Trump's birthright citizenship EO is an attack on the rule of law
The Constitution couldn't be clearer. Will SCOTUS care?
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Donald Trump wasted no time making good on his campaign promise to undermine the 14th Amendment.
On his first day back in office, he issued an executive order purporting to end birthright citizenship, which would stop the issuance of any citizenship documents, such as passports, to a child whose parents were not citizens at the time of their birth. The wildly unconstitutional but wholly expected move was met with a flurry of litigation, some or all of which will inevitably reach the United States Supreme Court.
It’s tempting to presume the Court will treat this craven xenophobia with all the disrespect it deserves and swiftly smack it down. But this is the same Court that gave Trump a blank check to commit crimes, so all bets are off.
Four separate lawsuits have been filed challenging the order. Washington, Arizona, Oregon, and Illinois sued the administration in federal court in Washington state, while a coalition of 18 states filed suit in Massachusetts federal court. In that same court, Massachusetts Lawyers for Civil Rights filed on behalf of a pregnant woman whose child, due in March 2025, would be targeted by the executive order. Finally, a group of civil rights organizations, including the NAACP and the ACLU, filed in the federal district court for New Hampshire.
Broadly, all lawsuits are arguing the same thing: that there’s no way the executive order can be constitutional as it flies in the face of the explicit language of the 14th Amendment, which states that “All 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.”
Dragging the country back to Dred Scott
Ratified in the wake of the Civil War, the 14th Amendment granted citizenship to formerly enslaved people. In doing so, it overturned one of the Supreme Court’s most shameful decisions — Dred Scott, which held that Black people whose ancestors had been brought to the United States and sold into enslavement could never be American citizens. In 1898, in United States v. Wong Kim Ark, the Supreme Court ruled that the 14th Amendment’s citizenship protections extended to children whose parents were non-citizens.
There are two ways in which citizenship is determined across the world. The ruling in Wong Kim Ark established that citizenship in the United States is jus soli — a Latin term for “right of the soil.” There, citizenship is place-based, so it attaches to someone simply by being born within the confines of the country. The argument from anti-birthright citizenship crusaders like disgraced Trump lawyer John Eastman is that the words “subject to the jurisdiction thereof” in the 14th Amendment mean that at least one parent has to owe allegiance to the United States by being a permanent legal resident or a citizen. This flips American citizenship on its head, functionally switching it to the other method, jus sanguinis, or the right of blood. That’s where citizenship attaches based on parentage.
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Making citizenship contingent on the nature of parentage was precisely the holding in Dred Scott, where the fact that Scott’s ancestors were Africans brought to America to be enslaved meant that he could never be a citizen. The 14th Amendment and Wong Kim Ark definitively reject this idea, grounding American citizenship in being born here. It’s no exaggeration to say that the executive order seeks to drag the country back to the Dred Scott framework, making certain people ineligible to be citizens.
There’s also the problem that an executive order cannot overturn the Constitution or a Supreme Court ruling. As much as Trump is showing he plans to govern by fiat, issuing order after order dismantling the functioning of the government, executive orders are only legally valid if they don’t violate the Constitution or existing laws. Put simply, the president does not have the power to change the very foundations of American citizenship with the stroke of a pen.
The order has already been temporarily blocked nationwide thanks to Judge John C. Coughenour’s ruling in the Washington case. Coughenour’s order itself is pretty short and sweet, noting that the states will likely succeed in showing that Trump’s EO violates the 14th Amendment.
The real fireworks happened during the emergency hearing, where Coughenour told the Department of Justice attorney arguing in favor of the executive order, “frankly, I have difficulty understanding how a member of the bar could state that this is constitutional.” Coughenour also showed he understood the depths of the constitutional crisis here, saying, “There are other times in world history where we look back and people of goodwill can say, 'Where were the judges? Where were the lawyers?'"
Trump has, of course, already said he’d appeal and then made his usual remarks undermining the integrity of any judge who doesn’t rule his way: “They put it before a certain judge in Seattle, I guess. Right? And there’s no surprises with that judge.” (Watch below.)
Trump’s insinuation of bias is absurd, as Coughenour is a Reagan appointee, and the Western District of Washington assigns cases to judges randomly. But Republicans are so used to judge-shopping into their pet Texas federal courts that it’s inconceivable to them that every other court doesn’t function the same.
There have been no substantive hearings or rulings in the other cases. At the same time, some of Trump’s most fervent supporters, including Arizona Rep. Andy Biggs, have introduced legislation that would codify his executive order. Of course, Congress doesn’t have the power to overturn the Constitution either, so even if a law banning birthright citizenship were passed, it would just spark the same types of lawsuits currently being filed over the EO.
Will SCOTUS to do the bare minimum?
No matter what case or cases reach the Supreme Court, the real question is which version of the Roberts Court will prevail. Will it be the Roberts Court that gutted the Voting Rights Act, ended affirmative action, and routinely churns out decisions overturning major precedents? Or will it be the Roberts Court that occasionally pretends it has a spine and rules against Trump’s worst excesses?
Sen. Lindsey Graham, a big backer of ending birthright citizenship, told Meet the Press yesterday that he thinks there is a “good chance” the Supreme Court would uphold Trump’s executive order. Any such confidence, though, has to be based solely on the fact that this Court is dominated by hyper-conservative partisans whose values are aligned with Trump. There are no cases that support a ban on birthright citizenship. Unlike Roe v. Wade, the issue hasn’t been one that justices are routinely asked about during confirmation hearings, so it isn’t really possible to look at past statements to get a sense of how justices might rule.
The Trump administration’s arguments in favor of upending birthright citizenship are equal parts lazy and regressive. Since there’s no case law, the DOJ has fallen back on citing the ruminations of two Supreme Court justices, Joseph Story and Samuel Miller. Both wrote treatises in the 1800s discussing birthright citizenship, arguing that it shouldn’t apply to children born of non-citizens. But there are two big problems here, as Jay Willis notes over at Balls and Strikes. First, Story’s writings predate the Civil War, and Miller’s predate the decision in Wong Kim Ark. Next, these thoughts don’t appear in any court opinions and, therefore, hold no weight whatsoever.
DOJ lawyers also thought it would be a good idea to call into question the citizenship of Native American people, reaching back to a case from 1884, Elk v. Wilkins, where the Supreme Court held that Native people could not vote because their allegiance was to their tribes, not the United States. That was fixed, though, in 1924 when Congress passed the Indian Citizenship Act, so this argument requires you to just pretend that never happened.
It’s depressing that the only way to preserve the Constitution is to get a case in front of a Court that has been happily lawless and just hope it will rule correctly this time around. It’s a terrible roll of the dice, with each lawsuit representing a vehicle the Court could use to upend established law if they feel like it.
At the hearing in the Washington case, Judge Coughenour said, “I have been on the bench for over four decades. I can’t remember another case where the question presented was as clear.” Now we all have to cross our fingers and hope enough of the Court’s conservatives find that sort of backbone.
That’s it for today
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Thanks for reading.
If this Supreme Court backs Tump on denying children born in the USA of citizenship, then we'll know for sure that all their talk about taking a literal and originalist approach to what is actually in the constitution was a facade.
Public Notice is one of several sources of truthful news and analysis I subscribe to. It is good to know the truth. I wonder, however, how much it matters when supporters of Trump would never read these articles, let alone understand the content. The old expression, "singing to the choir," comes to mind. Maybe I'm just exhausted, especially when reminded thst in the end our country's future is in the hands of a Supreme Court, whose majority members' agenda is aligned with Trump and Project 2025.