A very interesting video and transcript. Sai's summary from the end (though of course it's just a summary, and the analysis is elsewhere in the transcript and in Sai's articles on the subject).
I think the founders wanted to create a strong executive—not all-powerful, but strong.
And they wanted someone in charge of law execution. I think that's the principal function of the executive, not rulemaking and not acting as a substitute court.
And they had examples of plural executives in the states, and they eschewed them.
So I think the Court got it right….
I … think the country is better off having a president in charge of law execution rather than having a bunch of people independently doing it.
Having said that, we do have states where we have plural executives, and it's not as if people think they're dysfunctional.
But I think there are advantages to executive unity, particularly when it comes to law execution.
I recently took my young children to the public library for an early celebration of America's 250th Birthday. Perhaps naively, I expected a patriotic gathering that would help my kids feel proud of America. No such luck. During story time, the librarian could have selected any children's book about American history, independence, or what made America exceptional. Instead, she chose a book that spent every page talking about immigrants coming to America. The second page depicted Africans in chains being transported against their will on boats to the United States. Then every subsequent page repeated that maxim that people were allowed to come to America without regard to their race, gender, or religion. One page showed political refugees from the war-torn Middle East. Another page showed migrant workers from Mexico. And so on. I doubt any of the young children had the slightest clue what the book was trying to convey. But the kindly librarian thought this book was not only appropriate for an America 250 celebration but was important for toddlers to learn from.
The library also featured a shelf highlighting books with immigration themes. I randomly pulled a book that was in both English and Spanish. It relays the experience of being a migrant child. The book depicts a family in Mexico living on a farm. There are two children, and the mother is visibly pregnant. The father says, "Pack your bags. We're going to the States to have a better life." For the children, the only thing needed to enter the United States was a desire for a better life. The next page depicts the children riding in a car without their mother and father. The caption reads, "We traveled north by bus and car. Some people had to help us cross the international bridge." I presume this was a way to teach young children about coyotes and smugglers. The following page shows the family reunited in Los Angeles, with the mother having now given birth. Birthright citizenship in action. The imagery and messaging were very deliberate.
The upshot of both books was clear: America is a sinful nation for slavery, but what makes America great is admitting aliens from the poorest and most dangerous countries in the world. Mind you, this event was intended for children as young as three years old. There are many salacious reports about "Drag Queen Story Time," while "Immigration Indoctrination Story Time" flies under the radar. This sort of thing happens in every library and school across the country. Were parents really expected to explain slavery in chains to toddlers who are tethered by backpack-leashes? Should parents discuss what it means to exclude people on the basis of race, gender, and religion? Did the librarian anticipate that one of the dads in the room was a law professor who could recount how our immigration laws were entirely based on race for much of American history?
And the conclusion:
Liberal asymmetries are difficult to break. They are so deeply embedded in every facet of our institutions that those in the conservative legal movement refused to acknowledge their existence. Story time at the library is an early opportunity for indoctrination. The first step to equalize asymmetries is to address them candidly and move past arguments that shut down the debate. Next time I'll do more than quietly leave Story Time. Other parents should do so as well.
I am happy to pass along this impressive volume from my friends at the Civitas Institute:
The contributors have strived to evaluate the Declaration in its entirety, a document whose excellence serves as the foundation of American political life. We also recognize that the legacy and principles of the Declaration are being questioned in this, the two-hundred-and-fiftieth anniversary year. What the reader should understand is that the authors featured in this volume are not in doubt about the principles of the Declaration and their meaning for American citizens and politics. With essays on the Declaration's teachings on natural rights, freedom, anthropology, natural theology, legal standing, revolutionary principles, civic virtue, executive power, biblical religion, foreign policy, and notably its influence on our culture and memory, we hope that you, the reader, will deepen your understanding of the Declaration and develop greater devotion to this remarkable country we have been called to uphold and cherish.
In this light, the Civitas Institute at the University of Texas at Austin presents this volume to the reader, featuring essays by 25 scholars examining all aspects of the Declaration of Independence. A large majority of contributors teach in the newly established centers and schools of civic thought and education that now inhabit major universities across the country, deepening public instruction for students, ensuring that a richer set of ideas circulates on campus, and inevitably improving higher education in America. This volume will contribute to those efforts. The Civitas Institute is grateful to all who have skillfully shaped this collection of essays.
