have been in the country for decades and demonstrated intent to remain permanently.
On what disappointed conservatives should focus on going forward, Barnett made two points he said are more important than the birthright decision itself. First, the existing immigration laws already favor the administration’s enforcement posture. The problem has never been that Congress needed to pass new legislation. The problem has been that existing law has not been enforced, with various forces operating for twenty to thirty years to prevent enforcement. He said the standard advice from opponents, go to Congress and pass a new law, should be turned on its head: the law is already what it should be, and the people who want it changed should be the ones going to Congress.
Second, the Supreme Court’s overall term has been significantly favorable to the administration’s enforcement agenda, including decisions on executive authority over personnel in the Slaughter case, temporary protected status designations, voting rights, and numerous reversals of lower court injunctions that had been blocking presidential action. He said the district courts below have been engaging in what amounts to civil disobedience, and the Supreme Court has been slowly but surely disciplining them and restoring presidential discretion to enforce existing law. He said the birthright citizenship decision is disappointing but should be viewed in the context of a term that moved substantially toward restoring the originalist meaning of the Constitution across multiple dimensions.
On the fraud enforcement angle, Barnett said the Department of Justice’s reported interest in pursuing birthright tourism participants as fraudsters is a viable approach that does not require any change in the Supreme Court’s holding. He also praised the administration’s broader anti-fraud task force, headed by Vice President Vance, saying it has produced enormous results in identifying systematic nationwide fraud in federal benefit programs, contradicting the longstanding assumption that waste, fraud, and abuse are too diffuse to meaningfully impact the federal budget.