What in the World Did Brett Kavanaugh Write on Birthright Citizenship?

His 10-page opinion is strangely adrift from rhyme or reason, and it ends up reinforcing a far more extreme position than any of his colleagues’.

The Supreme Court’s ruling this week on birthright citizenship in Trump v. Barbara totaled approximately 194 pages. I wrote earlier this week about the various positions that each of the justices took. But it is worth dwelling for an extra moment on the unusual position taken by Justice Brett Kavanaugh in just 10 strange pages.

Unlike the rest of his colleagues, Kavanaugh took the position that Trump’s executive order was constitutionally permissible but statutorily illegal. In other words, the Fourteenth Amendment’s citizenship clause did not block Trump’s effort to curtail birthright citizenship, but an act of Congress that used identical language did.

At a very superficial level, this might sound sensible and moderate by implicitly inviting Congress to address the situation. Kavanaugh certainly positions the opinion—and himself—as such. On closer inspection, it might be the most dangerous and extreme view of U.S. citizenship to be articulated by the justices this week.

To understand Kavanaugh’s position, a brief sketch of the other justices’ views is necessary. Last January, Trump issued an executive order that instructed federal agencies to not recognize the U.S. citizenship of children whose parents were undocumented immigrants or living in the United States on temporary visas. A group of plaintiffs sued, arguing that this violated the Fourteenth Amendment’s citizenship clause.

That clause reads as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In the 1898 case United States v. Wong Kim Ark, the Supreme Court ruled that the son of two Chinese immigrants in San Francisco had acquired U.S. citizenship at birth solely by virtue of being born on American soil. The “subject to the jurisdiction” exception was narrowed to a handful of situations that rarely apply today.

In Tuesday’s ruling in Barbara, the justices essentially took four separate positions. Five of them took what can be described as the consensus view. Americans had inherited the rule of birthright citizenship from the English common law, Chief Justice John Roberts explained in his majority opinion. Dred Scott v. Sandford’s holding that people of African descent were ineligible for U.S. citizenship was a violation of that rule, and the Fourteenth Amendment’s citizenship clause restored and entrenched the original understanding.

Two of Roberts’s fellow conservatives, Justices Clarence Thomas and Neil Gorsuch, took a different view. Thomas affirmed Wong Kim Ark as correct but argued a person’s domicile status—or, more specifically, that of their parents—also determined whether that person had U.S. citizenship at birth. Since Trump’s executive order was lawful in at least some circumstances, like birth tourism, the two justices rejected the facial challenge to its constitutionality.

At the same time, both justices signaled that even if their domicile-focused view had prevailed, it would not grant total victory to the Trump administration. Thomas and Gorsuch concluded that children of temporary visa holders would not be eligible, and their respective dissents largely........

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