The Utah Legislature opens its legislative sessions to the public so that its constituents may observe the state's lawmaking process. The Legislature also grants additional access to professional journalists through what it calls its Capitol Media Access and Credentialing Policy. Beyond what the Legislature affords the public, credentialed journalists receive perks such as entry to a press room and secure areas of the Capitol, use of designated media workspaces in the Senate and House galleries, and access to media availabilities and press events with elected officials. To be eligible for a credential, a journalist must be "part of an established reputable news organization" and "[a]dhere to a professional code of ethics." The policy categorically excludes journalists associated with "[b]logs, independent media or other freelance media" from receiving a credential.
Bryan Schott is a journalist who covered the state house for more than twenty-five years on behalf of various institutional media companies, including Salt Lake City's most prominent newspaper. The Legislature granted media credentials to Schott each year that he worked for these companies. But in 2025, after Schott left the newspaper and started his own independent news organization—Utah Political Watch—while continuing to report on state politics and legislature matters, the Legislature denied his credential application.
The court allowed Schott's case to go forward, concluding that "he plausibly alleged that the Legislature denied his application because of his news stories' viewpoints":
The Fifth Edition of the Barnett/Blackman casebook will be published circa December 2026 for adoption in the Spring 2027 semester. We worked out an arrangement with our publisher to finalize several chapters immediately after the term ends.
First, we are incorporating Hemani and Wolford into the Second Amendment chapter. We already shortened Heller, and the excerpt from Bruen will likely shrink. It is regrettable the Court will not decide the AR-15 case until our book is in print.
The chapter on sex discrimination was waiting for B.P.J.v. West Virginia. That case follows neatly from Skrmetti and Mahmoud. Indeed, Frontiero and Craig v. Boren seem quaint and a bit outdated.
We are still figuring out exactly how to use the birthright citizenship case. It doesn't neatly fit in any existing chapter. Maybe we just add it to the end of the chapter on the Reconstruction Amendments?
Finally, Trump v. Slaughter will drastically change the separation of powers chapter. We did not include Meyers or Humphrey's Executor. I don't see much reason to add either case now. Our excerpt of Seila Law probably drops altogether. It was just a pit stop on the Chief's "long game." Our excerpt of Morrison v. Olson will shrink, with most of the cuts coming from Rehnquist's majority opinion. The Scalia dissent will remain.
For those interested, I've finished editing Slaughter. You can download the file here. The 108 page opinion is reduced to about 31 pages. These sorts of cuts are always tough, and your mileage may vary. Next up, B.P.J., and then Barbara.
Chief Justice John Roberts wrote the most consequential and important majority opinion of his tenure as Chief Justice today in Trump v. Slaughter. In a 6 to 3 decision, the Supreme Court correctly overruled its 91-year-old precedent in Humphrey's Executor v. United States (1935), consigning that erroneous nine-page opinion to the ashbin of history. I had argued for this outcome in an amicus brief co-signed with Attorneys General Ed Meese and Michael Mukasey that sets out our thoughts on the case in far more detail than I am going to discuss in this blog post.
The highlights of Chief Justice Roberts' opinion:
It cleanly overruled the dreadful Humphrey's Executor opinion instead of obliquely distinguishing it out existence, as the Court has done with some other flat-out wrong precedents like Flast v. Cohen.
It was a triumph of originalism and textualism over the so-called pragmatism offered by the three dissenters.
It correctly read the Vesting Clause of Article II as a grant of the removal power and of the power to execute the law rather than as being a mere designation of the President's title as some have argued.
It rightly endorsed Chief Justice William Howard Taft's account of the Decision of 1789 in Myers v. United States—an opinion in which Taft correctly argued that the Decision of 1789 stood as an endorsement by the First Congress of the theory of the unitary executive.
It made clear that the President must control all exercises of the executive power—a conclusion that causes me to hope that today's holding will also control the removal of inferior officers and employees exercising executive power, even if they were appointed by the Head of a Department.
It recognized that our first seven presidents, George Washington, John Adams, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams, and Andrew Jackson, had all been believers in the theory of the unitary executive, by which I mean only that the President has the power to remove at will anyone who is exercising executive power.
It construed the Opinion in Writing Clause correctly as an aid to the president's power to control the executive branch and not as marking the outer limit of the President's power over the executive branch.
It correctly dismissed the argument that the so-called Sinking Fund Commission established in 1790 showed the President lacks unlimited removal power because the President could always terminate the power of the Chief Justice and the Vice President to act on the Sinking Fund even though the President cannot fire the Chief Justice and the Vice President from their day jobs.
It discussed Morrison v. Olson (1988) in a fashion that renders that erroneous opinion just as dead as is Humphrey's Executor.
It made clear that the President needs to have an unlimited power to remove at will principal and superior officers who are exercising executive power.
(Roberts' opinion also began nicely with citations to the legendary historian Gordon S. Wood, who tragically died in a traffic accident on June 5, 2026, at the age of 92, and who did so much to shed light on the original understanding of the Framers of the Constitution.)
