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| (Wall Street Journal) |
Birthright citizenship, enshrined in the 14th Amendment to the U.S. Constitution in 1868, and upheld 30 years later by the U.S. Supreme Court in U.S. v. Wong Kim Ark (1898), has been under attack since day one of Donald Trump's second term. The current high court, with its conservative majority that has been willing to ignore or bend precedent in order to side with Trump, gave their hero a stinging loss yesterday -- ruling, in so many words, that a bedrock constitutional right cannot be overturned by executive order. That doesn't mean, however, that Trump and the loyalists he has installed throughout the government won't continue to chip away at the 14th Amendment.
The bigger issue flowing from Trump v. Barbara, U.S. Sup. Ct., 2026 might be this: The ruling provides the latest evidence that we are stuck with a partisan Supreme Court that is more loyal to partisan politics than to the rule of law. That is from Robert Reich, former labor secretary under Bill Clinton and longtime professor of public policy at the University of California Berkeley, who says the closeness of the Barbara ruling is a sign that some members of SCOTUS are "bonkers." That is the relatively kind word Reich uses. I would use the term "crooks," as in the kind of lowlifes who need to be investigated for bribery, possible ties to extortion (perhaps as targets of blackmailers), and old-fashioned violation of their oaths -- and perhaps much more, meaning they should face serious repercussions, including impeachment, criminal prosecution (and if convicted in court) time behind bars.
Reich analyses outgrowths from the Barbara ruling -- some hopeful, some deeply alarming -- at his Substack page, under the headline "Born in the U.S.A.; the Supreme Court did the right thing, but four justices are dangerously off their rockers":
Today, the Supreme Court struck down Trump’s Day One executive order canceling the right to birthright citizenship. Good. That executive order declared that children born in the U.S. would not be considered citizens if their parents were living in the country illegally or were visiting the country on temporary visas.
The executive order never took effect. It was quickly blocked by multiple lower courts because it appeared to directly conflict with the 14th Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The Trump regime appealed the lower-court rulings, contending that the 14th Amendment’s citizenship provision had been misunderstood for more than a century. The administration argued that the drafters of the amendment were focused on guaranteeing citizenship for the children of former slaves—and that the amendment was never intended to extend citizenship to the children of people who weren’t living in the country legally.
Trump and his Solicitor General, who argued this case before the Court, also said that narrowing birthright citizenship was necessary to prevent “birth tourism”—the practice of immigrants coming to the U.S. to give birth here and obtain citizenship for their child.
Birthright Citizenship has been in Trump's crosshairs from the moment he entered electoral politics in 2015. For a politician who has made it clear he wants an electorate that is more white, more moneyed, more conservative, and more prone to show cult-like zeal, this was a lodestar issue, one Trump was anxious to push and use to his advantage. Many experts suggested he had almost zero chance of success with the high court -- and, in fact, John Roberts & Co. rejected the president's entreaties yesterday. But that might just mean that Trump has to fight around the edges, rather than undertaking a full-frontal assault. Reich writes:
Trump has been vowing to try to change the law since entering politics in 2015, arguing the 14th Amendment was written specifically to enshrine the rights of freed slaves. His critics have countered that it was always designed to apply to the children of immigrants too. An 1898 Supreme Court decision confirmed that U.S.-born children of immigrant parents are entitled to American citizenship.
Today, Chief Justice John Roberts wrote that the deeply-rooted understanding that virtually everyone born on American soil is automatically a U.S. citizen was enshrined in the Constitution with the passage of the 14th Amendment in in 1868: “Citizenship, then and now, was the right to have rights—to freely participate in our political community,” Roberts wrote. “The Framers of the Fourteenth Amendment extended that promise to every free-born person in this land. We keep that promise today.”
The ruling issued yesterday in Trump v. Barbara was 194 pages long. But the issues boiled down to this simple maxim: You cannot amend the Constitution of the United States by executive fiat. A commentary from the American Civil Liberties Union (ACLU) explains why executive orders have limitations when going up against federal and constitutional law -- and it outlines the arduous process involved in making a serious attempt to amend the constitution.
