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The Amendment That Wouldn’t Bend

Cato Podcast — July 14, 2026

Featuring Laura Bondank-Harmon (Legal Associate, host), David J. Bier (Director, Immigration Studies, and The Selz Foundation Chair in Immigration Policy, Cato Institute), and Thomas A. Berry (Director, Robert A. Levy Center for Constitutional Studies, Cato Institute)

Laura Bondank-Harmon: Who gets to call themselves an American? It’s both a complicated and relatively simple question. For more than 150 years, the 14th Amendment to the Constitution has declared that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. For generations, that language has been understood to guarantee citizenship to nearly every person born on American soil. But earlier this year, that understanding was challenged when President Trump issued an executive order seeking to deny citizenship to those whose parents are here illegally or only temporarily. The case quickly made its way to the Supreme Court, where the justices were asked to answer a fundamental constitutional question: what does the 14th Amendment mean by the phrase “subject to the jurisdiction thereof”? In a 6–3 decision, with Chief Justice John Roberts writing for the majority, the court struck down Trump’s executive order. In doing so, the court reaffirmed the constitutional rule that has shaped American citizenship, but the fight to preserve this interpretation might not be over.

I’m Laura Bondank-Harmon. Welcome to the Cato Podcast. Today, I’m joined by David Bier, the Selz Foundation Chair in Immigration Policy at the Cato Institute, and Thomas Berry, Director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies. We’re here to unpack the court’s reasoning and discuss how this decision will shape American citizenship in the future.

Tommy, let’s start with some context. Can you give us a brief overview of the 14th Amendment and how the Supreme Court interpreted it in this case?

Thomas A. Berry: Absolutely. So, the controversy in this case is about that language that you read. The 14th Amendment guarantees that all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States. And the dispute in this case, the controversy in this case, is what does that caveat “subject to the jurisdiction thereof” mean? Presumably, it carves out some subset of people born on U.S. soil who are not citizens, but how small or how big is that carve out? And what defines logically the people who are exempt from the normal rule of birthright citizenship?

So, the majority opinion said that it’s a very small exception. And to determine the contours of that exception, they mainly look to history, going all the way back to the English common law. When the rule was the same as it is now, just solely the idea that being born on British soil meant you were subject to the king — you owed a duty of loyalty and allegiance to the king no matter where you went in your life thereafter, but also that you got some benefits of being a subject of the king: protection and, notably, citizenship. So, the only people under that logic who were exempt from this rule were those who were not subject to the king, who did not owe him a duty of loyalty. And the main category in the English common law were the children of diplomats, ambassadors, who classically had so-called diplomatic immunity, where under a legal fiction, it was as if their home country’s soil was under their feet, no matter where they traveled in the country they were visiting, the country in which they were acting as a diplomat. We still have that today with notions like an embassy is officially the soil of its home country, not the country that surrounds it, and diplomats even to this day have some level of diplomatic immunity, where they are not subject to all the same local laws that you and I are subject to when they’re in the United States.

The Supreme Court, the majority opinion, traced that history to the American common law, found that it basically continued in that same vein, with the only additional exception being those born to Indian tribes, who were similarly partially exempt from American law and exempt from state laws. And the court held that with those two exceptions being essentially the only people not fully subject to U.S. law, everyone else born on U.S. soil is automatically a U.S. citizen, and no president or Congress can reduce that rule.

Laura Bondank-Harmon: Okay. So what I’m hearing is this case impacts almost everyone who’s currently present on U.S. soil, and so obviously that means it affects immigrants who have chosen to have their families here in the United States. David, can you tell us how this constitutional challenge has affected them and what they can expect now?

David J. Bier: Well, I would like to emphasize to start that this decision really does affect the rights of all Americans. Everyone who’s born in the United States now has assurance that they don’t have to go and resort to proving their citizenship by way of proving the citizenship and immigration status of their parents. The birthright citizenship order is one of the most important limits on government power, because if a president could have the authority to decide who is a real American and who is not — even if it was Congress making the decision — that would be an enormous amount of power over our lives.

