In Trump v. Barbara (the birthright citizenship case) pending before the U.S. Supreme Court, a significant concern is what would happen to people who thought they were U.S. citizens but perhaps really weren’t. The best answer is that that is a matter for Congress, which possesses the naturalization power. Some people don’t appreciate how vast the naturalization power actually is; it includes much more than the power you can see being exercised at swearing-in ceremonies. For example, it includes the power of collective naturalization by which whole categories of people can be made U.S. citizens automatically, without any oath or ceremony for any of them. The naturalization power also includes the power of retroactive naturalization, by which people can be made U.S. citizens as of any prior date selected by Congress (John Vahoplus has discussed this point in a different context).
Personally, I hope that the Supreme Court (SCOTUS) sticks to the original meaning of the Citizenship Clause without being swayed by consequences. Congress can handle the fallout, and should naturalize almost everyone who has long believed that they were U.S. citizens (“almost” because of stuff like this). If SCOTUS can get through the recent tariff case without discussing remedies, then it can get through the birthright case without discussing remedies. More generally, SCOTUS has properly decided many cases that have caused injustice (Prigg v. Pennsylvania comes to mind), but that doesn’t mean those cases were decided improperly. I don’t think that concern about ramifications should affect the outcome of the Barbara case, assuming the original meaning of the Constitution is clear, and I’ve written about why it is indeed clear (see here and here).
It’s worth mentioning that the government lawyers arguing Trump v. Barbara wrote:
Regardless, the President has accounted for reliance on the Executive Branch’s previous position by making the Citizenship Order prospective. See p. 7, supra. This Court sometimes determines that a legal ruling should apply purely prospectively. See, e.g., Office of the U.S. Trustee v. John Q. Hammons Fall 2006, LLC, 602 U.S. 487, 496 (2024); Barr v. AAPC, Inc., 591 U.S. 610, 634 n.12 (2020) (plurality opinion). For instance, in Sessions v. Morales-Santana, 582 U.S. 47 (2017), the Court invalidated a discriminatory citizenship statute only “prospectively,” to avoid taking citizenship from those who had relied on the statute. Id. at 77. The President has taken a similar approach here.
My co-blogger Mike Rappaport co-authored an article on this general subject, titled An Originalist Approach to Prospective Overruling. In view of the Wong Kim Ark case, maybe we’re talking now about prospective affirming instead of prospective overruling, given that that case required domicile for birthright citizenship. If the Supreme Court does not want to engage in any prospective-only ruling in this case, the fact remains that Congress can easily take care of the problem of reliance, as I explained above, assuming that there would be any problem at all.
In December, President Trump was asked the following question: “If the Court sides with you and ends birthright citizenship, are you going to try to take away citizenship from people who already have it here?” Here’s his full answer:
I … honestly, I haven’t thought of that, but I will tell you this, the case is very interesting because that case was meant for the babies of slaves. And if you look at the dates on the case, it was exactly having to do with the Civil War. That case was not meant from some rich person coming from another country, dropping … putting a foot in our country, and all of a sudden their whole family becomes, you know, United States citizens. That case is all about slaves, the babies of slaves, and it was a good reason for doing it. And that’s all it was about, and people now are understanding it. It’s been explained to ’em. And I think the court understands it, too. That would be a devastating decision if we lose that case. Because our country cannot afford to house tens of millions of people that came in through birthright citizenship. When that happened, that was meant for the … the babies of slaves, and if you look at the exact dates that it was passed, it all had to do with the Civil War and the ending of the Civil War. It’s that little period of time, and people now are starting to understand that.
So it looks like he might later supplement his executive order discussed above, with another one that’s not prospective-only. Although helping the freed slaves was definitely a motivating factor behind the Citizenship Clause, I don’t agree with Trump’s statement that the Citizenship Clause is only about freed slaves, because the language of the Citizenship Clause does not reflect such a limitation. But, the word “reside” at the end of the Citizenship Clause was widely understood as referring to people having U.S. domicile, and the Supreme Court ought to enforce that. Congress can fix any resulting injustices using its naturalization power.
Posted at 6:24 AM