Anyone with a modicum of legal knowledge could have told Trump that challenging the 14th Amendment by executive order was a fruitless endeavor that was sure to fail. Heather Cox Richardson summed up the landscape in her "Letters From an American" post yesterday. She wrote:
Today the Supreme Court under Chief Justice John Roberts upheld birthright citizenship. But, as Jonathan V. Last of The Bulwark notes, the Supreme Court should never have taken this case. The lower court judges who heard the case were appalled that the administration was attacking the clear terms of the Constitution. Judge John Coughenour, who was appointed by President Ronald Reagan, called Trump’s executive order “blatantly unconstitutional” and said: “I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is. This is a blatantly unconstitutional order.”
Given that Trump's experience via DOGE hinted that he was serious about reducing fraud and waste, one might have thought he would seek out expert advice and decide his time and effort could be better spent elsewhere. We now know, of course, that Trump is not really interested in attacking fraud and waste, and he does not listen to anyone. So he forged ahead, knowing his legion of MAGA lawyers was being funded by American taxpayers, folks like you and me. Spending other people's money might be Trump's one and only talent in the governing process.
A query to AI Overview produces this information about the cost of taking a case to the U.S. Supreme Court:
Litigating a case from a local trial court all the way to the U.S. Supreme Court (SCOTUS) is an extraordinarily expensive endeavor. While actual court filing fees are remarkably low, the total cost for a full life cycle of litigation usually ranges from $500,000 to well over $5 million per side. [1, 2, 3]
Those costs, of course, are mild compared to what Trump has wasted starting a war with Iran. But Trump apparently is too hard-headed to understand that a president cannot govern by executive orders alone. He must work with the House, the Senate, the Courts. The U.S. is not set up for one-man rule -- -- even though that apparently is what Trump wants. Rational observers, of which Robert Reich is one, knew that the outcome should be a nearly unanimous spanking. That it was not unanimous says more about our compromised high court than it does about the merits of Trump's case. Reich writes:
In another era, this would have been a no-brainer. No constitutional lawyer I know thought the Court would decide otherwise. The lower federal courts had consistently and unanimously ruled against Trump.
Had Trump won, it would have probably caused panic among recent immigrants and their families. Although Trump has insisted his policy would apply only to future births, it was far from clear that the logic of any win for Trump wouldn’t apply retrospectively if a future president (JD Vance? perish the thought) wanted to go there.
What I find troubling is that the decision was 5 to 4 rather than unanimous or nearly so, as it should have been.
How did the ruling wind up being much closer than expected? Reich explains, and it doesn't say anything positive about the competence or ethics of our Supreme Court:
Only five of the nine justice ruled against Trump on constitutional grounds. Brett Kavanaugh dissented on statutory grounds; while agreeing that Trump’s executive order was unlawful, he argued that the court should have resolved the case under federal immigration law rather than the Constitution.
The Court’s three most conservative justices — Clarence Thomas, Neil Gorsuch, and Samuel Alito — dissented. Thomas wrote for the group: “The Court adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support.”
Pure and utter claptrap.
Reich comes to this conclusion: Even though SCOTUS reached the correct decision, looking beneath the surface tells you that something has to change. This court has emboldened and empowered Trump at nearly every turn -- even allowing Trump on the ballot in the face of the 14th Amendment, which disqualified him due to his status as an insurrectionist on Jan. 6, 2021. Reich writes:
Thomas, Gorsuch, and Alito are so far to the right of America that their views on this case and other matters should be presumed bonkers. Yet what’s particularly sobering is that Trump is only one justice away from having a Supreme Court majority that would have gone his way on this absurd reading of the 14th Amendment.
Clearly, the Supreme Court must be changed — either by expanding the number of justices or by invoking term limits on Supreme Court justices. The Constitution would permit both remedies.
Perhaps the best thing about today’s majority decision is that it’s a direct repudiation of Tump, who has long taken a personal interest in the issue. During his 2024 campaign, he made curtailing birthright citizenship a key element of his immigration platform.
For the Court to so directly reject Trump’s position today is surely a humiliation for him. But then again, humiliation requires a capacity to feel shame, and he has repeatedly shown he has no shame.