As sort of a baseline, when we’re thinking about immigration enforcement in the United States and how it’s being carried out by this administration, it is the case that they’re stopping people on the street and demanding to see proof of legal status and citizenship in the United States. When it comes to immigrants, if you’re building your life in this country, you want to have rights and understand that you can invest in your skills and your education with full knowledge that you will be an American for the rest of your life and that no president and no Congress can take that away. And that’s one of the main ways in which we have done such an excellent job in this country of assimilating people into American society. We don’t have a second-class citizenship for people who were born here. We enable them to integrate themselves into our society in ways that other countries that don’t have this rule are unable to. And so it’s not just the legal rule, of course — our culture of assimilation is there and is important as well. But this legal basis is incredibly important for assimilating people. And part of that is their upward mobility into the second generation.

Laura Bondank-Harmon: This all sounds like this decision should be somewhat predictable, right? The language of the Constitution says that people who are subject to the jurisdiction of the United States are citizens of the United States. But the decision from the Supreme Court was not unanimous. In fact, there were three dissenting justices — Justice Alito, Thomas, and Gorsuch — all dissented. And then Kavanaugh concurred in the judgment, but dissented on the constitutional question. Tommy, can you tell us a little bit about the arguments made by those dissenting justices?

Thomas A. Berry: So I think the first thing to stress is that there was one major point of agreement between the majority and all of the dissents, which is that the number one goal of those who drafted and ratified the 14th Amendment was to overturn the Supreme Court’s Dred Scott decision from right before the Civil War. The Dred Scott decision had held that all African descendants on U.S. soil were not birthright citizens. In fact, it held that they could not become citizens, that they were of an inferior race that had never been contemplated as equals by the drafters of the Constitution. That was obviously a horrific decision that the Republicans made a priority to overrule as soon as they began Reconstruction post-Civil War, and they tried to overrule it in two successive ways. First, they passed a Civil Rights Act, which held that all persons born on U.S. soil and not subject to any foreign power are citizens of the United States. And then, to constitutionalize that rule — to constitutionalize the overruling of Dred Scott — they passed the 14th Amendment, which has the language we’ve discussed.

Now, the dispute where the dissents differ is how did it overrule Dred Scott, and what rule did it put in place such that Dred Scott could never happen again? Justice Thomas’s dissent, which is joined by Justice Gorsuch, says that the new rule of citizenship is based on domicile, which is just a fancy word for having your main home in the United States — not being a tourist or a traveler or someone passing through, or even someone here on a three-month study-abroad program, but having domicile is where your main home is, where you would pay taxes and so forth. So that, Justice Thomas said, is why Dred Scott was wrong and why Dred Scott was inconsistent with the original rule of birthright citizenship, because Africans on U.S. soil were domiciled here. Even slaves were, of course, domiciled here. And Justice Thomas says that “subject to the jurisdiction thereof” essentially means jurisdiction is which country do you pay your taxes to, which country could draft you, and so forth. But, Justice Thomas says, that means that a person — a so-called sojourner, to use 1800s language — or a tourist or someone passing through, is not subject to birthright citizenship rules. So Justice Thomas says the so-called birth tourist — that’s a controversial term, but he uses that — the person who comes to the U.S., gives birth, and then leaves, or anyone else who is coming through on a vacation happens to give birth and then leaves, Justice Thomas says birthright citizenship should not apply to them.

Justice Alito takes a slightly different tack. Justice Alito focuses less on domicile and more on: do you have citizenship of any other country? So Justice Alito thinks that the language in the Civil Rights Act and the 14th Amendment basically tried to accomplish the same thing, and that both of them were focused on dual citizenship should not be discouraged. And if you are already a citizen of some other country, we didn’t want you to have split allegiances with the United States. So in Justice Thomas’s view, your primary allegiance was what mattered. And if you were a citizen of some other country, that exempted you from birthright citizenship — you no longer got the benefits.

And Justice Kavanaugh, as you said, has an interesting concurrence in the judgment, but not in the reasoning, where he agrees that a statute passed in 1940 did have birthright citizenship under the rule of virtually everyone except ambassadors and those on Indian reservations. But he doesn’t agree with the majority on the Constitution. He says, yes, maybe those were the only categories in the 1860s, but we have to use analogical reasoning and extend it to new categories today if the principles of that time would extend to new circumstances today. So the new supposed circumstances of so-called birth tourism, of easier airline travel, those types of things, of illegal immigration, which was not really a thing that was common at the time — almost all immigration was legal in the 1800s, as David knows. So all of those sort of supposedly new factors lead Justice Kavanaugh to say we should have new carve-outs from the rule of birthright citizenship. So three somewhat incompatible theories, but all three would have a much larger carve-out of those supposedly not subject to the jurisdiction of the United States.

