No, Trump Did Not Just Win on Birthright Citizenship

Anyone who reads these posts knows that generally when I write about our current roster of Supreme Court justices, I first fill my pen with acid. This time, however, I am forced—to a degree—to defend a ruling that has outraged the left: the Court’s refusal to allow district court judges unlimited power to initiate national injunctions.

It is first necessary to point out that this decision was NOT about birthright citizenship, which some of the conservative justices took pains to make clear. There were strong indications during the oral arguments that the Court is unlikely to take Trump’s side when the actual case comes before it next term. This remains unchanged. Even Neil Gorsuch seemed highly skeptical of the administration’s position and, without him, Trump has no chance.

Nor will an originalist argument hold up to scrutiny. As I pointed out in a previous post, birthright citizenship—for whites anyway—has been the rule since the Constitution was written, de facto until 1868, de jure afterward. That will likely not sway those honorable originalists, Thomas and Alito, but convincing another three justices to ignore the nation’s entire history seems a tall order, even for this Court.

Next, both Kavanaugh and Barrett provided specific conditions under which the national injunction could be reinstated and gave those opposed to the executive order thirty days to do it. I feel certain that attorneys general in dozens of states took heed and are drafting motions right now.

A cornerstone of these new appeals is sure to be that voiding birthright citizenship in advance of a definitive ruling from the Court, particularly if it is done in some states but not in others, will create total chaos. It will require either national, state, or local officials to record every birth with a background check on not only the mother, but also the father, who might not be present or even be known. And how are hospital personnel supposed to perform these checks? Or does the Trump administration propose to place an ICE officer in every location in America where a woman can give birth?

As a result, since refusing to deliver a baby because the mother lacks sufficient identification would violate medical ethics, even for right-wing doctors, complying with the executive order would mean turning maternity wards into enforcement facilities. Complicating what seems this already unworkable scenario is that since district court judges can still issue injunctions in their own jurisdictions, many states will simply refuse to enforce the executive order until the matter is actually adjudicated. That means that until there is a ruling, a baby born in California will be a citizen, but one born in, say, Alabama will not be.

Also, as Trump’s order applies not only to children of those here illegally but also to parents in the United States on temporary visas, any child born to, say, an Indian couple where the husband is a mechanical engineer and the wife a molecular biologist will be denied citizenship as well. Yes, those are Usha Vance’s parents, but since the order is not retroactive but only applies to babies born after February 19, she would not have her citizenship revoked.

But that leads to another problem for Trump’s lawyers. Whether or not the Fourteenth Amendment grants birthright citizenship is a yes or no question, and not time related. If the answer is no, then Usha Vance is not now nor has she ever been a United States citizen. Nor is Marco Rubio. If the answer is yes, they have no case. Donald Trump may think he can rewrite Constitutional amendments but, although he would disagree, even he cannot turn them on and off like a light switch. The arbitrary date when the Fourteenth Amendment’s meaning changes will surely be pointed out when motions to restore the national injunction are presented.

Another problem with the arbitrary date is that as these children grow up and come under the scrutiny of the authorities, we can expect an avalanche of phony or doctored birth certificates, the sort of thing that is done now to make overage baseball players eligible for little league. These falsified records will be a boon to criminals and will hardly make the nation safer.

That brings us to the decision itself. The three dissenting liberal justices insisted that depriving district court judges of the right to issue injunctions that apply nationally will allow Trump, among others, to simply bypass Constitutional guarantees in amenable jurisdictions and perhaps nationwide as well. While this is a risk to be sure, the flip side is that conservative judges are also enjoined from issuing national injunctions, which many have tried to do and others would have done before this ruling. Matthew Kacsmaryk, an ultra-right federal judge in Texas, attempted to block national distribution of mifepristone, but was eventually overruled. He is hardly an exception. When one considers which side is more likely to employ a tactic that violates the spirit of the law but sneaks by through a technicality or contorting language, it is hard not to postulate that it would be the right.

While the Court may have shifted the guardrails from district court to circuit court and perhaps to itself, it is unclear whether it has strengthened or weakened them. This Supreme Court has been extremely selective in deciding whose rights they choose to protect. Still, the risk of abuse is unchanged. The Court was always the final arbiter so a national injunction that they looked on unfavorably would have been lifted anyway. This decision only changes the time frame.

In the end, we have not moved from where we were—an uncertain reliance on the judiciary to uphold genuine American values, not those concocted by Trump and the far right. For birthright citizenship at least, despite Friday’s ruling, the Supreme Court is likely to do so.