In the landmark decision of Trump v. Barbara, the Supreme Court ruled 5-4 against Executive Order 14160, which had sought to end birthright citizenship for children of undocumented immigrants and temporary residents in the United States, deeming it unconstitutional under the 14th Amendment’s citizenship clause. If just one justice from the majority had taken a different stance, the court would have been left with a 4-1-4 split, thus creating significant uncertainty in its jurisprudence.
Under the Marks v. United States precedent, when there is no majority opinion, the decision of the narrowest concurrence, which is characterized by the narrowest grounds shared between opinions, is often used as a binding precedent. Had Trump v. Barbara devolved into a 4-1-4 split, Justice Brett Kavanaugh’s dissent could have taken center stage. Kavanaugh agreed with the executive order from a constitutional viewpoint but argued it violated a statutory provision guaranteeing birthright citizenship as laid out in 8 U.S.C. § 1401(a).
This situation would have sparked debates comparable to the 1978 Bakke decision, wherein Justice Lewis Powell’s opinion in a 4-1-4 split gained unintentional precedential weight in later years. Such an ambiguity in the Barbara case would have likely led to legislative discussions, possibly leading Congress to draft new statutes reflecting the executive order’s intent without amending the constitution, a suggestion already explored in proposed legislation after the verdict, as noted in Congressional endeavors.
The ability of Congress to legislate in alignment with Kavanaugh’s statutory interpretation is unclear under the two prevailing interpretations of Marks. The logical-subset approach, which some circuits favor, stipulates that a subset of a broader decision becomes binding. Contrastingly, the results-oriented approach could leverage statutory as narrower than constitutional grounds. If a statutory interpretation is deemed narrower, Congress might have a pathway to legislate similar measures, but if seen otherwise, it would signal a return to judicial uncertainty.
This potential scenario highlights the enduring ambiguity inherent in Marks jurisprudence, serving as a timely call for its reevaluation or clarification to prevent similar predicaments in future high-profile cases.