One of the perks of seniority the power to assign opinions. But with Chief Justice Roberts being in the majority more than 90% of the time, there are few opinions assigned by Justice Thomas or anyone else. Justice Sotomayor, who is number four in terms of seniority, has only assigned a handful of majority opinions. Since Justice Breyer's retirement, Justice Sotomayor now has the power to assign the dissents in cases that split 6-3. This term, Sotomayor made a number of such authorships. Who did she pick?
Justice Sotomayor kept the dissents for herself in West Virginia v.B.P.J., Trump v. Slaughter, and Allen v. Milligan.
Justice Sotomayor assigned the dissents to Justice Kagan in Mullin v. Doe, NRSC v. FEC, Wolford v. Lopez, Exxon Mobile v. Climex, and Louisiana v.Callais.
Justice Sotomayor assigned the dissent to Justice Jackson in Mullin v. Al Otro Lado, Landor v. Louisiana Department of Corrections, and Blanch v. Lau.
(Let me know if I missed any.)
It strikes me as odd that Justice Kagan did not write the Slaughter dissent. Justice Kagan's dissent in Seila Law is probably her most important opinion of all time. Sotomayor's Slaughter dissent repeatedly calls back to Seila Law.Slaughter and NRSC were both argued in December. Sotomayor made the choice to keep Slaughter for herself and giving Kagan NRSC.
I would have loved to read a Kagan dissent in Slaughter. Sotomayor's dissent was, well, lacking in punch. I often write about the best writers on the Court, but I usually don't rank the bottom of the pack. Breezing through a witty Kagan dissent is a joy. Slogging through a dense Sotomayor dissent feels like a chore.
Nina Totenberg, to her credit, took all the blame for the Alito retirement story. She also offered a sincere apology, which I respect. Still, her error is inexplicable. Here is how the NPR Public Editor described the incident:
Totenberg was reporting on the final day of the Supreme Court session on Tuesday. As she was leaving the court, Chief Justice John Roberts was announcing upcoming retirements. Totenberg wondered why everyone else wasn't leaving and asked someone outside the court. According to her interview that same day on All Things Considered, Totenberg asked a bystander what was going on, and the person replied "retirement announcements." But Totenberg heard the reply in the singular, "announcement, " and assumed it was the notice that Alito was retiring.
Let me set the stage a bit. On the last day of each term, after all the opinions are announced, the Chief Justice announces retirements of Court employees. But it is not the practice for a Justice to announce his or retirement on the last day. I think the last person to do that was Justice Thurgood Marshall, as Totenberg reported in 1991.
There was no conceivable way that Justice Alito would let the Chief Justice make that announcement from the bench, with no advance warning, with all the public present. Alito is extremely introverted. If he retired, it would be done quietly, outside the gaze of Totenberg and her colleagues. Yet Totenberg thought that a court employee meant to signal there was one singular retirement as a way of saying Alito was stepping down? As if Totenberg was getting a secret signal? That story does not plausibly pass the smell test.
NPR Executive Editor Krishnadev Calamur believed Nina because of her legendary status:
"She's the preeminent Supreme Court reporter in the courtroom," Calamur said. "So I'm assuming that's what she heard. … She's in the room. It's like when we report opinions. I'm not waiting to see what the Times is reporting. It's when Nina says, here's what happened, and we do it. That's the trust you build up."
But does Totenberg deserve that trust? The Alito incident is just the latest in a string of questionable judgments Totenberg has made in recent years.
I'll start with an incident that I partially reported on, indirectly. By chance, I was in the Court for Justice Kennedy's final day on the Court in 2018. I wrote about that experience in National Review. I noted that one of the first clues was when Kennedy's family walked into the Court.
But then everything changed. Mary Kennedy, Justice Kennedy's wife walked into the room. Justice Kennedy was not expected to issue any more opinions, so her presence was a mystery. She was followed by (what looked like) her children and grandchildren, who took their seats in the reserved seat section. At that point, it became obvious that the entire Kennedy clan was in attendance. One of the members of the press section released an excited utterance: "Oh, f***!" The other reporters tried to figure out whether the guests were in fact Kennedy's family members. No one quite knew for sure. But there was no more time to think about it.
