On Wednesday, the Supreme Court will have the opportunity to hear oral arguments on a case which turns directly on the question of birthright citizenship. Specifically, the Court will determine whether the Fourteenth Amendment’s naturalization provision, which states “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” mandates an automatic grant of citizenship upon anyone, including the children of illegal aliens, born on U.S. soil – or if the clause, more sensibly read, applies to children born of citizens only (with limited exceptions). The case, which is being filed under the name Trump v. Barbara, is one of potentially groundbreaking import – poised to be potentially among the most important decisions, with far-reaching political ramifications, in generations.
The case arose in the aftermath of the Trump administration’s adoption of Executive Order No. 14,160 (“Protecting the Meaning and Value of American Citizenship”), which was issued on the first day of the President’s second term in January of last year. Immediately, that executive order was challenged by liberal-leaning district courts, resulting in a nationwide preliminary injunction which never allowed the order to go into effect. Last year, in the case Trump v. CASA, the Supreme Court ruled in a 6-3 judgment split along party lines that nationwide injunctions, at least tailored to the kind of policy underlying this particular EO, were unconstitutional. In that regard, the Court struck down part of a legal stopgap which indirectly affected the policy of birthright citizenship without having to confront the underlying issue on the merits head on. This hedge strategy has been typical of the Roberts
Court, which, despite having a putative Republican-majority, has chosen to repeatedly avoid addressing what it considers “hard-charging” or “politically controversial” questions on the merits. The politics underlying this strategy are interesting: though conservatives have a hard-lock on the Supreme Court for the first time in decades, they have generally shirked from “rocking the boat” on major policy questions.
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