Dem
47
GOP
53
The Fourteenth Amendment begins with the text: "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." It seems fairly straightforward except for the "subject to the jurisdiction thereof" part, which was intended to exclude Natives living on reservations and the children of foreign diplomats born on U.S. soil. The Indian Citizenship Act of 1924 made Native Americans living on reservations citizens, so now only foreign diplomats' children are excluded. Note that there is no requirement about the nationality or immigration status of a baby's parents. If you are born on U.S. soil, you are a citizen. Since he is not a constitutional scholar, Donald Trump doesn't know this and signed an XO stating that babies born to undocumented immigrants are not citizens. Of course there were court cases instantly.
The lower courts have been unanimous is ruling that the XO is unconstitutional. The first case to make it to an appeals court was in the Ninth Circuit, headquartered in San Francisco. In July, Judge Ronald Gould, a Bill Clinton appointee, wrote for the majority: "One power that the President was not granted, by Article II or by any other source, is the power to modify or change any clause of the United States Constitution." That seems pretty clear.
Now the First Circuit Court, in Boston, has chimed in. On Friday, a three-judge panel issued a 100-page ruling basically saying the same thing Gould said in one sentence. However, U.S. Circuit Judge David Barron, a Barack Obama appointee who graduated magna cum laude from the Harvard Law School and who wrote the opinion, specifically noted that the length of the opinion should not be mistaken for a sign that the fundamental question was difficult. He wrote: "It is not, which may explain why it has been more than a century since a branch of our government has made as concerted an effort as the Executive Branch now makes to deny Americans their birthright." The other two judges, both Democratic appointees, agreed with him.
The case will certainly be appealed to the Supreme Court. Everything is. A birthright citizenship case made it to the Supreme Court earlier. The Court didn't rule on the actual issue before it then. Instead it took the opportunity to ban district judges from issuing nationwide injunctions. Most of those have followed the same pattern. Trump issues an XO that is patently illegal or unconstitutional. Somebody sues. Then a district judge enjoins the administration from carrying out its illegal order until the case can be decided on the merits.
Once in a very rare while it goes the other way, as when anti-abortion groups brought a case in Amarillo, where they got Judge Matthew Kacsmaryk (because he is the only judge there) to suspend the FDA approval of mifepristone. His ruling was later overturned.
When two circuit courts make contradictory rulings, the Supreme Court usually takes the case to make a single nationwide ruling. The First and Ninth Circuit rulings are the same (except one is a wee bit longer than the other), so the Court doesn't have to take up the case. However, the XO so blatantly contradicts the words in the Constitution, it has decided to do so anyway. (V)