Though you wouldn’t know it from his recent complaints following his rare loss in the tariffs case, the Supreme Court has been good to President Donald Trump.
But having granted him criminal immunity, helped him retake the White House and further empowered the presidency in his second term, the court is now confronting the latest Trump frontier in the birthright citizenship case.
At its core, the appeal in Trump v. Barbara asks whether the president can singlehandedly redefine American citizenship, despite the Constitution, law and precedent to the contrary.
“Blatantly unconstitutional” is what one federal judge called the executive order that sparked this litigation. Trump’s order, titled “Protecting the Meaning and Value of American Citizenship,” purports to end the long-held understanding of automatic citizenship for babies born in the United States regardless of their parents’ immigration status. Due to the administration’s series of lower court losses, the order hasn’t taken effect. If the high court continues that streak, it never will.
If it does take effect, then it will change the country.
The order says it only applies going forward, starting 30 days from its effective date. But on top of the chaos that alone would produce, applying to tens of thousands of children born each month, a brief from Democratic members of Congress told the justices that it would have even starker consequences than the administration has admitted.
If the justices endorse the government’s legal theory, then “millions of Americans will simply no longer meet the constitutional and statutory criteria for citizenship,” the members of Congress argued in an amicus brief. “Statutory law will therefore bar them from voting, securing passports, and more.”
So, what’s the administration’s legal argument that, if successful, could prompt such disarray?
The 14th Amendment, passed in the wake of the Civil War, says in relevant part, “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.”
The government argued the citizenship clause “was adopted to confer citizenship on the newly freed slaves and their children, not on the children of aliens who are temporarily present in the United States or of illegal aliens.” Homing in on the “subject to the jurisdiction thereof” language in the amendment, the government argued babies born to people unlawfully or temporarily in the country aren’t “subject to the jurisdiction” of the U.S.
But the challengers to Trump’s order, represented by the American Civil Liberties Union, argued the order attempts a “radical rewriting of the Fourteenth Amendment.” They maintained the amendment “guarantees citizenship to all persons born in the United States, subject only to common-law exceptions for foreign sovereigns, ambassadors, warships, and occupying armies, and the uniquely American exception of children born into Native American Tribes, reflecting the sovereignty of those Tribes.”
They said the matter was already settled by the high court more than 100 years ago, in an 1898 case called Wong Kim Ark, which, they said, “recognized the citizenship of U.S.-born children of virtually all foreign nationals.” The challengers said that precedent “conclusively disposes of the government’s arguments, then and now.”
Wednesday’s hearing may reveal whether the court views it that way.
The litigation has already been before the court, sort of, in a case last term called Trump v. CASA. That case, however, was about the scope of nationwide injunctions, not the underlying merits of Trump’s order. Notably in the CASA case, the administration didn’t press the justices to rule on the merits of Trump’s order, even though it hasn’t been shy about seeking speedy relief on an array of issues in Trump’s second term.
Dissenting in CASA, Justice Sonia Sotomayor wrote for the court’s Democratic appointees that it was “obvious” why the government wasn’t asking the court to fully lift the blocks on the order.
“To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice,” she wrote.
“Impossible” is a strong word. But the court would send an equally strong message to the administration with a unanimous rebuke of Trump’s order on the merits. Despite the strength of the challengers’ arguments, that unanimity is difficult to envision at this court. Whatever happens at the hearing, we should have a ruling by early July.
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