In a landmark decision with grave implications for the future of the nation, the U.S. Supreme Court on Tuesday struck down President Donald Trump’s efforts to terminate the practice of “birthright citizenship,” allowing the children of illegal immigrants and birth tourists to be declared citizens, obtain benefits, vote in American elections, and even run for president.

In Trump v. Barbara, a narrow majority of the Supreme Court held that the 14th Amendment confers U.S. citizenship on any child born in the U.S. regardless of whether the child’s parents are permanently or legally resident in the U.S. The 14th Amendment states, “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 controversy has arisen over the interpretation of the phrase “subject to the jurisdiction thereof…” The Trump administration argued that foreign nationals in the U.S. illegally or temporarily (i.e. on a temporary or nonimmigrant visa) are not subject to the jurisdiction of the U.S. and that their children, even if born on U.S. soil, are not U.S. citizens. The Supreme Court’s majority disagreed.

“The story of citizenship in the United States begins with the English common law. Before the Revolution, the American colonists — like all in the British Empire — were considered subjects of the sovereign,” Chief Justice John Roberts wrote in his opinion for the majority. “That arose not from royal fiat, but from what the common law conceived as the relationship between the sovereign and the people,” he continued. The sovereign, Roberts wrote, owed “a duty of ‘protection’” to those born within his dominions, and those born within the sovereign’s dominions subsequently owed a duty of allegiance or loyalty to the sovereign. “A foreign mother could enter the British Isles, give birth, and leave with her child the very next day, and that child would remain a British subject. Why? Because the child owed an implied allegiance to the sovereign who protected him at his birth,” Roberts argued. “For those children, and all others born in Britain, the rule was the same: With protection came allegiance, and with allegiance came the status of a natural-born subject.”

“This view crossed the Atlantic with the colonists” who founded the U.S., Roberts claimed, simply suggesting that British “subjects” in the colonies became American “citizens” once the colonies declared their independence from the British crown. He argued that the practice of awarding American citizenship to the children of foreigners was in place at the time of the American Revolution and continued on since then.

The 14th Amendment was enacted to correct the Supreme Court’s disastrous decision in Dred Scott v. Sandford, which held that the children of black slaves are not U.S. citizens. Roberts argued that the practice of denying citizenship to the children of slaves was an abrogation of the common law, leaving freed blacks in former slave states “strangers” in the U.S. Intended to “repudiate” the Dred Scott decision, the 14th Amendment’s Citizenship Clause “mirrored the common law’s criteria for citizenship,” the chief justice wrote. “Even putting the common law to one side, the Citizenship Clause’s key phrase — ‘subject to the jurisdiction’ — requires the same result.”

In short, because the children even of illegal immigrants in the U.S. and temporary visitors to the U.S. are born under the protection of American law, they are therefore “subject to the jurisdiction” of the U.S., Roberts concluded. “Citizenship, then and now, was the right to have rights — to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land,’” Roberts wrote. “We keep that promise today.” The chief justice was joined in his opinion by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson.

In comments shared with The Washington Stand, Andrew R. Arthur, resident fellow in law and policy at the Center for Immigration Studies, opined, “Overly simplistically, the majority concluded that the citizenship clause was to be interpreted under the English common law principles that the majority … had followed” in the case of United States v. Wong Kim Ark, which centered on whether or not the U.S.-born child of foreign nationals who were legal permanent residents in the U.S. was a U.S. citizen. The court’s majority, in Tuesday’s opinion, did not interpret the 14th Amendment under “the concepts of legal ‘domicile’ of the child’s parents that U.S. Solicitor General D. John Sauer was promoting at the oral argument and in his briefs.”

“The latter would have barred the children of ‘sojourners’ — nonimmigrants present here legally but temporarily — from citizenship, as well as the offspring of those here unlawfully,” Arthur explained. “Under the common law rule, however, only ‘children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory,’ plus those ‘born in the ‘alien nations’ of Indian tribes,’ were exempted…”

“The chief justice wants to get the federal courts out of politics, and deciding a contentious question like birthright citizenship based on ancient English common-law principles and a late 19th precedent was likely the safest way to achieve that goal (not that I am casting aspersions on the Court’s reasoning),” Arthur suggested. “Regardless of how the Supreme Court ultimately ruled in Barbara, however, the consequences of the decision were going to be political even if the way the justices decided it wasn’t.”

Arthur warned that the decision will likely prompt outrage from immigration hawks, who will urge faster and stronger enforcement of federal immigration law. “Expect enforcement advocates to light a fire under the administration to deport those here illegally before they can accrue what are referred to in immigration as ‘equities’ (more commonly known as ‘kids’),” he said. “Not only can U.S. citizen children petition for green cards for their parents once they become adults (the driving force behind so-called “birth tourism”), but such children are also considered ‘equities’ when the immigration courts weighing whether to grant relief in the exercise of discretion,” Arthur continued. “Given that most immigration applications … are discretionary, aliens unlawfully present or seeking a more permanent residence will now have an incentive to have as many children as possible, and the taxpayer will foot the bill for many of those births.”

