What is the Deal with Birthright Citizenship?
A quick discussion of the oral argument from last week.
Happy Friday my beautiful babies. I was going to give you this a little bit earlier so I could enjoy my Memorial Day weekend more thoroughly (read: Throwing my weight behind a few beers whilst mowing the lawn), but I actually liked how this turned out better. I waited until today (Thursday) to see if the Supreme Court would drop an opinion in the birthright citizenship case, and (unsurprisingly) they did not. But the oral argument was super interesting and I wanted to give a quick summary.
To get the very easy part out of the way: I think a lot of people (including me) were worried that the Supreme Court would offer a completely insane take on birthright citizenship and essentially say it is unconstitutional. I think the oral argument made it pretty clear that there is universal opposition to that argument, to the point where it may not even get a single vote. So, if you were worried about that and were unconcerned about anything else, you can stop reading this Jackal.
Wait. What? I thought this case was about birthright citizenship.
The case is about birthright citizenship, and it is also a little sort of maybe possibly not about birthright citizenship. And based on the questions from the justices during oral argument, it is really clear that they are leaning very heavily towards “not.” In my original post about the case,1 I said that there was actually a narrow issue before the Court, and that they may only answer that question. It seems like they are actually leaning that way.
That narrow question surrounds National Injunctions,™ and the extent to which they are constitutional or appropriate. What happened in this case was that Donald Trump signed his executive order terminating birthright citizenship, and then a few states brought a legal challenge. They essentially said that they would be damaged by Trump’s executive order because they’d have no idea who was and who was not a citizen in their own states.2
They brought this before a District Court judge and the judge essentially said they were right and barred the enforcement of Trump’s executive order throughout the country. When the Trump Administration brought this to SCOTUS, they did not even try to argue their position on the merits (saying that they think birthright citizenship is barred by the 14th Amendment),3 but instead simply just asked for SCOTUS to stop the nationwide injunction. And the Trump Administration may have a point that nationwide injunctions are bad.
Wat.
When SCOTUS took the case, I was a little worried because even if you think nationwide injunctions are bad overall (I lean that way), this case actually presents a very strong argument for why they are good. Picture this: If there wasn’t a nationwide injunction in this case, children who were born to parents in states like Texas, Florida, Tennessee, etc., wouldn’t be issued Social Security numbers until the skin color legal status of their parents was verified.
That is just pure chaos waiting to unfold. What would have to happen (if SCOTUS sides with the Trump Administration) is that anyone affected by Trump’s executive order would be forced to file a lawsuit, claim an injury under the law, and take it to their local District Court. That’s pretty wild and would lead to a lot of issues.
During oral argument, Justice Elena Kagan correctly identified why this would be so chaotic: The Trump Administration could (conceivably) never try to argue this case on the merits, and would instead continue to deny people citizenship until they filed a lawsuit and won. Kagan correctly pointed out that anyone who couldn’t afford to hire a lawyer would lose out on something that is clearly constitutionally guaranteed to them.
After she skewered Trump’s Solicitor General, John Sauer (who is usually excellent in front of SCOTUS but struggled here because he was dealt a bad hand), Justice Neil Gorsuch chimed in and said she had asked all the same questions he wanted to ask, while also echoing a lot of Justice Sonia Sotomayor’s points. Sauer got a similar skewering from Justices Kenji Brown-Jackson and Brett Kavanaugh.
Kagan also didn’t mention it, but I had my own take on what would cause even more chaos than I think the court is anticipating: Forged birth certificates. If Trump’s executive order is allowed to go into effect, you will see a whole host of people simply say that the actual parent of a child born to illegal immigrants is someone (a relative or friend) who is a citizen. What is the hospital going to do, check the DNA?
This would create insane chaos down the road, and I don’t think even Kagan foresaw how that could upend our system for years (although I think Kavanaugh’s questioning leaned in that direction).
Whoa.
Whoa indeed. Justice Gorsuch was the biggest surprise to me, because he somewhat infamously hates nationwide injunctions, and even he was skeptical of the government’s position in this case. The criticism of them overall is fair; liberals are also a little hypocritical about nationwide injunctions when it comes to issues they like. To wit, they disliked the nationwide ruling from a Texas District Court, which enacted a ban on the sale of mifepristone, the “abortion pill,” but now they think nationwide injunctions are good in this case (that ban was later suspended by a Circuit Court).
But my overall takeaway from the oral argument was that all the justices expressed skepticism of the Administration’s position precisely because the underlying argument is so blatantly unconstitutional. Maybe they do want to rein in the use of nationwide injunctions by District Courts (and lots of legal scholars from conservative and liberal wings agree), but this case is the worst vehicle for it. I do think the Administration assumed it would be a good vehicle, because they thought they wouldn’t have to worry about the underlying issue. But SCOTUS really didn’t seem keen on letting them take that position.
OK, so tell us what’s going to happen.
Before I do that, I do want to say that the justices were all excellent. Kavanaugh asked great questions, Sotomayor was relentless, and Kagan was typically very smart. Justice Amy Coney Barrett also had a few very good moments, and Thomas only asked one or two questions but they very poignant.
Despite this, I still think there is a scenario where they side with the Administration and chaos ensues. I am with them when they say they should limit nationwide injunctions,4 but I think this case presents possibly the best argument for their utility.
There is also a (very unlikely) scenario where they ask for a supplemental briefing on the merits of the case and ultimately use that to say, “We think nationwide injunctions are bad but there is no evidence that the Administration would succeed on the merits in this case, so we are keeping this one in place.”
Overall, if you are a believer in birthright citizenship, you can breathe a little easier. During oral argument, Kagan pointed out that the Administration was losing repeatedly on the merits of the case and then said, “You are not going to win.” She would not be saying that if she was at all worried that the conservatives were going to read the Constitution differently.
Cherish the small victories in these increasingly dogshit times.
Have a great Memorial Day. I’ll see you in two weeks, unless they drop a decision in this case before then!
It is officially called Trump v. CASA. Funnily enough, CASA is one of those groups that previously used an acronym for their name but then officially changed it to the initials, like AARP or YOLO.
This may not be the case for it, but Justice Clarence Thomas has expressed skepticism of “associational standing,” which is what is basically happening here. He basically says that just because New Jersey says they have standing, it doesn’t mean Maryland can jump in too and say they have standing for the same reasons. He may be right about that overall, but no one made any comments about it at oral argument, including himself.
I keep using this phrase that birthright citizenship would be “barred,” which some Trump supporters would take issue with because the executive order only bars birthright citizenship going forward. In other words, current grown adults who were born to illegal or non-citizen immigrants would retain their citizenship. But I was not born yesterday: If the executive order is constitutional, then it logically applies retroactively too and the Trump Administration will interpret it that way.
I should note here that KBJ likes them.