Is SCOTUS Going To Kill Birthright Citizenship Or Nationwide Injunctions?

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I said back in January that I believe the Supreme Court will throw out birthright citizenship. The Supremes might not rule that way in the case of births to green card holders or other non-citizens who are here legally, but I strongly suspect that they’ll say the U.S.-born children of immigrants who are here without legal certification aren’t citizens. I don’t think it matters that the arguments against birthright citizenship used to be seen as part of the right-wing fringe, as The New York Times noted yesterday — the desire to restrict citizenship is utterly mainstream among the Republican rank-and-file, and it’s not an important issue to swing voters, so I think the Court will, as usual, choose ideology over the Constitution.

But we don’t know whether the birthright citizenship case currently before the Court will lead to a ruling on birthright citizenship itself. Politico reports:

It’s perhaps the most high-profile case of the year, but it’s not clear what exactly the court will be deciding.

Will the justices wade into the constitutionality of Trump’s effort to deny citizenship to children born in the U.S. whose parents are undocumented immigrants or here on temporary visas? Or will the justices sidestep that legal lightning rod for now and focus solely on a more procedural, yet still momentous, issue: whether lower-court judges will retain the authority to block federal policies nationwide.

“It’s the question that’s on everyone’s minds,” said Columbia Law professor Elora Mukherjee, an expert on immigration law. “I anticipate we’ll see some discussion of the underlying merits, but I am not clear on how much.”

… the administration, notably, is not asking the court at this stage to overturn the district judges’ legal reasoning and declare Trump’s policy constitutional. Rather, the administration says the judges simply lacked the power to issue any nationwide injunctions in the first place.

… If the justices invalidate the injunctions, Trump may be able to enact his citizenship policy in vast areas of the country — even though every court to squarely weigh the policy’s legality has ruled against it.

So for now we might just get a ruling on whether district judges can issue nationwide injunctions. If so, I assume that the Court will hand even more power to Trump by saying that nationwide injunctions are bad — or are bad only in certain policy areas. The ruling will be crafted so it hands power to Trump while leaving open the possibility that executive power can be taken away if there’s ever a Democratic president again.

In the current case, we may be left with a situation in which the U.S.-born children of undocumented immigrants are citizens in some parts of America and not citizens in other parts. That seems like a recipe for chaos — are these kids still citizens if their parents take them from a pro-citizenship federal district to an anti-citizenship federal district? — but it could be sort of an out-of-town tryout for the idea of overturning birthright citizenship altogether: the country will live with a two-tiered system for a while, and get used to that, which sets the table for a full abandonment of the principle that no longer seems radical to most Americans.

And I think it’s possible that the Supremes will rule on birthright citizenship itself, in a way that has an impact far beyond what happens to immigrants’ babies.

The argument in favor of universal birthright citizenship is that the Fourteenth Amendment is unambiguous:

All 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.

The phrase “subject to the jurisdiction thereof” means that U.S. law applies to them (as it doesn’t fully apply to, say, foreign diplomats who live here).

If, as I suspect, the Supreme Court says (now or in the future) that undocumented immigrants’ babies aren’t “subject to the jurisdiction” of the United States, that will not only mean that these babies aren’t citizens, it will also mean that no one living here illegally is entitled to due process rights. The Fifth Amendment says, “No person shall be … deprived of life, liberty, or property, without due process of law” — note that it’s “No person” rather than “No citizen.” I think the Supremes are likely to rule that the Fifth Amendment wasn’t really intended to extend due process to people here unlawfully (or, in Trump’s America, people who were here lawfully until the administration declared that they weren’t), and that the Fourteenth Amendment didn’t really mean that people here unlawfully are “subject to the jurisdiction” of the United States.

At that point, birthright citizenship will be a thing of the past and Stephen Miller, Kristi Noem, and Tom Homan will have the unchallengeable right to do anything they please to anyone deemed “illegal” by the Executive Branch.

It’s disturbing that the Supremes pushed this case to the front of the line. The New York Times reports that today’s arguments in the case

will take place after the justices have heard all of their scheduled cases this term, and in the weeks before they begin issuing their most consequential decisions of the year — an unusual move that signals that the justices regard the dispute as significant enough to consider immediately.

They want to legislate from the bench right now. That tells me they want tro do something nasty and ideological right away.

Published with permission of No More Mister Nice Blog