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.
Dave Schuler: 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.
State and local sanctuary jurisdictions do not hold people outside federal jurisdiction. They just don’t cooperate with the federal government per the anti-commandeering doctrine as rooted in the Tenth Amendment.
Sophistry.
Not sophistry but placing the needs of their locales over the convenience of the feds. Anyway, sanctuary status has nothing to do with the issue. So in the spirit of your logic, I think it’s awful that some states have made abortion essentially illegal. I think those states shouldn’t receive any federal monies. I have to run some errands and will try to come up with some other bizarre non sequiturs.
Steve
Dave Schuler: Sophistry.
If you are referring to anti-commandeering, it is a well-established doctrine in constitutional law. (See, for instance, James Madison, Federalist #46.) Functionally, it means that a state doesn’t have to hold someone for the federal government absent a court order, but there is nothing stopping the federal government from going to that jurisdiction to detain that person. In other words, contrary to your statement, people are not “outside of federal jurisdiction”.
Just to note, there is nothing that says the state can’t cooperate with the federal government, but that may sometimes require compromise. The current administration would rather vilify than compromise.
States are separate entities with authority distinct from the federal government. This is inherent in our federal system. So while I generally oppose sanctuary policies, they are perfectly legal in my view.
But people should understand that what’s good for the goose is good for the gander. States having the authority to not cooperate with federal law enforcement isn’t limited to immigration. There are several states, for example, that have enacted “2nd amendment sanctuary” statutes and policies that limit state cooperation with the feds on various federal firearms laws using the exact same logic.
Some responses:
“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 . . .”
In these cases, the injunctions were probably not unlawful. When the SCOTUS put a stop to universal injunctions in the first birthright citizenship case, it left open the possibility of class actions and despite the liberal dissent’s alarm that this was a false alternative and the republic was in danger, class actions were successfully brought. There are probably legal cases that are too individualized for class actions, but the executive order targeted two classes. The liberal dissenters were also wrong that Trump wouldn’t appeal a loss on the birthright citizenship case, evading final review. Here we are.
“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.”
Certainly possible, maybe even probable, that the SCOTUS rules on the narrowest grounds against the executive order, but not for any reasons given here. I also doubt the justices read the minority legislative argument, but have their clerks read it and let them know if there is anything new or interesting.
Instead of arguing over birthright citizenship — maybe the area to look at is the issue of dual citizenship.
Unlike birthright citizenship, that the government must support dual nationaltiies was only mandated by the Supreme Court in 1968. It was a 5-4 vote, overturning a 5-4 decision going the other way made only 10 years earlier, and for 100 years prior, from right after the 14th amendment ratification, it was accepted that people could lose their US citizenship by taking on another countries citizenship.
If dual citizenship is not allowed, a lot of the appeal of birth tourism, surrogacy is lost.
Maybe, but I don’t think the age of the birthright citizenship case (Wong Kim Ark (1898)) is that much of an impediment to the SCOTUS overruling the case or generally finding it not controlling here. The SCOTUS of the last quarter of the 19th century has not been held in much regard, particularly its civil rights caselaw. The SCOTUS relatively recently overruled three of that era’s Second Amendment cases.
In any event, listening to the oral argument today, both sides have different interpretations of the essential holding of Wong Kim Ark and there appear to be possible issues with quality of the writing and analysis to guide future controversies. The past is a foreign country where they did not have word processors.