Dem
47
GOP
53
It's kind of the script these days, isn't it? When control of the White House passes from one political party to the other, the president from the party that is now in power immediately fires off a bunch of executive orders as soon as he takes office. Meanwhile, AGs from states controlled by the other party immediately file a bunch of lawsuits. Of course, with Donald Trump—who loves both XOs AND pushing the limits of his powers—this tendency is magnified.
And so it is that, less than 24 hours into Trump presidency v2.0., there are now three lawsuits challenging his executive order on birthright citizenship. The lawsuits are the work of 22 state AGs, as well as lawyers working for the cities of Washington, D.C., and San Francisco, and lawyers working for the ACLU. Eighteen of the AGs and the two cities filed in Massachusetts, the ACLU filed in New Hampshire, and the other 4 AGs filed in Washington state. That's the First and Ninth circuits, which are generally regarded as two of the most liberal federal court circuits. Texas AG Ken Paxton isn't the only one who knows about venue shopping.
When we wrote about this subject yesterday, we had to be a little brief, due to time and length constraints. Today, a bit more nuance. As many readers will know, throughout the eighteenth and nineteenth centuries, Americans operated under the assumption that citizenship conveyed to (nearly) everyone born in the United States. In 1868, the Fourteenth Amendment made that considerably more concrete, establishing 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." This was specifically meant to correct for the Dred Scott decision of 1857, which said that Black people, even if born in the United States, were NOT citizens.
Following the general understanding of the antebellum era, and the text of the Fourteenth Amendment, the third and final piece of the birthright citizenship puzzle is the 1898 case United States v. Wong Kim Ark. Wong was born in San Francisco, and left the United States on a couple of occasions after the passage of the Chinese Exclusion Act of 1882. On one of those occasions, he was denied re-entry, and sued on the basis that he was a citizen by virtue of having been born in San Francisco. The Supreme Court found in his favor, by a margin of 6-2 (the ninth justice, Joseph McKenna, could not be present for oral arguments, and so did not participate in the decision).
The crux of the case, which is very likely to be very relevant in the immediate future, was five words in the Citizenship Clause of the Fourteenth Amendment: "subject to the jurisdiction thereof." It is clear that the intent of this was to exclude the children of diplomats and other representatives of foreign governments. However, the two dissenting judges embraced a much broader reading of the phrase, deciding that it limited the grant of citizenship only to children who were/are SOLELY subject to the jurisdiction of the U.S. government. In other words, if a child is born in the U.S., but receives citizenship from some other country upon their birth (say, both parents are British), then—goes the argument—they are born subject to the jurisdiction of that other country (in this case, the U.K.), and so are not born subject to the jurisdiction of the U.S. government. Ipso facto, U.S. citizenship does not convey.
The point here is that birthright citizenship, as currently understood, depends on a 127-year-old Supreme Court interpretation of a 157-year-old passage in the Constitution. That interpretation is well supported by evidence (including the spoken and written words of those who wrote the Fourteenth Amendment), and stare decisis should mean that the interpretation that has prevailed for more than a century should be controlling, barring some major new development. However, the abortion issue showed very clearly what this Supreme Court thinks of stare decisis.
The point here is that the plaintiffs in the three lawsuits—which will presumably be consolidated, and which will surely end up at the Supreme Court—should prevail easily. But you can't be certain. And there are at least two dynamics worth noting. The first is the obvious one: If five of the six conservatives on the Court are opposed to birthright citizenship, then those five are likely to get to the result they want, no matter how much they have to twist themselves into legal pretzels in order to do so.
If you had to guess, you'd guess that Associate Justices Clarence Thomas, Neil Gorsuch and Samuel Alito are opposed to birthright citizenship, Associate Justice Brett Kavanaugh is a leaner, and that Chief Justice John Roberts and Associate Justice Amy Coney Barrett are OK with U.S. v. Kim Wong Ark. If so, then that would be 2 right-leaning votes against Trump's position. Add in the three liberals, and the XO goes down to defeat.
But, as we note, the letter of the law is not the only dynamic here. Donald Trump is feeling very much above the law right now, in sizable part because this very Supreme Court told him he could feel that way. He is also very committed to getting rid of birthright citizenship. If the Supreme Court says "you can't do it, Mr. Trump," he might well channel his inner Andrew Jackson, and respond with "John Roberts has his decision, now let him enforce it." That would be a huge embarrassment to SCOTUS, and would lay bare that they have ceded much of their power and their moral authority. So, it's possible that two of three (or three of three) among Kavanaugh, Barrett and Roberts will give Trump the decision he wants, just to save face.
On the other hand, if the textualists on the Court insist on following the actual words in the Constitution and rule that the XO is null and void and Trump continues to enforce the XO anyway, Trump's lawlessness could become a campaign issue for the Democrats in 2026 ("Give us the House and Senate so we can impeach and convict him"). If the Democrats then win the House, and remember they picked up 41 seats in 2018, they are likely to impeach him for disobeying the Supreme Court.
The upshot is that it is clear how this story SHOULD end. But how it actually WILL end is a big question mark. (Z)