Who counts as an American citizen? 

That question—which shapes everything from voting rights to passports—was supposed to be answered last week.

But the U.S. Supreme Court had other plans in its decision (or indecision) on birthright citizenship in Trump v. CASA, Inc.

It should not have come as a surprise, though. 

When President Trump signed a flurry of executive orders within hours of taking the oath of office on January 20, one order in particular, EO 14160, got everyone’s attention. With the stroke of his pen, the president declared that children born in the U.S. to parents who are undocumented or here temporarily would no longer automatically be considered birthright citizens. 

Many impacted by the president’s action reacted quickly and filed numerous lawsuits across the country, alleging that the EO violated what is known as the Citizenship Clause of the Constitution’s 14th Amendment.  Several of these courts responded by issuing “universal” or “nationwide” injunctions—legal stop signs that blocked the executive order from being enforced not just for those who sued, but for everyone in the U.S.

In response, the government argued the courts had no such power beyond their respective jurisdictions; therefore, the Court noted, the increasing use of this “expansive remedy” warranted its review. 

So, while America fixated on birthright citizenship, the Court focused on an entirely different issue: the scope of judicial authority—and, for those interested, the Court’s 6-3 decision ending universal injunctions relied solely on the powers outlined in the Judiciary Act of 1789 – the law which established the U.S. court system.

But the question of birthright citizenship remains far from settled and will likely reach the Court next year. 

And when that happens, we can expect fireworks from all sides as the Court once again interprets one of the Constitution’s most important amendments—the 14^th. Passed within just four years of the Civil War’s end, the 14^th Amendment stands alongside the 13^th (which abolished slavery), the 15^th (which guaranteed voting rights for all citizens) and the Civil Rights Act of 1866 (which overturned the infamous Dred Scott v. Sandford decision) as a pillar of postwar American democracy.

Legal scholars widely agree: limiting or overturning the 14^th Amendment’s Citizenship Clause will be a tall order to fill. It is enshrined in the Constitution, has been upheld by the Court in at least four other decisions, and was statutorily ratified by Congress – most recently in Section 201 of the Nationality Act of 1940. The law states that people “born in the United States, and subject to the jurisdiction thereof,” “shall be nationals and citizens of the United States at birth.”

Regardless of one’s position on the issue of birthright citizenship, the Court has put into our hands the gift—and remedy—of patience and further inquiry. These are worthy offerings when questions of Constitutional meaning and American identity are at stake.

Mills Fleming is a partner at HunterMaclean in Savannah, where he focuses on healthcare compliance and immigration law. For information, contact him at [email protected] or (912) 236-0261.