Roberts' Ruling A Triumph Of Politics Over The Law
Roberts' Ruling Is Contrary To The Constitution
As I observed when the Supreme Court issued its opinion in Trump v Barbara1, we only need to consider a single passage within the opinion to know that Chief Justice John Roberts, writing for the majority, got the Fourteenth Amendment, the Constitution, and the very essence of citizenship completely wrong.
No such intersovereign concerns apply to children born of parents unlawfully or temporarily present in the United States; no foreign sovereign would “have any motive for wishing” them outside this Nation’s authority. Ibid. Those children are thus subject to the jurisdiction of the United States. They satisfy both elements of the Citizenship Clause: they are “born . . . in the United States” and “subject to the jurisdiction thereof.” Under the Constitution, they are citizens at birth
Roberts is wrong.
Roberts is wrong on the history.
Roberts is wrong on the law.
Roberts is wrong on the Constitution.
This is what happens when judges let politics triumph over the law.
With nearly two hundred pages of rambling and functionally irrelevant dicta, Roberts sought to conceal that he was not ruling on the law but rather enacting his own views into law. The Roberts ruling in Trump v Barbara is the worst example of judicial activism in decades.
For the Chief Justice of the United States, that is an especially noxious judicial sin. Roberts completely cast aside the standard of judicial review laid down so eloquently by Chief Justice John Marshall over two centuries ago in Marbury v Madison2:
It is emphatically the duty of the Judicial Department to say what the law is.
It is not the duty of the courts to say what the law should be. Roberts forgot this, to his eternal shame and humiliation.
I have written at some length on the topic of birthright citizenship, most recently to defend President Trump’s Executive Order 14160. During President Trump’s first term of office, I contemplated what was then only a proposed Executive Order in light of the Court’s ruling in Wong Kim Ark3, until now the main pillar of judicial reasoning on the citizenship clause of the Fourteenth Amendment. I have also scrutinized how to read the phrase “subject to the jurisdiction.”
Unlike John Roberts, I based my analyses on the actual text and the actual history of the Fourteenth Amendment, and the legal principles upon which it is based. My writings on this topic stand, and I am quite confident they are a superior treatment of the issues than Roberts’ 194 pages of juridical posturing. I invite everyone to read them, critique them, and challenge me on them.
That John Roberts is wandering down the path of politics is immediately evident with the beginning of his rationalizations. After a brief and perfunctory recitation of the issues in the case, Roberts immediately jumps off the judicial reasoning train to drag the infamous but irrelevant case Dred Scott v Sandford4.
To understand the Citizenship Clause of the Fourteenth Amendment, it is first necessary to understand the context in which it arose—and the opinion of this Court, Dred Scott v. Sandford, 19 How. 393 (1857), that it rejected.
This is categorically false.
Dred Scott has no overlap with Trump v Barbara, not on the facts and not on the law.
President Trump’s Executive Order 141605 made no pretense that citizenship was derived from a person’s race or ethnic makeup. The Court was not asked to rule that citizenship was so derived.
Dred Scott has absolutely no legal relevance to the particulars of President Trump’s Executive Order. The only purpose dragging that infamous ruling into the present case is to confuse and conflate the issues, to argue—falsely—that there is some racial or ethnic animus behind EO 14160.
Rather than simply ruling on Trump’s EO, John Roberts decided to “settle” the question of birthright citizenship once and for all in a burst of hubris on par with Roger Taney’s infamous arrogance in issuing the indefensible Dred Scott v Sanford ruling which declared that black people could have no rights under the Constitution.
Taney’s effort to “settle” the question of slavery in the United States propelled the country down the path towards the Civil War. We should be gravely concerned that Roberts’ effort to “settle” the question of birthright citizenship may suffer a similarly ignominious fate.
Having thus gone to great lengths to muddy the legal waters of this case, Roberts then goes on to fundamentally misstate much of the history on citizenship within English common law upon which American common law is built. Justice Clarence Thomas repeatedly calls Roberts out for his errors of fact in his very excellent dissenting opinion6.
Most crucially, Roberts overlooks the crucial consensus within English sources that birthright citizenship does not attach when the parents are “alien enemies” in conflict with the host nation.
Wong Kim Ark explicitly acknowledged this:
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
Let me reiterate this point, as Roberts chooses to pretend it does not exist: children born of alien enemies in hostile occupation have never been considered to receive birthright citizenship.
The concept of the enemy alien is pivotal to the correct view of the Fourteenth Amendment, and we need to be clear on the meaning of the term7:
In customary international law, an enemy alien is any native, citizen, denizen or subject of any foreign nation or government with which a domestic nation or government is in conflict and who is liable to be apprehended, restrained, secured and removed.
As I have stated previously, any person who illegally enters any country clearly has a conflict with that country. The very act of illegal entry is a defiance of the laws of that country. That is conflict by definition.
In every sense of the term, an “illegal alien” is by definition also an “enemy alien”. That much is easily seen when one reviews the legal foundations behind President Trump’s use of the Alien Enemies Act to remove transnational gang members from the United States.
The Alien Enemies Act has been a fixture of US law for far longer than has the Fourteenth Amendment. Unlike the citizenship clause of the Fourteenth Amendment, the Alien Enemies Act is indisputably settled US law.
What makes Roberts’ legal confabulations in Trump v Barbara especially perplexing is that the Supreme Court upheld President Trump’s proclamation declaring the transnational gang Tren de Aragua a foreign terrorist group that had “invaded” the United States8. At the very least, the Supreme Court has already upheld the notion that “illegal aliens” can be declared “alien enemies”.
Remember, even under English common law antecedents, enemy aliens do not endow their offspring with birthright citizenship.