“Consequently, expect a backlash to this opinion from immigration hawks, demanding that Trump’s [Department of Homeland Security] expand deportations of all of those here illegally to ‘beat the baby clock,’ and clamoring for tighter standards on nonimmigrant visas to ensure that as few foreign nationals are able to make it here exclusively to give birth to U.S. citizens,” Arthur continued. “With the border now historically secure, Trump’s immigration agenda largely hinges on deportations — an issue that just gained new salience with the Court’s last opinion of its term finding that all children born here, regardless of their parents’ status, are — with only narrow exceptions — U.S. citizens. Cue the backlash.”

Justice Brett Kavanaugh wrote his own opinion, concurring in part and dissenting in part. According to Kavanaugh, Trump’s executive order does not violate the 14th Amendment but does violate federal statutes in the Immigration and Nationality Act (INA), which he suggested Congress could revise to bring in line with the 14th Amendment to allow for the president’s executive order to take effect.

Justice Clarence Thomas, who rarely writes a dissent and keeps them brief when he does, authored a scathing 91-page dissent, joined by Justice Neil Gorsuch. “Both the Civil Rights Act and the Citizenship Clause guaranteed citizenship to persons born and domiciled in the United States regardless of their race. Neither guaranteed citizenship to persons who were not domiciled in the United States,” Thomas wrote, arguing that the majority had “repurposed” the 14th Amendment to reach its holding. “Blacks 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,” he continued. “The Citizenship Clause thus guaranteed them the ‘dignity and glory of American citizenship,’ so as to ensure that they would never be treated as second class under the law.”

“The same could not be said for the children of foreign temporary visitors. Foreign temporary visitors were attached to their home country, lacked similar bonds to this country, and would not be called upon in time of war. Americans, consistent with their settler ethos, believed that citizens were the people who called a place home,” the most senior member of the court stipulated. “When foreigners temporarily visited, their ‘national character’ was unchanged. Such visitors were ‘strangers,’ not ‘subjects.’ A person born here but domiciled in a foreign land was therefore considered ‘as much a stranger to the country as his father.’” (Internal citations omitted.)

Thomas wrote that the court’s majority relied on “a medieval English ‘feudal’ principle, according to which each person ‘owed personal service to the lord of the soil’ as his ‘master’ — a perpetual servitude that was ‘born with the child and only ended in the grave.’” He contended, however, that “the Court’s account is not historically accurate. The Court says that the Citizenship Clause incorporated the English feudal principle that subjects owed lifetime servitude to the King who owned the soil on which they were born, but Americans — unsurprisingly — rejected this feudal principle.”

The Supreme Court’s ruling “adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support,” Thomas asserted. “Because many potential applications of the President’s Order are consistent with the original public meaning of the Citizenship Clause, I respectfully dissent.”

Justice Samuel Alito, in his own dissent, wrote, “This is one of the most important decisions in the history of the Court, and in my judgment, the Court has made a serious mistake.” The majority’s decision, he observed, allows for birth tourism, whereby foreign nationals visit the U.S. solely for the purpose giving birth and obtaining U.S. citizenship for their children before returning to their home countries. “Careful analysis of the text of the Fourteenth Amendment and the process that led to its adoption shows that it does not degrade the concept of United States citizenship in this way. Instead, the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country,” Alito asserted. He noted that “[r]especting this interpretation would not require uprooting the millions of children who were born here to mothers who entered or remained in this country illegally,” since those children are “not responsible” for their immigration status. Instead, Alito laid the blame at the feet of their parents and a host of government officials and nongovernment organizations over the decades.

“United States citizenship is precious. Anyone who has attended a ceremony where citizens are naturalized can see that message on the faces of those who take the citizenship oath. Before saddling the Nation with a medieval rule, we had better be certain the Constitution requires it,” Alito wrote. He also rejected the majority’s common law interpretation, writing, “Every step of this story is incorrect. The Declaration of Independence repudiated the foundation on which the British rule was based.”

“The Court’s interpretation preserves a powerful incentive to enter or remain in this country illegally. Immigrants naturally prefer affluent countries where economic opportunities are available. Other than Canada, the United States will be the only affluent nation where birth alone is enough to establish citizenship,” Alito concluded. “If the Fourteenth Amendment required these results, the country would have to live with them or amend the Constitution. But the Fourteenth Amendment does not include the rule the Court now imposes on the country. In my judgment, the Court has made a mistake that will seriously affect the country’s future.”

A third dissent was penned by Justice Neil Gorsuch, who observed that the court was grappling with two differing interpretations of the 14th Amendment: one which treated citizenship as analogous to being a subject of a medieval kingdom and one which “adopted a distinctly American settler’s view of citizenship. One that promises the full ‘dignity and glory of American citizenship’ to any child born in this country to parents who have made this Nation their permanent home, regardless of their race, religion, or national origin.” The latter understanding “better accords with the Clause’s original public meaning,” Gorsuch contended. He concluded that, contrary to the majority’s holding, Trump’s executive order is not facially invalid.