If you’ve been worried that this Supreme Court might give President Donald Trump the power to strip Americans of their citizenship, you can go ahead and vent.
On Wednesday, the Supreme Court heard oral arguments Trump vs. Barbaraopposing case executive order Trump issued on his first day in office, which aims to strip citizenship of children born to undocumented immigrants and from many people who are in the United States legally but who are not yet authorized to remain here permanently.
There is there is no valid argument that Trump’s executive order is constitutional. The Fourteenth Amendment to the Constitution states that “all persons” born in the United States are citizens, with one exception that does not apply to Barbara. Just three days after the executive order was issued, a federal judge appointed by Reagan blocked it – after saying that he “has been on the bench for over four decades” and that “I cannot recall another case where the question presented is as clear as this one.”
Trump’s order has never been implemented due to lower court orders against it. Many of those orders depended on it United States v. Wong Kim Ark (1898), a Supreme Court case that rejected a similar effort to restrict who could become a U.S. citizen nearly 130 years ago.
Still, Trump undoubtedly bet that this Court – which has a 6-3 Republican supermajority that previously issued the decision. Trump is allowed to use the power of the presidency to commit crimes – he would ignore the text of the Constitution and Wong Kim Ark and decide Barbara The case is based only on their loyalty on his part to him.
Wednesday’s oral argument, however, left little doubt that Trump made the wrong bet. Of the nine judges, only Judge Samuel Alito, of the Court the most trusted member of the cause of the Republican Partyappeared to be a certain vote for Trump — even though Justice Clarence Thomas asked controversial questions and may join Alito in dissent. That leaves seven justices who seem to believe that Trump cannot simply erase the text of the Fourteenth Amendment by executive order.
Trump’s legal arguments in Barbara they are appropriate
The Barbara the case turns on the meaning of one word – “jurisdiction” – which appears in the first sentence of the Fourteenth Amendment: “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 in which they reside.”
A person is “under the jurisdiction” of a nation if they are bound by its laws. So, if Trump was right that other children of immigrants are it is not under US jurisdiction, it would mean that the federal government had no power to deport them – even if they were in this country illegally. It would also mean that the US had no power to arrest them if they robbed a bank.
As the Court explained many years ago Wong Kim Arkthere are, in fact, some infants who are born in the United States but not under its jurisdiction. When the Fourteenth Amendment was ratified, the most important exemption to the birthright citizenship law applied to citizens of American Indian tribes who were born on tribal lands – because those lands were considered a separate nation from the United States. But, in 1924, Congress it granted citizenship to all natural born people in the United States.
Today, the Fourteenth Amendment’s “subordinate jurisdiction” rule essentially excludes the children of foreign ambassadors and similar foreign officials from US citizenship, because the families of diplomats often enjoy diplomatic immunity from US law.
Trump’s attempt to expand this “under jurisdiction” exception to include the children of undocumented immigrants and people here temporarily received a chilly reception from nearly all of the justices. After US Attorney General John Sauer tried to argue that Wong Kim Ark actually supports Trump’s position, for example, Justice Neil Gorsuch jokingly replied, “I’m not sure how much you want to rely on. Wong Kim Ark.“
Likewise, after Sauer claimed that we live in a new world where pregnant foreign nationals are required to enter the United States to ensure that their child will become an American citizen, Chief Justice John Roberts responded that “It’s a new world; it’s the same Constitution.”
Judge Brett Kavanaugh, meanwhile, asked several questions suggesting he had already decided to rule against Trump and was just trying to determine the legal basis for that decision. At one point, he asked Cecillia Wang, an ACLU lawyer who advocates for birthright citizenship, whether the Court should rule against Trump based on a 20th-century law that also protects birthright citizenship. At another point, he noted that Trump’s lawyers are not asking the Court to overturn it Wong Kim Arkso he suggested that the Court could issue a very brief opinion confirming the lower courts and citing the 1898 case.
For her part, Judge Amy Coney Barrett issued a rational hypothesis that exposes the confusion in Sauer’s legal argument. Sauer said that the children of immigrants who are “homeless” in the United States — meaning they did not intend to remain here indefinitely — are not citizens. But Sauer also acknowledges that the Fourteenth Amendment was intended to extend citizenship to freed enslaved people during the Civil War.
Thus, Barrett asked about a slave who was brought to the United States against their will, who always considered himself a captive, and who did not intend to remain in the United States. Under Sauer’s “residence” law, he said, this person could not be a citizen even though Sauer concedes that the Fourteenth Amendment granted citizenship to freed slaves.
These four Republican justices, along with the Court’s three Democrats, appear likely to be reconfirmed Wong Kim Ark and declared Trump’s executive order unconstitutional. It seems that it is still possible for Trump to do something that is so clearly illegal that even this Supreme Court will rule against him.