The reporter who said "Oh, fuck!" was none other than Nina Totenberg. I was sitting on the left side of the bar section, which was adjacent to the press box. I didn't feel the need to name Totenberg at the time, but I think it is now appropriate. I also didn't publish her follow-up comment, which was something to the effect of "How could he do this to us?" The message was clear--how could Kennedy let Trump replace him. There was never any doubt about which team Totenberg was on. She was exhibiting public disappointment in Kennedy's retirement. Reporters are supposed to maintain some sense of neutrality in public, but Totenberg didn't even try. Totenberg is known to make other inappropriate comments while sitting in the press box, including about me. When the bar section is filled to capacity, there are many lawyers in earshot of the press box.
In any event, this incident from 2018 reveals that Totenberg knows the usual routine of how Justice retirements are announced, which makes her story even more inexplicable.
There's more. Totenberg kept her decades-long friendship with Justice Ginsburg secret, even though she interviewed and wrote about RBG often. Totenberg reported that Justice Sotomayor asked Justice Gorsuch to wear a mask, and he refused. The Chief Justice, and Justices Gorsuch and Sotomayor, put out a statements saying the reporting was "false," but Totenberg stood by her story. On the day Justice Gorsuch's confirmation hearing began, Totenberg released what was supposed to be a bombshell story about students in Gorsuch's class. Within a few hours, the story fell apart, as Gorsuch disputed teh allegations, and another "Editor's Note" was added. I could go on.
Has any Supreme Court reporter made so many major errors in reporting that required corrections or "clarifications"? Has any member of the Supreme Court press corp made a single error of this magnitude and kept their job?
At some point, this long string of questionable judgments adds up to a conclusion: with Totenberg, trust but verify.
This morning, I received an invitation to go on AirTalk, a Los Angeles NPR show, to discuss West Virginia v. B.P.J. I was somewhat hesitant, as I knew this would not be a friendly forum. Still, I agred. I've gone on Larry Mantle's show many times over the years, and have always found him to be a fair host. The other guest would be Jennifer C. Pizer, Chief Legal Officer and Eden/Rushing Chair for Lambda Legal. Pizer was counsel in B.P.J.
The interview was surreal. I felt like I was on the other side of the looking glass. Much of the discussion turned on my use of the term "biological male." I encourage you to listen to the entire exchange, though for those who prefer to read, I've included excerpts from the transcript below. I add some brief comments at the end.
On June 30, the Supreme Court granted cert in two cases involving prohibitions on semiautomatic rifles. In Viramontes v. Cook County, arising out of the 7th Circuit, the petition posed the issue as: "Whether the Second and Fourteenth Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles." That was consolidated with Grant v. Rovella, which concerns Connecticut's ban upheld by the 2nd Circuit. The statement of the question in Viramontes will apply to both cases.
The Viramontes petition begins with the following statement:
Last term, this Court denied certiorari in Snope v. Brown, a case raising the constitutionality of Maryland's ban on the AR-15 platform rifle. 145 S. Ct. 1534 (2025) (Mem.) In his statement respecting denial, Justice Kavanaugh pointed out that there is a "strong argument that AR-15s are in 'common use' by law-abiding citizens and therefore are protected by the Second Amendment" and that it is "analytically difficult to distinguish the AR-15[] … from the handguns at issue in Heller." Id. at 1534 (Kavanaugh, J., statement respecting denial). Justice Kavanaugh noted that there were several other cases pending in the Courts of Appeals raising the same issue, including this one, and stated that "this Court should and presumably will address the AR-15 issue soon, in the next Term or two." Id.
So now the Court will deliver on Justice Kavanaugh's prediction. Recent statements by the Court suggest a favorable atmosphere to have the issue revolved. As Justice Kagan wrote for a unanimous Court in Smith & Wesson v. Mexico, semiautomatic rifles "are both widely legal and bought by many ordinary consumers. (The AR–15 is the most popular rifle in the country….)" And don't forget Justice Sotomayor stating in Garland v. Cargill that AR-15s are "commonly available, semiautomatic rifles." Such statements buttress the validity of the title of my latest book, America's Rifle: The Case for the AR-15.
Without belaboring the point, for much ink will now be spilled in this issue before the Court, since it was first announced in 2008, lower courts have been resisting the Heller test that the Second Amendment protects "arms in common use at the time for lawful purposes like self-defense." In Viramontes, the 7th Circuit summarily rejected the appeal based on its previous 2023 Bevis opinion, which stated that "'common use' is a slippery concept" and changed the subject to machine guns. In Grant, the 2nd Circuit wrote, "The cases do not hold that the Second Amendment necessarily protects all weapons in common use," for what if "the W54 nuclear warhead" became in common use before it could be banned?
Such comments belittle the Supreme Court's continuing references to the common use test. In resolving Viramontes and Grant, it's unlikely the Court will appreciate absurd examples that detract from its precedents.
