Roberts saved birthright citizenship, ducked the real danger | Opinion

Chief Justice John Roberts' legal reasoning in the birthright citizenship case is careful and narrow. But it misses the bigger point: The 14th Amendment was written to prevent a permanent underclass in America.

President Donald Trump's claim that American-born children of undocumented immigrants have no right to citizenship would have created exactly the evil the amendment was meant to prevent. But the citizenship clause alone doesn't solve that evil. Trump has already built an oppressed class: millions of undocumented immigrants who work and raise families here while living in fear of being sent to countries many of them barely know.

The 14th Amendment overruled Dred Scott v. Sandford, the 1857 case in which the Supreme Court ruled that Black Americans could not be citizens of the United States. The framers, the nation's highest court declared, regarded Black people as "a subordinate and inferior class of beings" who "had no rights or privileges but such as those who held the power and the government might choose to grant them."

After the Civil War, the 13th Amendment abolished slavery but did not make former slaves citizens. Legislatures in the former Confederacy, still controlled by White politicians, wrote laws that recreated many of slavery's legal restrictions. The 14th Amendment was meant to stop that. Its language is plain: "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 14th Amendment forbids what the Scott ruling tried to create: a hereditary, inferior caste of people born on American soil.

What Trump's executive order would have done

The stakes in this case were high. Nearly 10% of U.S. births, roughly 260,000 a year, are to undocumented or temporary legal immigrants.

Trump's executive order would have denied citizenship only to children born after Feb. 20, 2025, but if the Supreme Court had rejected birthright citizenship, millions more people already living here would have been at risk.

Opinion: Birthright citizenship has real problems. Trump was still wrong.

Justice Samuel Alito worried about "birth tourists," women who come to the United States solely to give birth and then return home. They barely exist. One estimate puts the number at about 9,000 a year; another, fewer than 2,000. But they are right that birth is an arbitrary line to draw. It only makes sense as a step toward a larger goal: a society of equals.

Roberts is a careful lawyer. He closely parsed the public meaning of the citizenship clause as attorneys of the era would have understood it.

Under English common law, the chief justice wrote, children "born within the (sovereign's) dominions" owed a natural "allegiance" to the sovereign who protected them at birth, and the citizenship clause made clear that this same principle applied to the newly freed slaves. He briskly demolished counterarguments.

The forced separation of families

But the citizenship clause means more than its narrow legal reading. It offers an inspiring vision of an America where everyone here is a full member of the community.

Despite the court's decision, Trump is betraying that vision.

Another view: Want more patriotism? Look to birthright citizens like me.

His policies reproduce one of the cruelest features of pre-Civil War slavery ‒ the forced separation of families:

Immigration and Customs Enforcement is holding about 60,000 people, 70% of whom have no criminal record.

About 14 million undocumented immigrants live in the United States, roughly half of them for at least 10 years.

More than 5 million U.S.-born children live in households with at least one undocumented parent, including 1.8 million living with two.

An estimated145,000 U.S. citizen children have had a parent detained, and more than 22,000 of them have lost both parents.

The administration is also targeting "Dreamers," roughly half a million people who were brought to the United States illegally as children and, until now, have had protected status under the Deferred Action for Childhood Arrivals (DACA) program. It is cutting off their benefits and pressuring them to leave the country. Their work permits are being slow-walked, leaving them stuck in bureaucratic limbo.

From the president's second inauguration in January 2025 through September, ICE detained more than 270 DACA recipients and deported 174.

Juan Chavez Velasco, 35, was brought to the United States from Colombia when he was 8. ICE detained him while he was on his way to a hospital, carrying breast milk for his premature infant daughter. He had renewed his status regularly, but his most recent application sat unprocessed. His status expired while he was in custody, and he was held for nearly three months. His case is one of many reports of what appear to be random arrests of Dreamers.

Protests outside Supreme Court as birthright fight reaches justices

What about undocumented immigrants not born in America?

The Supreme Court's decision does not help these people, because they were not born here.

Justice Clarence Thomas, dissenting, argued that the citizenship clause was never meant to apply to people who "were attached to their home country" and "lacked similar bonds to this country."

Black Americans, Thomas wrote, "were entitled to citizenship because they were Americans. They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority."

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But the people Trump is pursuing are not attached to any country but this one. Many speak only English. They have nowhere else to go. They were not born here, but they have become Americans in every way that matters.

Former President Barack Obama understood this. His administration focused immigration enforcement on criminals and recent border crossers.

President Trump has abandoned that distinction. Millions of our neighbors now live with the threat of losing everything they've built here.

Andrew Koppelman, the John Paul Stevens Professor of Law at Northwestern University, is the author of "Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed." Follow him on Bluesky: @andrewkoppelman.bsky.social

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This article originally appeared on USA TODAY: Roberts saved birthright citizenship, ducked the real danger | Opinion