Laura Bondank-Harmon: And Tommy, you mentioned birth tourism. I think that was sort of a hot-button word while this case was pending before the court. And the current administration has been pretty clear on their intentions to limit immigration as much as possible, and some of those decisions have actually already been upheld by the Supreme Court. David, could you tell us a little bit about the effects of some of these immigration policies that have already been enacted, and how you see the immigration landscape changing in the coming years?

David J. Bier: So when I look at the administration’s immigration agenda, it basically has four parts. The first part is closing legal immigration to the United States to an extent that is really unfathomable. If you think about this historically, we never had an executive branch be so opposed to people coming to the United States legally. There’s over 90 countries now where you cannot receive an immigrant visa to travel to the United States permanently and become a permanent resident in this country. Even if you are a spouse or a minor child of a U.S. citizen, they are not issuing visas to that long list of countries encompassing about half of the immigrant visas that were issued before the Trump administration came into office. So it’s limiting legal immigration.

The second stage is then, of the people who are in the United States, effectively cancel anyone’s legal status that you can. And that means we’ve eliminated legal status protections for over two million people in the United States, who have been effectively overnight turned into illegal immigrants as a result of the president’s actions relating to temporary protected status, as well as parole. And this is, you know, despite the fact that in many of these cases — for example, in the Haiti case that came up for review by the Supreme Court — the statute is actually quite clear: you’re not supposed to cancel people’s temporary protected status if there isn’t a fundamental change in conditions in their home country.

Laura Bondank-Harmon: You mentioned the Haiti case — what was that case?

David J. Bier: Yes. So Haiti was designated for temporary protected status, which means that Haitian nationals without permanent residence in the United States could apply to receive temporary protected status. And over 300,000 had received temporary protected status under that designation under the Biden administration, which was based on effectively the fact that there’s no rule of law — there’s no functioning government. We have an anarchic situation in Haiti, and it would be dangerous and irresponsible to send people back there. The Trump administration was supposed to, according to the statute, review the country conditions and then only terminate temporary protected status if it determined there had been a change in the country conditions. It didn’t do that. And the Supreme Court said, well, it doesn’t matter, because Congress also said the decision by the secretary is not reviewable, and that includes all the precursor decisions leading up to the decision. So all of the requirements that led up to that determination are also not reviewable now. And so what you end up with is a lot more people who have lost legal status and are now eligible for deportation. And, of course, because they applied for legal status, the government knows exactly where they are and who they are, which leads to the third stage of the immigration agenda, which is really detain people and arrest people without basis. And what I mean by without basis — this is not prioritizing people based on their threat to the country. So these temporary protected status holders had all had to be vetted in order to receive the status in the first place. But then even the people who cross the border illegally or otherwise are in the country — they’re not prioritizing as they were before people who had victimized Americans, who had committed violent and property crimes and so on, who we would support and want them to prioritize to go after and deport.

And then, of course, the fourth and final stage is the deportation. And the goal there is deportation without due process. And that means eliminating all the procedural elements that protect people from wrongful deportations. And that includes a hearing before an immigration judge, that includes the right to seek a bond hearing before you’ve been ordered removed. And so all of these elements that were a basic element of our immigration system are under assault by this administration, leading to really a breakdown in the rule of law. And they’ve focused on all of these ways in which they can short-circuit the system and the laws that Congress has enacted, as well as the Constitution. And I’ve documented numerous cases where they’ve been found to have violated the Constitution — deported people based on their speech, or attempted to deport people based on their speech, in violation of the First Amendment; the Fourth Amendment, stopping people without a reasonable basis; the Fifth Amendment, deporting people without due process, as even the Supreme Court had found last year they did in the Alien Enemies Act cases. And then the 10th and the 14th Amendment we just talked about. So they repeatedly — they’re bumping up against constitutional limits when it comes to their immigration agenda. And rather than succumbing to them and figuring out how do we practically implement our agenda within the constraints of the Constitution, more and more they’re going around the Constitution in order to accomplish their agenda. And of course, in this case — the Trump v. Barbara birthright citizenship case — the court said, no, you can’t do that. But obviously, President Trump has reacted to that decision. I believe he said it was bad for our country, and he’s even urged Congress to take the matter into their own hands through legislation.

Laura Bondank-Harmon: Tommy, is that even a possibility or a likely scenario?