Usually the Supreme Court issues an order list the day after the last opinions are handed down. Today we got the so-called "mop-up" order list a few hours after Barbara dropped. I guess the Justices really wanted to get out of dodge before Independence Day. We should never forget who is really in charge.
First, the Court GVR'd Petersen v. Doe. This case, which concerns the Arizona Save Woman's Sports Act, has been stuck in purgatory for nearly two years. John Sauer, while still in private practice, filed the cert petition in October 2024. Briefing concluded in January 2025. The case was then held until June 23, 2025 for Skrmetti. Then, the case was held until today, June 30, 2026, for B.J.P. And the Court GVR'd the case in light of B.J.P. I can't recall when a petition was held for two terms for two separate merits cases, only to be GVR'd. I am just going to go out on a limb and predict the Ninth Circuit will find a way to distinguish B.J.P. and this case will be stuck in another two years of litigation. A preliminary injunction was granted in July 2023. This case likely will not make it back to the Court until 2028 at the earliest. Justice delayed is nevermind. Speaking of delays…
Second, the Court (finally) granted cert in a pair of cases concerning bans on AR-15s. These cases have been hanging around for a long time. Cutberto Viramontes v. Cook County, a case from Illinois, was initially filed in August 2025. It was relisted 21 times. Per John Elwood it was reslisted "after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, June 11, June 18, and June 25 conferences." I can't recall a case that was granted this many times after a relist. (I think there were some cases relisted more followed by a GVR or denial.) Perhaps Wolford was holding this case up? Well, I'm glad we finally get a grant here. Justices Thomas and Scalia dissented on an AR-15 case more than a decade ago. Glad the Justices finally got around to this pressing issue, as millions of Americans had their Second Amendment rights infringed. Good thing we figured out whether marijuana users get to bear arms first! As I'll explain in a new piece, the Second Amendment jurisprudence has had only a marginal effect on gun owners in blue states. This case will actually make a difference. Relatedly, the Court denied cert in NRA v. Glass, which challenges Florida's ban on firearms for 18-20 year olds. (The Florida AG has argued this statute is unconstitutional, so this case is not the best vehicle.)
Third, the Court denied a stay in Perlmutter. The SG's "emergency" application has been pending since November 2025. I suspect the Chief hopes that Slaughter makes this case go away. I'm sure the D.C. Circuit will find a way to distinguish the Library of Congress and the Copyright Office as outside the executive branch.
Fourth, the Court CVSG'd Roybal v. Griffith, which involves sex-based housing and strip searches of transgender prisoners. As the petition notes, the Tenth Circuit ruled that prisons cannot "house a biologically male inmate with unaltered male anatomy alongside male inmates if the inmate expresses a female identity." The court further held that "absent emergencies, male officers cannot search biologically male inmates who self-identify as female." This case strikes me as far easier than B.J.P. I wonder if any female prisoner rights groups file in support of the government here--they should. Moreover, this case might give the Court another shot at revisiting Johnson v. California, which keeps getting cited in the context of affirmative action cases.
Fifth, the Court a pro se petition in Grand v. University Heights. This case presents a recurring issue for Jewish people where the government restricts small congregations to worship in a private home. My organization, the Jewish Coalition for Religious Liberty, filed an amicus brief. Here is how we framed the issue:
This Petition presents a simple but consequential question: may government officials circumvent RLUIPA by burdening religious exercise through denial by delay—via serial continuances, shifting demands, and procedural limbo—while insisting that nothing is ripe for judicial review because they have not yet said "no" in a final vote? The decision below effectively blesses that Kafkaesque regime, allowing officials to block religious use of property and then wield the absence of a formal denial to keep federal courts from hearing the merits at all. That rule is especially dangerous for Muslims, Jews, and other minority faith communities, which have long faced disproportionate resistance in zoning processes that appear neutral on paper but operate as instruments of exclusion in practice. In that setting, delay amounts to more than mere administrative inconvenience. It means missed worship, mounting costs, and the practical denial of the right to use one's own property for religious exercise.
This case may not be high-profile, but could be a significant victory for religious liberty.
The dissent cited Randy's Trump Is Right on Birthright Citizenship and an annotated transcript of John Marshall Harlan's 1897-98 Lectures on Constitutional Law, edited by Brian Frye, Michael McCloskey, and Josh.
Today, I did two TV interviews about the Supreme Court's ruling in the birthright citizenship. They may be of interest to some of our readers. So I am posting links to the videos here.
