Today, the U.S. Supreme Court is hearing arguments on a case of long-settled law that shouldn’t even be before the justices: birthright citizenship.
The court will weigh Donald Trump’s outlandish executive order purporting to end the automatic grant of citizenship to those born on U.S. soil to undocumented immigrants. We doubt anything else as patently unconstitutional — say, an order banning all private firearm ownership in the United States — would have made it this far, but now the court has the chance to once more put it to bed for good.
Some might make social or political arguments in favor or against birthright citizenship for those Trump has derided as so-called “anchor babies.” But it would be a very dangerous thing to have a system where there is a permanent underclass of people who were born and raised in the United States, but have no ability to fully integrate into civic life; even openly eugenicist legislators in the late 19th and early 20th century thought this was a bad idea and being born here was deemed to mean that you belonged here.
There are economic and cultural dimensions to all of these conversations, and we’re sure that they will continue to be had in perpetuity. None of that at all impacts the fact that the plain meaning of the 14th Amendment has been clear since the amendment’s adoption in the aftermath of the Civil War. Even then, opponents challenged its obvious intent, and even then the Supreme Court ruled that the Constitution is clear, a precedent that has stood for well more than a century now.
The legal conversation is settled, and far more explicit than other consequential decisions in which the court must weigh potentially conflicting precedents and nebulous congressional intent. The Constitution states “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The administration has tried to hang its hat on the notion of “jurisdiction,” on the laughable argument that people born on U.S. soil to undocumented parents are not subject to it, an interesting argument at the same time as Trump has been aggressively deploying agents to cities across the country and buying up warehouses to arrest and detain the same people over which he claims to have no jurisdiction.
Trump’s lawyers have tried to argue that this phrase means the same as allegiance, but it plainly does not. The reason that the children of foreign diplomats (who are here legally) do not receive automatic U.S. citizenship is precisely because they are born under diplomatic immunity, not because their parents have allegiance for a foreign government. The court’s conservatives can think whatever they want about it, but it does not give them the ability to rewrite the amendment on the fly.
If political actors want to organize to enact a constitutional amendment to change this, they’re welcome to try. We doubt there is much appetite for this among the American public and its representatives, but that’s politics, you can push for whatever they want. What they cannot do, however, is disregard the Constitution as it currently exists, no matter how much Trump wants to think and act like he is a king who can rule by decree.