A win for immigrants? Supreme Court ruling on citizenship creates new uncertainty

AS THE UNITED STATES marks the 250th anniversary of the signing of the Declaration of Independence, its immortal promise that “all men are created equal” and endowed with the unalienable rights to “life, liberty and the pursuit of happiness” has once again come under scrutiny. In a nation built by immigrants, the question is whether everyone born on American soil is equally entitled to those rights without the government’s interference.

On June 30, the US supreme court, in Trump v Barbara, reaffirmed the constitutional guarantee of birthright citizenship by a 6-3 majority, striking down President Donald Trump’s executive order denying citizenship to children born in the US to illegal immigrants and temporary visitors. The case turned on the fourteenth amendment, which declares: “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Writing for the majority, Chief Justice John Roberts relied on the Wong Kim Ark precedent, under which the 1898 ruling recognised citizenship for virtually all children born in the US, subject only to a few limited exceptions. He held that Trump’s order violated the fourteenth amendment and concluded that birthright citizenship can be altered only through a formal constitutional amendment.

The ruling brought immediate relief to immigrant families, including Indians. Yet Justice Brett Kavanaugh, while joining the majority, adopted a markedly different line of reasoning, which could prove to be a concern for even legal immigrants who are in the US on student visas or even job visas like H-1B. Though he ruled against Trump, he also pointed to a constitutional route through which Congress could amend the Immigration and Nationality Act, 1952, to achieve the very objective that the president had unsuccessfully pursued through executive action.

Kavanaugh, who was nominated by Trump during his first term, did not find anything in the fourteenth amendment that permanently barred restrictions on birthright citizenship. Instead, he held that the presidential order violated the Immigration and Nationality Act, 1952, which grants citizenship to children born in the United States irrespective of their parents’ immigration status. Significantly, both the fourteenth amendment and the Immigration and Nationality Act use the same language: “born in the United States... subject to the jurisdiction thereof.”

The second part of his opinion explains how the fourteenth amendment could nevertheless be interpreted to exclude children of illegal immigrants and temporary visitors. Unlike Justice Clarence Thomas, who favoured an originalist interpretation of the Constitution and supported Trump on the ground that the fourteenth amendment was intended only to guarantee citizenship to freed slaves, Kavanaugh subscribes to the theory of a Living Constitution. According to this theory, constitutional principles remain constant, but their application evolves to meet changing moral, social and technological conditions without requiring formal amendments. He explains the theory in his opinion:

“The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The original constitutional principles do not change absent a constitutional amendment, but the relevant principles—both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers. Stated otherwise, the meaning of rules is constant. Only their application to new situations presents a novelty.”

Kavanaugh points out that although Wong Kim Ark recognised citizenship by birth, it also identified four exceptions to the phrase “subject to the jurisdiction thereof”. These cover children (1) of foreign sovereigns or their ministers, (2) born on foreign public ships, (3) of enemies during a hostile occupation of part of American territory and (4) of members of Indian tribes.

According to Kavanaugh, these are not a closed set of exceptions. Congress may create new ones, provided they satisfy two conditions. First, they must arise from developments or circumstances that were largely unknown or unanticipated by the framers of the fourteenth amendment. Second, they must be relevantly similar to the four exceptions recognised in Wong Kim Ark. In his view, children born to illegal immigrants and temporary visitors satisfy both conditions. Therefore, nothing in the fourteenth amendment prohibits their exclusion. If Congress amends the Immigration and Nationality Act, 1952, or enacts a new law creating an exception for children born to foreign citizens who are unlawfully or temporarily present in the United States, such legislation would, according to Kavanaugh, pass constitutional muster.

The ingenuity of Kavanaugh’s opinion lies in shifting this highly sensitive political issue back to Congress. As noted earlier, the Immigration and Nationality Act, 1952, uses exactly the same language as the fourteenth amendment, and there was nothing to prevent him from reading the Wong Kim Ark exceptions into the Act and upholding the presidential order. Instead, by invoking the Living Constitution theory, he arrived at much the same result that an originalist interpretation could have achieved. The crux of his opinion is that this highly sensitive political issue is not within the province of the courts. It is for politicians, across party lines, to decide.

By avoiding the onerous route of a constitutional amendment, Kavanaugh has shown Trump a way to seek political consensus in Congress and amend the law. That would also require Trump to accept the constitutional limits on executive power. Going by the contrast between Trump’s reaction to the tariff judgment and his response to this ruling, it appears that Kavanaugh succeeded in teaching him one of the most important lessons of constitutionalism: the Constitution is a bulwark against authoritarianism. In that sense, Roberts may have won the case for immigrants, but Kavanaugh has shown Trump how to win the bigger battle.

The author is professor, BITS Law School, Mumbai.