The first is an appearance on C-SPAN's Washington Journal lasting for over an hour. In addition to the C-SPAN interviewer, I was joined by Zach Shemtob of SCOTUSblog. We began about 15-20 minutes before the Supreme Court started issuing its decisions today, and continued for over an hour in all; in the first part of the show, we talked about some of the issues in the cases, even before they came down. In addition to birthright citizenship, we also discussed and took caller questions about the other three cases decided today (two on transgender athletes, and one on the First Amendment and campaign finance). I thank Zach for his excellent insights.
I am not able to embed the video in this post, for some reason. But it is available at this link.
NOTE: Late in this segment, Zach mentions the NPR report that Justice Alito had announced his retirement. The report turned out to be incorrect, and NPR has retracted it.
NOTE 2: I want to acknowledge that, during the C-SPAN show, I made a mistake in my description of National Republican Senatorial Committee v. FEC, the campaign finance/free speech case. I said that the Court struck down a law restricting the amount of money independent groups can spend on campaigns in coordination with political parties. In reality, the law restricted the amount of money political parties can spend in coordination with individual candidates for office. I apologize for the error. I think the mistake does not meaningfully change the First Amendment analysis. And I continue to believe the decision is correct for much the same reasons I indicated during the broadcast: the First Amendment protects the use of money and other resources to engage in political speech, and spending on speech that groups - or parties - can do independently - should also be protected when done in coordination with others.
I also did a much shorter interview, almost entirely focused on the birthright citizenship case for the Fox 10 TV station in Phoenix, Arizona. I embed the video below. My segment runs from about 5:15 to 13:45:
UPDATE: As indicated in Note 2 above, I made a mistake in my description of the campaign finance case during the C-SPAN program.
Today the Supreme Court decided Trump v. Barbara, the birthright citizenship case. A 6-3 majority struck down Donald Trump's executive order denying birthright citizenship status to children of undocumented immigrants born in the United States, and those born to non-citizen parents here on temporary visas. I think the Court got this extremely important decision right. In so doing, they saved hundreds of thousands of people from being subject to deportation - often to a lifetime of poverty and oppression.
The dissenting opinions by Justices Clarence Thomas and Samuel Alito mishandle key points. Most notably, they overlook the reality that their positions would have denied birthright citizenship to large numbers of freed slaves and other Blacks, thus negating the central purpose of the Citizenship Clause of the 14th Amendment.
The Citizenship Clause states that "[a]ll 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 Trump administration claims that children of undocumented immigrants and temporary visa-holders are not "subject to the jurisdiction." For many decades, the dominant interpretation of this phrase was that "subject to the jurisdiction" covers all children of parents who are required to obey US law. For example, they can be prosecuted if they commit a crime.
The majority opinion written by Chief Justice John Roberts rightly endorses this approach. It traces this rule back to British traditions of birthright citizenship later adopted by the US:
In 1868, as today, "jurisdiction" (in the context of a sovereign) refers to the "[p]ower of governing or legislating." N. Webster, An American Dictionary of the English Language 732 (C. Goodrich & N. Porter eds. 1865)…. To be "subject to" the jurisdiction of the United States, then, is to "liv[e] under" its "dominion," J. Worcester, Dictionary of the English Language 1435 (1860), a meaning reinforced by the Clause's territorial focus on those born "in" the United States. The Citizenship Clause uses jurisdiction in its ordinary sense—referring to the power of the United States to govern those within its territory….
The scope of that power was well settled in 1868, largely by "the celebrated case" of Schooner Exchange v. McFaddon, 7 Cranch 116…. Expounding on "general principles," Chief Justice Marshall explained that "jurisdiction" referred to "the full and complete power of a nation within its own territories." 7 Cranch, at 136. That "absolute" power was "susceptible of no limitation not imposed" by the nation itself. Ibid. All sovereigns, however, were understood to have impliedly waived their jurisdiction in "certain peculiar circumstances"—in essence, where exercising jurisdiction would "degrade the dignity" of "foreign sovereigns." Id., at 136–137. As in the context of jus soli, those peculiar circumstances arose most frequently in the case of "foreign ministers." See id., at 138–139. "[E]very sovereign would hazard his own dignity," after all, if his officials abroad were made to "owe temporary and local allegiance to a foreign prince." Id., at 139….
The ordinary legal meaning of the text of the Clause thus neatly captures the common law rule, with its broad reach and narrow exceptions. The same groups included (and excluded) by jus soli were included (and excluded) by the conventional understanding of jurisdiction. Excluded by both were the children of foreign ministers and members of 19th- century Indian tribes over whom the United States had ceded a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign (or quasi-sovereign).
No such intersovereign concerns apply to children born of parents unlawfully or temporarily present in the United States….