Thomas A. Berry: Not really. So first of all, of course, any constitutional decision can be overruled by constitutional amendment, as Dred Scott was overruled by the 14th Amendment. The odds of this being overruled by constitutional amendment are totally null. You’re never going to have a consensus of two-thirds of both houses of Congress and three-quarters of the states to narrow birthright citizenship.

Now, because the Supreme Court decided this case on constitutional grounds rather than on statutory grounds — they didn’t take the path that Justice Kavanaugh urged them to take — because of that, a simple statute cannot override what the Supreme Court has held. If a statute were in conflict with the 14th Amendment, the 14th Amendment would win out under the rule that the Constitution is the supreme law of the land.

Laura Bondank-Harmon: And by that, you mean the Supreme Court decided that this case violates the 14th Amendment. They didn’t answer that second question of whether it violates the Immigration and Naturalization Act?

Thomas A. Berry: Exactly. They could have taken a more narrow path and simply decided only on statutory grounds and left the constitutional question for another day. But they just went all the way to resolve the constitutional question, so that there is no doubt. If they had taken the Kavanaugh path, perhaps you would have had, you know, an urge to push to enact legislation to change that INA statute. But then we would just be back where we started, and the court would have to address the constitutional question. So they simply took the quicker route to the final outcome.

Given that, no statute can overrule what the Supreme Court has held. There are a few, I think, very implausible suggestions to categorize some immigrants as falling into these exceptions. So I saw one op-ed saying, we’ll just categorize illegal immigrants as an invading army, because in the common law, members of an invading army — I’m not sure why they would take pregnant women with them, but this was one of the ideas — that they were exempt because they weren’t subject to law. They were there to conquer the country, not to obey its laws. That’s not going to go anywhere. The other idea I’ve seen is, we’ll just declare that some or all immigrants are diplomats, give them immunity from some level of federal law.

Laura Bondank-Harmon: And if they get immunity, doesn’t that mean they’re now not subject to the jurisdiction of the U.S.?

Thomas A. Berry: I think, again, it’s implausible to the point of parody that Congress would decide to exempt some category of immigrants from federal law that the rest of us all have to comply with. Now, they could put up potential more barriers to pregnant women coming into the country. That could legitimately reduce the number of people who receive birthright citizenship. They could increase enforcement to prevent fewer people — unauthorized entering the country who are pregnant. Those are, I think, the only two realistic ways that they could change the number of people who receive birthright citizenship.

Laura Bondank-Harmon: What about executive orders? This case specifically dealt with an executive order attempting to deny birthright citizenship. Do either of you think that it could possibly be restricted with a future executive order?

Thomas A. Berry: It’s essentially the same issue as with a congressional statute — both of them would run into the Constitution. And I think executive orders are on even weaker ground, because executive orders not only have to comply with the Constitution, they also have to be authorized by some statute. It’s not totally clear to me what statute authorized this executive order, even if it were consistent with the Constitution, which it’s not. You want policies like this, so long as they’re compliant with the Constitution, to come from Congress after a nationwide deliberation.

Laura Bondank-Harmon: David, there are obviously deep partisan gaps when it comes to the latest immigration policies. How do Americans feel about immigrants? And what are the arguments for immigration that you have seen through your work that could maybe change people’s minds on the issue?

David J. Bier: When you look at public opinion — Gallup has been running the longest-running poll that just asks people, on net, do you think immigrants are a benefit or on net a cost to the country. It’s almost always super-majorities saying recent immigrants have been a benefit to the country. But it’s more complicated than that when you start talking about different types of immigrants to the United States.

And really, our perspective has always been: if you want to address this issue in a way that doesn’t require spending — what this Congress has spent already, over 200 billion dollars on immigration enforcement in just a couple of years — if you don’t want to spend all of that money and create all of the sort of chaotic scenes that we’ve seen play out in cities around the United States, you create a legal immigration framework whereby people can come in an orderly way. And I think what we need is a system that recognizes the need of the country for people who are willing to work and contribute to it economically and socially. And that’s not what our system is. I mean, you go back to the late 19th century, early 20th century — 98 percent of all the people who were seeking permanent residence status in the United States going through Ellis Island were approved. They were allowed to come in and receive permanent status in this country. You look at the comparable number in 2024, before the Trump administration’s actions: just three percent of all the people going through that process ultimately received permanent residence status. And so our system is so out of whack with reality, with the needs of the country, that we’re left with this chaotic illegal immigration problem that’s just going to keep coming up. It’s subsided now as a result of all the chaos that we’re seeing in the interior of the United States. But it’s a longstanding, hundred-year-old issue that resulted from our legal immigration restrictions in the 1920s. And so if we want to get back to a system, we need to look back to one that recognizes the rights of Americans as fundamental — our right to associate and contract and trade with people around the world should be the basis for our immigration policy. And so I would totally change the system to focus on creating those legal ways. You know, it starts at the consulates — let people apply for visas to travel legally to this country. And you will see a reduction in illegal immigration, and you will see an increase in our prosperity, as more people come and contribute to this country in a legal, orderly way.

