The editors of the Washington Post speculate on how the Supreme Court will deal with President Trump’s edict against birthright citizenship:
President Donald Trump’s executive order claiming to deny citizenship to children of immigrants in the United States temporarily or unlawfully has been uniformly blocked by lower courts, and on Wednesday the Supreme Court will hear arguments on both sides. The administration’s chances of a win in Trump v. Barbara are extremely low, but one question is whether the justices opt for a sweeping constitutional ruling or a narrower one that gives Congress room to legislate on the subject.
They explain:
One option for the justices is to leave the constitutional debate for another day. That’s because — as an amicus brief from 217 members of Congress points out — the Immigration and Nationality Act of 1952 probably codified birthright citizenship independently of the 14th Amendment. It uses the same “subject to the jurisdiction” language as the 14th Amendment, and legislative debates in the 20th century strongly imply that members of Congress took birthright citizenship for granted.
Even if the history around the 14th Amendment is too ambiguous for a firm constitutional holding, in other words, the justices could decide that Congress has written birthright citizenship into the country’s immigration laws more recently. The president can’t override immigration law with an executive order.
I am no augur of Supreme Court behavior. I suspect the justices will find that the 14th Amendment means what it says about birthright citizenship which will certainly not please either President Trump or his supporters. That is consistent with longstanding precedent as well as a minimalist approach to interpretation. That wouldn’t be my preferred outcome but I think it’s the likely outcome.
For what it’s worth my preferred outcome would be for the justices to find that states and jurisdictions with “sanctuary” policies hold those in the country illegally outside of federal jurisdiction so the 14th Amendment and the citizenship provisions in the Immigration and Naturalization Act don’t apply to them. If a jurisdiction affirmatively refuses to cooperate with federal immigration enforcement, it raises a serious question whether individuals shielded by such policies are meaningfully “subject to the jurisdiction” of the United States in the sense contemplated by the 14th Amendment and the Court could resolve that ambiguity by concluding that they are not. That would uphold existing law while flashing a warning sign at state and local governments but it would also maximize chaos which I why I don’t think the SCOTUS will rule that way. Historically, courts tend to avoid rulings that create administratively unworkable distinctions across jurisdictions.
The provisions of the 14th Amendment and the INA are overdue for an overhaul. They don’t deal with what’s called “birth tourism” or the sort of citizen via surrogacy farm that was in the news not long ago, both of which exploit a legal framework that ties citizenship to geography alone rather than to any durable civic connection. And neither envisioned mass immigration of the sort we have had for the last several decades. Our present situation is unprecedented in its combination of scale, legal complexity, and administrative fragmentation.
We can’t expect a single case to solve all of the problems with our immigration law. While the Court will almost certainly avoid creating chaos the only institution capable of resolving the underlying contradictions is Congress and it has shown little willingness to do so.