As the Court points out, this approach was reinforced by the Supreme Court's ruling in United States v. Wong Kim Ark (1898), which held that birthright citizenship applies to all children of noncitizens born in the United States, with the exception of children of foreign diplomats, those born on foreign "public ships" in U.S. territorial waters (which remain under the sovereign authority of their home governments), Native Americans born under the rule of tribal governments, and children of soldiers in invading armies occupying U.S. territory.
I think this is basically right. And it is reinforced by the main purpose of the Citizenship Clause of the Fourteenth Amendment: granting citizenship to then-recently freed slaves and other Blacks. The 1857 Dred Scott decision had ruled that Black people (even those who were not slaves) could never be citizens of the United States. The Citizenship Clause was intended to reverse this terrible decision. As I explained in a Lawfare article, every argument offered by the Trump Administration and its supporters would also have denied citizenship to large numbers of freed slaves, their children, and other Black people.
In a lengthy dissent partly joined by Justice Gorsuch, Justice Clarence Thomas argues that "subject to the jurisdiction" excludes children people who are not "domiciled" in the United States, and undocumented immigrants and temporary visa holders do not have such domiciles. But, as Thomas himself recognizes, the main purpose of the Citizenship Clause was "ensuring that all black Americans, both the newly freed slaves and those who were free before the war, would be treated as citizens of the United States and of the States in which they lived." His domicile theory is at odds with that objective.
As explained in my Lawfare article, many thousands of slaves were brought into the United States illegally after the US banned the slave trade in 1808. If illegal entry is enough to vitiate domicile, these people and their descendants would not - under Thomas's approach - be entitled to birthright citizenship. In the article, I point out this and other related flaws in the domicile theory:
If "domicile" simply means living in the United States, then both slaves and illegal migrants obviously qualify. If it means living in the U.S. legally, then undocumented migrants can be excluded. But the same goes for slaves brought in illegally. And… there were many such illegally transported slaves.
Moreover, to the extent that the Supreme Court has held that "domicile" matters for jurisdiction, it also requires that any legal change of domicile must be voluntary. For example, in a 1989 case involving a conflict between state and tribal jurisdiction over the adoption of Native American children, the Court ruled that "[o]ne acquires a 'domicile of origin' at birth, and that domicile continues until a new one (a 'domicile of choice') is acquired." Nineteenth century jurists held similar views. For example, in the 1890 case of Penfield v. Chesapeake O. & S.W. R. Co., the Supreme Court held that "No length of residence, without the intention of remaining, constitutes domicile" in a case where state jurisdiction over a case turned on residency…. Most, if not all, slaves forcibly brought to the U.S. obviously had no "intention of remaining" but would have preferred to be returned to their original homes. On this theory, undocumented migrants actually have a stronger claim to domicile than slaves did, since the former come voluntarily and generally have every intention of remaining indefinitely.
In sum, either children of undocumented migrants and temporary visa holders satisfy any relevant domicile requirement, or that requirement would exclude all or most slaves and their descendants.
In his separate dissent, Justice Gorsuch raises an additional criticism of Thomas' theory (which explains why he joins Thomas only as to the status of children of temporary visitors, while potentially excluding undocumented migrants who wish to remain in the US indefinitely):
Perhaps Wong Kim Ark does not squarely foreclose the government's position. After all, that case addressed a child born to parents who lawfully resided in this country. Still, I wonder: Is a child born here to parents who have long chosen to make this Nation their permanent home not a citizen under the Fourteenth Amendment solely because his parents' presence violates statutory law? If those parents are not domiciled here, then where are they domiciled? And if the answer is nowhere, how can we reconcile that conclusion with this Court's longstanding recognition that every person is domiciled somewhere?
This is correct. But worth nothing that slaves, of course, did not choose to make their homes in the US at all.
In a separate dissent, Justice Alito argues that the Citizenship Clause "confers citizenship on only those children who, at birth, owe allegiance solely to this country." Children of illegal migrants and temporary visa-holders, he contends, may owe allegiance to their parents' countries of origin. As I explained in my article, this theory, too, would deny birthright citizenship to freed slaves:
If, as this theory assumes, people owe allegiance to the government of the country they are born in, it obviously applies to virtually all freed slaves as well, even those brought into the U.S. legally.
Africans captured and sold to slave traders owed "allegiance" to the rulers of their homelands just as much as illegal migrants or temporary visa-holders do. Indeed, the former likely had stronger ties of allegiance than the latter, since captured slaves—unlike migrants—had no desire to leave their homelands and live under the rule of the U.S. government instead.
Contrary to racist stereotypes, many West African rulers of the 18th and 19th centuries had considerably developed states…. And even more primitive tribal rulers could still claim allegiance from their subjects, as the U.S. government recognized in the case of Native American tribal governments.