Laura Bondank-Harmon: That makes perfect sense to me. Now, I just have one final question for both of you. What do you think is the biggest takeaway from this decision?

Thomas A. Berry: The first thing I think it’s worth appreciating is that both the majority and the dissenting opinions in this case were firmly grounded in history and were fairly sophisticated in the amount of historical sources they dug through to try to get the answer right. So both the majority and the dissents are practicing originalism at its best — originalism being the idea that to correctly interpret the Constitution, you have to dig through history, especially at the time a constitutional provision was ratified, and figure out what the general public would have understood the words in that text to mean. And the court is very focused on leading up to and at the time of the 14th Amendment’s adoption: what were the rules of law, what were the background principles, what was the history and tradition that informed people’s understanding of “subject to the jurisdiction of the United States.” So it’s something to be celebrated that the court worked really hard on this opinion. The dissents, I think, also worked hard and mustered a lot of historical evidence. And scholars and advocates gave the court a ton of useful material to work with. And if you compare this to the last time the court addressed this issue, in the Wong Kim Ark case of 1898, this is simply, down the line, better-written, more sophisticated, and more logical opinions. So that’s important. And I think that shows that the project of making this an originalist court — urging lawyers and judges to decide based on history, tradition, text, not just their own public policy views — is winning, and does not just lead to outcome-oriented decisions, but actually leads to good-faith disagreement, but in my view, in this case, coming out in the correct way.

And the last thing I’ll say is that some will criticize the court for supposedly taking this decision out of the democratic process by ruling on the constitutional provision — they preempted any potential executive order or act of Congress restricting birthright citizenship. But that’s what the Constitution is supposed to do for the most important questions. The exact reason why the Reconstruction Congress enshrined so many individual rights in the 14th Amendment, including birthright citizenship, is that the actions of the southern states, the actions during the Civil War, and the bad decisions of the Supreme Court in cases like Dred Scott had all shown that these rights were vulnerable unless they were taken out of the democratic process. And so by correctly interpreting it, the court is protecting those fundamental rights, including birthright citizenship, from potentially destructive temporary majorities.

David J. Bier: My takeaway, just from a big-picture policy perspective, is that this case really highlights how the immigration agenda, the deportation agenda, is not about illegality and the rule of law and a lot of the other things that you hear about. We’re talking about deporting people who never violated any laws, who were born here, who’ve grown up here, who may even now be adults. And this is the type of fact that should be the baseline for understanding everything else this administration is doing on immigration, which is restricting legal immigration, taking away people’s legal status.

The other main takeaway that I would say is every American should think about the interaction between immigration policy and our own rights as Americans. And in this case, if it had been allowed to stand, it would have been a massive degrading of our rights. That is the fundamental takeaway for me when I think about this case — that it should be a reminder for all Americans that we cannot look at immigration policy in isolation, as if it’s something affecting just foreigners and immigrants, when it’s really something affecting all of us as Americans together. And we should have immigration policies that protect our rights, and not degrade them.

Laura Bondank-Harmon: Thank you both for being here and participating in this discussion. I think it’s been extremely enlightening and informative, and I think our listeners will take a lot away from it.

Thomas A. Berry: Thank you.

David J. Bier: Thank you.

Laura Bondank-Harmon: Thank you for listening to today’s episode of the Cato Podcast. Once again, I’m Laura Bondank-Harmon, manager of legal programs for the Cato Institute’s Project on Criminal Justice and Robert A. Levy Center for Constitutional Studies, joined by David Bier, the Selz Foundation Chair in Immigration Policy, and Thomas Berry, the Director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies. If you enjoyed today’s discussion, please subscribe and leave a review wherever you get your podcasts. To learn more about the ideas and research discussed in this episode, visit Cato​.org.

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