Further, even if one blanches at the thought of recognizing all illegal aliens as enemy aliens, the realities of lacking legal status still lead to the same end point that illegal aliens cannot endow their progeny with birthright citizenship.
As Clarence Thomas argues eloquently in his dissent, any person in this country on a transient, temporary basis is not domiciled in the United States, and so birthright citizenship cannot attach to their offspring.
The United States thus did not claim as a citizen every child born on its soil. Instead, pursuant to the principle that children followed their parents’ domicile, a child was a citizen of the place where his parents were domiciled. “[A] child born of foreign parents is not, on principles of natural reason, necessarily to be considered as a citizen of the country where he is born.” 1 Tucker 57 (emphasis deleted). If he was “born in the country,” but “both his parents were strangers not designing a permanent change of country,” then he was “as much a stranger to the country as his father.” Ibid. The rule was that “when a subject is traveling or sojourning abroad,” he “continues under the protection of ” his home nation, so “his children” are “an exception to the rule which makes the place of birth the test of citizenship.” Ludlam v. Ludlam, 31 Barb. 486, 503 (N. Y. Gen. Term 1860); see also 37 Annals of Cong. 599 (1820) (statement of Rep. Hemphill) (for “citizenship” to be “acquired by birth,” a child must be born to “parents belonging to no other nation or tribe”); Hardy v. De Leon, 5 Tex. 211, 236–237 (1849) (a child born on American soil to parents domiciled in the then-Republic of Texas was a citizen of Texas); Political Code of New York §5 (1860) (citizenship requires “domicil[e]” and excludes “children of transient aliens”).
Any illegal alien is by definition always at risk for immediate deportation from the United States. By definition every illegal alien is also a “transient alien”. Consequently they cannot claim to be domiciled in the United States and therefore they cannot endow their offspring with birthright citizenship.
We must remember that this was the clear and explicit understanding of the Senate during the original debate on the passage of the Fourteenth Amendment. The Senator who introduced the Amendment, Jacob Howard, made that absolutely clear:
I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion.
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.
This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of person.
Whether we view the illegal alien as an enemy alien, as has been explicitly done for transnational gang members, or as a transient alien, as Senator Howard clearly did in 1866, the end result is the same: no birthright citizenship accrues to their offspring.
In both perspectives, birthright citizenship for the children of illegal aliens is a clear Constitutional impossibility. It cannot happen, and it has never been understood to happen, not once in over three centuries of both English and American common law.
This is the irredeemable defect of Roberts nearly 200 pages of juridical pretense and posturing: he contorts and distorts clearly settled points of common law to impose a meaning on the citizenship clause of the Fourteenth Amendment that it does not have and has never been understood to have.
Roberts’ ruling is not the law according to the United States Constitution. Roberts’ ruling is the law according to John Roberts.
Earlier I cited Chief Justice John Marshall’s seminal quote from Marbury on the role of the courts. That John Roberts has so clearly abandoned this well established understanding of judicial review within American jurisprudence leaves us with an uncomfortable truth encapsulated by another quote from Marbury:
…the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
Just as the Congress and the Executive Branch are guided and constrained by the Constitution, so too are the courts. That was the explicit conclusion of Marbury.
If acts of Congress which are contrary to the Constitution are void on their face, if Presidential actions which are contrary to the Constitution are void on their face, then it must also be that court rulings—even those of the Supreme Court—which are contrary to the Constitution are void on their face.
There is no dispute to be had that Roberts’ ruling is contrary to the Constitution. There is thus no dispute to be had that Roberts ruling is void on its face.
Corporate media will pretend otherwise, and the popular narratives will present otherwise, but the fatal flaws of Roberts’ ruling mean that, by clear precedent and by the clear text of the Constitution, it cannot stand and it cannot overturn President Trump’s Executive Order.
Roberts’ ruling defines a political reality in which President Trump’s Executive Order 14160 has been overturned. The legal reality, which everyone will conveniently ignore, is that nothing has been overturned. Executive Order 14160 is still in full legal force. Birthright citizenship is still legally denied the children of illegal aliens.
Before a court ruling can enjoy the operative force of law, it must accurately and honestly state what the law is. That has been the standard for the American judiciary since John Marshall and Marbury v. Madison.
That is the standard Roberts abandoned with this ruling.
Instead of stating what the law is, John Roberts stated the law as he wished it would be. In so doing, he only managed to void his own ruling.
This is what happens when Supreme Court justices let politics triumph over the law.
Trump v. Barbara, 609 U.S. ___ (2026)
Marbury v. Madison, 5 U.S. 137 (1803)
United States v. Wong Kim Ark, 169 U.S. 649 (1898)
Dred Scott v. Sandford, 60 U.S. 393 (1856)
United States, Executive Office of the President [Donald Trump]. Executive Order 14160: Protecting the Meaning and Value of American Citizenship. 20 Jan 2025. Federal Register, vol. 90, no. 18, 29 Jan 2025. pp. 8449-8450. https://www.govinfo.gov/content/pkg/FR-2025-01-29/pdf/2025-02007.pdf
Trump v. Barbara, 609 U.S. ___ (2026) (Thomas, J., dissenting)
“Enemy alien.” Collins Dictionary of Law. 2006. W.J. Stewart 22 Jan. 2025 https://legal-dictionary.thefreedictionary.com/Enemy+alien
Trump v. J. G. G., 604 U.S. ___ (2025)
Excellent. Now if Trump will issue another EO we will be home free!
I’m still unclear on exactly what this ruling did. Did it abolish even the exceptions carved out in Wong Kim Ark? We need a more detail forensic analysis.