This is part of the reason why children born on Native American reservations run by such governments are among the few categories of people born in the United States who were not historically understood to be given birthright citizenship by the Citizenship Clause….
The Trump administration and some of its amici, such as Ilan Wurman, combine the "allegiance" argument with the idea that illegal migrants are not under U.S. jurisdiction because they are not under the "protection" of the U.S. government. Randy Barnett and Wurman have argued that birthright citizenship applies only to the children of people who have entered into a "social compact" and an "allegiance-for-protection" exchange with the U.S. government.
But, as I pointed out in an earlier critique of the Barnett-Wurman argument, slaves obviously were not part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters. Indeed, illegal migrants and temporary visa holders actually get far more protection from the U.S. government than slaves did. While undocumented immigrants are subject to deportation, U.S. authorities still, at least to some extent, protect them against enslavement, forced labor, and assault. Temporary visa holders get still more protection, as they can seek protection from law enforcement without fear of getting deported.
In a concurring opinion, Justice Kavanaugh argues that the Trump executive order is illegal under a federal law enacted in 1940, but not under the Fourteenth Amendment. He contends that illegal migration was a problem largely unknown in 1868, and that the Citizenship Clause should not be understood in a way that precludes addressing this supposedly "new and different circumstance." But, as already noted, illegal entry of slaves was not a novel issue at all, and the Citizenship Clause was intended to cover such people. Moreover, even if there were few federal immigration restrictions prior to 1868, many state governments did have such restrictions, and it is notable that the Citizenship Clause grants state citizenship as well as the federal kind. Illegal entry was no obstacle to the latter, and the same logic applies to the former.
Kavanaugh also states that the "only apparent principle unifying the four disparate exceptions listed by the Court in Wong Kim Ark—especially in light of the exception for tribal American Indians—is that the parents in all of those varied circumstances were not U. S. citizens and were citizens of other nations, whether tribal or foreign." He claims this unifying principle also covers children of undocumented immigrants and temporary visa holders. In reality, these four exceptions are also unified by their exemption from many or all US laws. In addition, as already noted, any theory under which the latter two categories could be added to the list of exceptions would also cover numerous freed slaves and other Blacks.
In a concurring opinion, Justice Ketanji Brown Jackson rightly emphasizes the links between the Citizenship Clause and Black Americans lengthy struggle for freedom and equal rights. She explains how the Citizenship clause is based on a "universalist approach" to liberty and equality, as opposed to one limited to a specific group.
I think she is generally right on this, and there are many eloquent quotes and notable historical points in her opinion. But it is worth noting that the Citizenship Clause itself does not fully live up to these universalist aspirations. As I explained in a post on why birthright citizenship is a "second-best" policy, the Fourteenth Amendment makes citizenship dependent on morally arbitrary circumstances of location of birth, which is not entirely dissimilar to the rules based on race and ancestry that Jackson and nineteenth century advocates of racial equality rightly condemned. A fully universalistic policy would eliminate such distinctions entirely.
That said, the moral limitations of the Citizenship Clause do not vitiate its legal validity. And today's decision is vastly preferable to one that would have upheld Trump's executive order, thereby subjecting hundreds of thousands of people to deportation.
UPDATE: For those interested, I have posted a compendium of all my writings on the birthright citizenship issue here.
With the birthright citizenship opinion handed down, I thought we were done for the term. But at 10:51 ET, NPR posts a story with Nina Totenberg's byline: "Justice Samuel Alito, who wrote the opinion overturning Roe v. Wade, retires."
The story had no actual details about the retirement, but included a lengthy profile of Justice Alito. It seems this piece was pre-written just in case of a retirement.
About 15 minutes later, the story was taken down. (I preserved a PDF.) There is now an Editors Note;
Editors Note: Earlier today we erroneously published a story saying that Supreme Court Justice Samuel Alito was retiring. He has not announced his retirement and we have retracted the story.
Why was it published? Did someone make a mistake an erroneously click "submit." Or did Nina Totenberg green-light the story? I think NPR should provide an explanation of what happened here. These sorts of announcements can move markets and have a huge impact before they are corrected.
This mess-up brings to mind the faulty reporting about NFIB v. Sebelius in 2012.
Update: Mediaite has more details on the retraction.
I correctly predicted that Coach Kavanaugh would have the transgender sports cases and the Chief would write birthright citizenship. I was wrong about Alito authoring NRSC, but that means he did not write anything in December, which gives weight to my theory that Alito lost the majority opinion in Hamm v. Smith.
I will have much more to say about today's cases, and yesterday's cases, and last week's cases, in due course.
