National Review, July 2, 2026
The president was never going to win the birthright citizenship case. But what makes it, in Justice Samuel Alito’s words, “one of the most important decisions in the history of the Court” is that the ruling places the issue of membership in the national community beyond the reach of normal politics.
This is why some, such as Rachel Bovard and Daniel McCarthy, have likened the ruling to Roe v. Wade, which removed the abortion issue from the scope of lawmaking, with profound and distorting effects on our politics.
Even the Washington Post editorial board said the Court went too far in constitutionalizing virtually unrestricted citizenship at birth, supporting Justice Brett Kavanaugh’s approach of deciding the case on narrower statutory grounds and leaving the issue open to continued public debate, potentially allowing Congress to make changes in the future.
It’s true that the overheated reactions of some of those disappointed with the ruling are uncalled for. Justice Amy Coney Barrett is not a traitor, women’s suffrage shouldn’t be repealed, and civil war is not inevitable. The practice that is currently followed will simply continue.
It true too that there is much the administration and Congress can do to limit the harms of indiscriminate citizenship at birth. NR editors note that the case for mandatory E-Verify is strengthened by the ruling, as it remains the most important means of reducing the illegal population and, consequently, the number of children born to illegals. Over at the Daily Wire, I offered a number of other suggestions.
And it may be time for some out-of-the-box thinking. For instance, all adult U.S. citizens abroad have to file tax returns, whether they earned income in the U.S. or not, and all 18-year-old male citizens, wherever they’re living, have to register for the draft. The State Department should work with the IRS and the Selective Service System to identify noncompliance and offer the culprits the choice of compliance or renunciation of their paper citizenship.
We’re also going to have to rethink dual citizenship, which the Warren Court effectively constitutionalized in the Afroyim v. Rusk (1967) ruling.
But these are all work-arounds, as urgent as some may be on their own. The mass acquisition of citizenship by illegal infiltrators, tourists, students, and temporary workers is plainly not what the framers of the 14th Amendment had in mind, or what the court in Wong Kim Ark had in mind, or what Congress had in mind when it, in effect, enshrined the dicta from Wong into statute in 1940 and 1952.
Even if the Court had decided rightly — that the president’s executive order exceeded his authority, but that Congress retained the power to legislate on the issue — nothing would have changed in the short term because, at the very least, the Democrats would filibuster any legislation. But by removing the question from normal politics, the Court has created a new litmus test for future GOP judicial selections.
There’s no question that our current practice of simply accepting a birth certificate as proof of American citizenship simplifies things immensely. (Though it also means that the sole limitation on birthright citizenship that everyone acknowledges — that children born to foreign government officials with full diplomatic immunity are not citizens — is effectively meaningless, since these children get the same birth certificate as anyone else.) But, as Rusty Reno writes, “Plenary birthright citizenship is impossible to sustain in the twenty-first century.” The Court’s ruling this week means simply that changing the law will take longer and be more wrenching to the body politic than it would otherwise have to.
Like, y’know, the Dred Scott decision.