Among the many executive orders that Trump signed on Monday was the “Protecting the Meaning and Value of American Citizenship” order. Who wouldn’t want that?
In short, the order violates the 14th amendment by restricting birthright citizenship – it orders that children born within the United States from parents who are either illegal or temporarily allowed to reside within the US will not be granted citizenship.
The order has so far been sued by 22 states and several civil rights organizations. This legal fight is expected to rise through federal courts, all the way to the Supreme Court. Many are understandably concerned about our highly conservative Supreme Court ruling on the issue given how they’ve ruled in the past, particularly in Dobbs v. Jackson Women’s Health Organization where they overturned the federal right to abortion.
Several decisions handed down by our current Supreme Court seem to break significantly from the long established expectations of respect for precedent and a respect for the firmly established meaning of particular laws.
So, while in years past we would have been able to make predictions with a reasonable degree of confidence about how the court would rule on the constitutionality of revoking this aspect of birthright citizenship – given all the supporting precedent and the established meaning of the 14th amendment – this is clearly no longer the case.
Trump’s lawyers have responded to the lawsuit in a Seattle federal court, defending the constitutionality of the order on the grounds that children born on US soil from illegal immigrants are not “subject to the jurisdiction of the United States.” The 14th amendment clarifies that individuals must be subject to US jurisdiction to have citizenship.
Being “subject to a jurisdiction” means that the laws and court rulings of a government apply to an individual – in most cases, this is met by merely being within the territory of the United States. Examples of categories of persons who would not be subject to the jurisdiction of the US include foreign diplomats and their children, even if the children are born in the US.
The Supreme Court itself has ruled on this sort of argument on multiple occasions, with the earliest example dating back to 1898 in the case of United States v. Wong Kim Ark where they confirmed that children of illegal immigrants born in the US are subject to the jurisdiction, qualify for birthright citizenship, and that a denial of their citizenship would be a violation of the 14th amendment.
The Constitution is filled with ambiguous language, but in this case, it simply could not be more clear. It plainly states that those born within the US and are subject to its laws are citizens. The jurisdiction issue has also been reaffirmed multiple times by courts, including instances where states like Texas have attempted to charge tuition for children living in the country illegally under the Equal Protection Clause of the 14th amendment.
For years, conservatives have also been laying the groundwork for a different kind of argument in favor of Trump’s executive order. For years, Trump and friends have been shouting at us about the “invasion” of illegals that is happening at the border with Mexico. In January of last year, Texas Governor Greg Abbott attempted to take over the federal government’s job of protecting the Texan border by declaring that Texas was actively suffering an invasion.
As it turns out, another exception to the birthright citizenship guaranteed by the 14th amendment is children born of individuals in an invading army – a sensible exception of course. But it also provides an avenue for Trump to exploit. The question of whether illegal immigration counts as an “invasion” can be thought about in two different ways: does it seem like an invasion on the face of it and does it qualify as an invasion under the legal definition? For a reasonable person, it fails on both counts.
On the face of it, it’s difficult to discern how it could possibly be thought of as an invading army. It must be the most pathetic excuse for an invading army ever seen – they forgot to bring their guns, these battle-hardened commandos are all from different countries, and instead of pillaging, they start selling tacos.
Legally speaking, the Invasion Clause of Article IV of the Constitution authorizes states to “engage in war” in response to an invasion. As noted by the Cato Institute, “That suggests an ‘invasion’ must be the kind of organized assault that would normally justify full-scale war in response, including sending troops to attack and occupy the country from which the invasion originated.” James Madison himself, one of our founding fathers, clarified that this is the correct interpretation – perhaps something for our staunchly originalist justices to consider.
It’s clear that if the Supreme Court were to rule in favor of Trump, they would have no legal leg to stand on. They would be fundamentally failing at their jobs and would be providing further evidence that they are nothing more than political puppets.
Rafael Perez is a columnist for the Southern California News Group. He is a doctoral candidate in philosophy at the University of Rochester. You can reach him at rafaelperezocregister@gmail.com.