I live in Orange County, a few miles from Irvine, where federal agents spent the better part of a decade tearing apart so-called maternity hotels: apartment complexes and gated houses where Chinese nationals paid handlers $40,000 to $80,000 to fly in, hide a pregnancy through customs, and deliver on American soil. The Justice Department indicted 19 people connected to the Irvine operations alone. I’ve watched the vans pull up in Woodbury and Cypress Village. The same calculation plays out at the border, where women time a crossing to a due date. None of this is theoretical to the people who live here. It’s the view from my driveway.
On Tuesday, the Supreme Court gave those traffickers a constitutional green light. In Trump v. Barbara, a 6-3 majority struck down the executive order that would have denied automatic citizenship to children born here to parents who are unlawfully present or here temporarily. Chief Justice John Roberts wrote for the majority, joined by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson. Justice Brett Kavanaugh concurred in the judgment on narrower statutory grounds. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented. Roberts held that children born here to parents unlawfully or temporarily present are “subject to the jurisdiction” of the United States from the moment of birth, full stop.
The majority grounded that holding in United States v. Wong Kim Ark, the 1898 decision I covered in this space two weeks before the ruling came down. Roberts rejected the administration’s central argument that the reasoning of Wong Kim Ark depended on the petitioner’s parents holding lawful permanent domicile and that the rule shouldn’t extend to parents without it. The court called that domicile theory unworkable, finding nothing in the historical record that ties citizenship to a domicile test Congress never wrote into the statute. It’s a clean opinion. It’s also wrong.
Alito’s dissent, joined by Thomas and Gorsuch, called it a “serious mistake.” The dissent’s argument tracks the one I made before the ruling. The men who wrote the 14th Amendment in 1866 were settling the citizenship of newly freed slaves, not anticipating a multimillion-dollar maternity tourism industry that didn’t exist when Sen. Jacob Howard introduced the clause on the floor of the 39th Congress. Sen. Lyman Trumbull, who wrote the statute the clause was meant to enforce, defined “subject to the jurisdiction” as owing allegiance to no other sovereign. An illegal border crossing isn’t an act of allegiance to the U.S. It’s a violation of the law.
I don’t think the majority’s reasoning survives that history, and I said so before the court ruled. The diplomatic immunity exception the founders carved out exists because a diplomat can’t be arrested or sued here. He’s outside the reach of American law by design. A woman who flies into LAX on a tourist visa with a due date circled on her calendar isn’t outside that reach. She’s fully inside it, subject to arrest, prosecution, and deportation like anyone else who breaks federal law. The majority’s holding doesn’t read the jurisdiction clause narrowly or broadly. It reads past it.
This isn’t an abstraction in Orange County. The Star Baby Care indictment alone named clients tied to Chinese state television, China Telecom, and the Bank of China, people whose government couldn’t buy them what an Irvine apartment and a hospital bracelet could: an American passport for their child, delivered at the moment of birth, no questions asked, now with the Supreme Court’s blessing.
SUPREME COURT STRIKES DOWN TRUMP’S BIRTHRIGHT CITIZENSHIP EXECUTIVE ORDER
President Donald Trump posted Tuesday that Congress should act through legislation rather than a constitutional amendment. I understand the appeal. The math doesn’t work. Congress already codified the citizenship clause in the Immigration and Nationality Act in 1952, and the court just ruled that the underlying constitutional text, not the statute, compels this result. A statute can’t override what five justices say the Constitution requires. If Trump v. Barbara is going to be undone, it gets undone the way the Constitution was built to be changed: by amendment, ratified by three-quarters of the states, the hard way the founders intended for a decision this permanent.
A nation that can’t control who its citizens are isn’t fully sovereign. The judiciary had its chance to read five words honestly and didn’t take it. Article 5 is still sitting there, waiting for a Congress willing to use it.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a BS from Northeastern University and has completed postgraduate studies at UCLA, UPENN, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.