During oral arguments in Trump v. Barbara, the birthplace citizenship case handed down from the Supreme Court on Tuesday, Solicitor General John Sauer observed that “we’re in a new world now … where 8 billion people are one plane ride away from having a child who’s a U.S. citizen.”
Four justices would go on to agree with this originalist argument, that the framers of the 14th Amendment did not understand their words to confer citizenship on the offspring of illegal aliens and birth tourists. But Chief Justice John Roberts dismissed Sauer’s point, retorting that while it may be “a new world, it’s the same Constitution.” He clearly thought it was a clever turn of phrase, an impression no doubt bolstered by the fawning media coverage of his remark. Released on Tuesday, his majority opinion takes the same approach to a foundational constitutional question as his cheap potshot at Sauer: he shows little interest in compelling originalist arguments, instead issuing shallow and misapplied but noble-sounding platitudes.
Joined by Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, Roberts declared that, if a pregnant foreigner travels to the United States — legally or illegally, for 20 years or 20 minutes — to give birth, the 14th Amendment demands that act be rewarded by granting the child the full privileges of American citizenship. At the center of his argument is an aspirational concept of “allegiance” he grounds in the practices of feudal Europe. Because British subjects “born within the dominions and under the protection of a particular sovereign” owed a “tie or duty” to that sovereign, Roberts reasons, the children of foreigners born on American soil must be bound by the same allegiance and thus demanded citizenship.
Ironically, Roberts’ decision to reward illegal immigration and birth tourism is the surest way to destroy the bonds of allegiance he claims inform his opinion. He uses the term “allegiance” 51 times, emphasizing the mutual duties that British sovereigns and subjects owed each other. But such an argument is irreconcilable with the practice he defends: allowing people with no practice or intention of “allegiance” to the United States to secure citizenship for their children.
Access to an American passport, elections, and government benefits is a lucrative end, and there is an entire industry built on shipping pregnant foreign nationals to the U.S. to secure such material benefits for their children. The Center for Immigration Studies estimated in 2020 that 33,000 women on tourist visas gave birth to U.S. citizen babies every year, in addition to hundreds of thousands of illegal immigrant mothers. In the last six years, those numbers have doubtless increased exponentially. Many of these women have no intention of keeping those children in the U.S., but rather return to their home countries and raise their children with the cultural and political loyalties of their origin nations. Illegal aliens may raise their children in America, but those children often maintain allegiance to their home countries. Even the children of legal immigrants sometimes feel a stronger loyalty to their parents’ country of origin, as in the case of American-born Olympian Eileen Gu, who has received millions of dollars from the Chinese Communist Party to represent China. Certainly, many new arrivals no longer feel a social obligation to adopt the language, culture, and shared heritage of the country they demand to enjoy.
Roberts doesn’t actually believe in the supremacy of “the tie created by birth” in England in 1688, because if he did, he would require immigrants to demonstrate it. His argument relies on a long Western tradition of mutual duty within a society, of sovereign nationhood and the sacred bonds that join its members. He rightly observes that such duty is “reciprocal.” But while demanding the United States obligate herself to every foreigner who trespasses within her borders, he refuses to require anything of the trespassers.
He explicitly rejects the suggestion that they must show even the basic allegiance demonstrated by being “domiciled” in the United States, as several of his fellow justices argue. He pretends to agree with the Trump administration that “citizenship turns on allegiance,” but proceeds to grant the former with no meaningful requirement of the latter. Refusing to acknowledge the reality of the “new world,” he has also butchered the conventions of the Old World.
The result of this one-sided obligation is giving citizenship to people like Montse Lewin, a self-described “digital creator” whose family is from Mexico. “We do not move to America because we think it’s a better country,” she explained to nearly 100,000 viewers on TikTok. “You’re stupid to think that we move to this country for some hot dogs and some baseball. We have better vibes, music, food, culture, history, literally all of the above. We just move here because we are looking to make more money.”
As Justice Clarence Thomas explains in his dissent, anyone with such foreign loyalties cannot supply the “allegiance” Roberts pretends to value. “Foreign temporary visitors were attached to their home country [and] lacked similar bonds to this country,” he writes. “Americans, consistent with their settler ethos, believed that citizens were the people who called a place home.”
A subject of the Chinese Communist Party who purchases a baby born to a surrogate mother in California and immediately ships the baby back to China has shown no allegiance to America, only an interest in exploiting her resources and generosity. Neither has a person who violates our immigration laws to financially enrich themselves or collect government handouts (which extend as far as taxpayer-funded transgender surgeries in Los Angeles). They and their dependents are not, in Thomas’ words, “permanent members of the body politic—the people whose roots were in a place, who called that place home, and who would, if necessary, go to war for that place.”
Nevertheless, Roberts demands they be treated that way, enjoying all of the benefits of citizenship with none of its obligations. He borrows the language of societies that understood that nationhood required a shared heritage, language, place, religion, and culture, and the sense of shared allegiance that followed naturally from it. In Barbara, Roberts strips away each of those tangible and intangible bonds that give the concept of “allegiance” meaning, all while claiming the same concept compels him to do so. Using the language of sovereign nationhood, he strikes at the heart of our national sovereignty.
