U.S. Supreme Court ruling jeopardizes birthright citizenship

Globe and Mail

14 hours ago

An explosive constitutional battle broke out over the weekend in the U.S., as the country assessed the impact of a Supreme Court decision that jeopardized the notion of 'birthright citizenship' and inflamed all the passions of the Donald Trump era.
The high court ruled Friday that lower courts could not 'stay,' or delay, the implementation of executive orders or laws. The decision has immediate implications beyond ending nationwide injunctions, which has been used against executive-branch policies of both Republican and Democratic administrations but came into full flower in the Joe Biden and Trump years.
The lower courts had questioned the constitutionality of Mr. Trump's birthright citizenship policy, announced the day he returned to the White House on Jan. 20. So the Supreme Court's decision opened the way, if only temporarily, to permit the administration to deny American citizenship to some people born in the U.S.
It's an initiative by the Trump administration that has roiled American politics and has the potential of altering the composition of the country's population.
Until Friday's ruling, it was a common assumption that the 14th Amendment's provision granting citizenship to all born in the U.S. was beyond debate. But, as it has done in a full gamut of areas, the Trump administration has taken what was a settled matter and, in the process, unsettled American politics.
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The Supreme Court's decision spurred fresh determination from the Trump camp to expand its drive against migrants, prompted indignant howls of protest from migrant-rights activists. It triggered yet another national debate on the Constitution, the prerogatives of the executive branch, and the policies of the President.
The Trump offensive against all the assumptions of American civic life took special aim at the very first sentence of the post-Civil War amendment, passed by Congress in 1866 and confirmed by the states two years later: '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.'
For 157 years, the interpretation of that language was largely immune to challenge, even though the context was the granting of citizenship to the enslaved persons who had been freed in the aftermath of the Civil War. The meaning was clear: Those born in the U.S. were, by definition, Americans. Even an earlier Supreme Court, in 1898, affirmed that notion, and for more than a century and a quarter, it seemed unassailable.
But the new focus on immigration, and what the Trump administration considered the promiscuous conferring of American citizenship on the children of those residing in the country illegally, transformed a given to a right that the President and anti-immigrant activists wanted to take away.
Many legal scholars doubt the Trump tactic, and argue that what the words say is what the amendment means. But the Trump administration argues that the context of the 14th amendment – part of a flurry of changes in American life after the Civil War that tore the country apart geographically, culturally, economically, and morally – means that the language reflected a specific moment in time and a specific circumstance. They argue that the 19th-century amendment doesn't apply to far different 21st-century circumstances.
The irony is that many of those who support that position also embrace a 'strict constructionist' view of the Constitution, urging in other cases that the words of the founding American document (which includes the 25 amendments that followed) are to be taken literally, shorn of context or interpretation.
The Supreme Court's decision actually said nothing about birthright citizenship. It merely argued that, as Justice Amy Coney Barrett put it, excesses by the executive branch can't be stanched by excesses of the judicial branch. That means that lower-court judges skeptical of, or opposed to, Trump policies cannot invalidate those initiatives.
The fact that the court test involved the Trump birthright citizenship case opened the administration to pursue its original intention, the denial of citizenship to some children of migrants and to make them vulnerable to deportation. This was an especially important target to the administration because of its view that large numbers of migrants were having children in the U.S., or coming to the country, for the express purpose of rendering their children American citizens.
A May study by the Migration Policy Institute at Penn State University found that, if Mr. Trump prevailed, about 255,000 children born on U.S. soil each year would be denied American citizenship.
The Supreme Court likely will rule on birthright citizenship in its next term, which begins in October, though it is possible some of the suits already filed may prompt it to make a swifter ruling.
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The Trump administration must wait about a month before taking action in the 28 states that haven't challenged the President's order. Opponents of the policy didn't wait to take legal action. The court challenges came first from New Hampshire and New Jersey, but other states likely will follow, taking advantage of the fact the Supreme Court's decision offered another opening for action.
It's an analogue to the opening granted to the Trump administration. The Supreme Court ruled that class-action suits could be filed in federal district courts that might, in specific geographical areas, bar enforcement of the Trump order.
This issue has been confined thus far to the executive and judicial branches. But shortly after the Trump executive order, legislation was filed on Capitol Hill that would grant citizenship only to children born to a parent who is a U.S. citizen or national, to a lawful permanent resident living in the country, or to a non-American legally admitted to the country performing active service in the armed services. No congressional action has been taken.