Does Trump Get To Decide Who Is An American?

The stakes are high, even though the Supreme Court won't be deciding, at least not yet, whether Trump's order to end birthright citizenship is constitutional.

Tomorrow, the Supreme Court will hear oral argument in the Birthright Citizenship Case, Trump v. Casa, Inc. We’re here because Donald Trump is intent on usurping as much of the power of government as he can into his own hands. And what is more fundamental than assigning citizenship? We know that Trump wants people from Mexico, Central America, South America, the Middle East, and Asia out of the country. But he’s okay with white Afrikaners from South Africa, even willing to bring them in, give them benefits, and put them on a fast track to citizenship. Deporting people to gulags in El Salvador and abducting students and others from their neighborhoods are part and parcel of this. Trump is, quite literally, trying to define the complexion of America.

Tomorrow morning, the Supreme Court takes up three cases consolidated as Trump v. CASA, Inc. I wrote to you about the case Sunday evening. It’s notable because although we call this the “birthright citizenship case,” the Court will not be considering whether Trump’s use of an executive order to strike it from the Constitution will pass muster. If you missed the newsletter on Sunday, it explains they will be considering whether a federal district judge in one district can issue an injunction that is binding on the entire country.

Even though the issue in front of the Supreme Court tomorrow isn’t whether Donald Trump can do away with birthright citizenship, it’s worth our time to consider that underlying issue ahead of tomorrow’s oral argument. It may well come up in questioning; we may even get hints about how one or more judges are leaning. It’s also important to consider the context tomorrow, the reason these parties are in front of the Supreme Court in this case. They’re there because Donald Trump thinks he, and he alone, can walk beyond the boundaries set by our Constitution and our laws and reshape the country in his own image. Last night we discussed the Supreme Court’s tolerance for Donald Trump right up to the point where the security of federal judges is at stake. Tomorrow, we may learn about their patience with his abandonment of the pretense of caring about the rule of law when it interferes with policies he wants to put in place, or really, as we watch him operate, deals that he wants to do.

The 14th Amendment to the United States Constitution provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” It’s the source of “birthright citizenship,” which makes anyone born on U.S. soil, regardless of the immigration status of their parents, a citizen.

So how does Trump get around that? His lawyers have seized on some of the language in the amendment, “and subject to the jurisdiction thereof.” It has historically been used to carve out limited exceptions to birthright citizenship, like the one for children of foreign diplomats who are born while their parents are working in the United States. Because diplomats and their families are not “subject to” U.S. jurisdiction and have immunity from criminal prosecution and even civil suits for official acts, their children, even if born here, do not become U.S. citizens. The exception has been narrowly construed since the provision was adopted. Donald Trump’s effort to excise it from the Constitution is inconsistent with our history and tradition in this regard.

Congress ratified the 14th Amendment in July 1868 after the Civil War ended, ensuring that birthright citizenship would protect former slaves and their children by granting them U.S. citizenship. Before that, the Supreme Court had ruled in the notorious 1857 Dred Scott decision that enslaved people and their descendants were not citizens, were not eligible to become citizens, and were not entitled to any protection under U.S. laws. The 13th and 14th Amendments overruled Dred Scott, and the promise of automatic citizenship they carry for those born in this country has endured. It has been applied for 155 years and counting, including by the Supreme Court, without regard to the parents’ immigration status. The 14^th Amendment prohibits states from overriding the privileges it provides, in this case citizenship, or from enforcing laws that would revoke birthright citizenship.

According to Donald Trump, “We’re going to end that because it’s ridiculous.” That’s what he told NBC’s Kristen Welker during an interview for “Meet the Press.” But his executive order doing away with birthright citizenship is inconsistent with the plain language of the 14^th Amendment, which the Supreme Court has always interpreted as doing precisely what its language suggests: guaranteeing citizenship to people born in this country.

Trump himself has given away much of the game by bringing Afrikaners, white South Africans who will receive refugee status and a fast track toward citizenship, into the country while others fleeing persecution and war are being rejected. The racism is transparent. There is no evidence to support Trump’s claims that Afrikaners’ land is being taken away from them by South Africa’s majority Black government.

Now it’s up to the Supreme Court. Tomorrow, they’ll consider the nationwide injunction issue in this case, but it will inevitably be back for them to make the call about whether Trump can undo the law, even after taking an oath to uphold it. For seven of the Justices, that should be a bridge too far, but it’s hard to predict anything with this Court. We may have a better sense after tomorrow’s argument.

Thanks for being here and for reading Civil Discourse. The stakes are high right now. Understanding the law—and what is being done in its name—has never mattered more. If you can, I hope you’ll support Civil Discourse with a paid subscription and help keep the truth in plain sight.

We’re in this together,

Joyce