On Wednesday morning, the nine members of the United States supreme court will hear arguments on the birthright citizenship case that the Trump administration is banking on to further advance its nativist, ethno-nationalist policy agenda.
It also threatens to pit the highest court in direct opposition with the president for the second time in weeks, and was the source of a warning shot fired by Donald Trump via a Truth Social post on Monday:
“The world is getting rich selling citizenships to our country while at the same time laughing at how STUPID our US court system has become (TARIFFS!). Dumb judges and justices will not a great country make!”
The none-too-subtle verbal elbow served to remind the public of Trump’s abiding unhappiness and surprise at the 6-3 decision in February with which the supreme court deemed his tariff policy illegal. If it’s a dare to defy his wishes once again, it may be one the justices take.
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Throughout his first term, Trump habitually made noises about reversing the US birthright citizenship right defined within the 14th amendment to the constitution. But during the flurry of executive orders he signed in the hours after his inauguration last year, he placed the issue high on the agenda by signing order 14160, which seeks to limit birthright citizenship to those with at least one parent who is a US citizen, or a legal permanent resident. In other words, children born to undocumented immigrants would not benefit from the right to birthright citizenship.
“We are the only country in the world that does this with birthright, as you know,” he said in the Oval Office that afternoon. At least 30 other countries offer the same protection. No sooner had Trump’s Sharpie pen left the page than the American Civil Liberties Union went to the courts seeking an injunction through a class action, which was filed under Barbara v Trump, representing a Honduran native whose full identity has not been made public.
“The folks that you mentioned have a right to have that legal opinion but it is in disagreement with the legal opinion of this administration,” Karoline Leavitt, the White House press secretary, said in one of her first briefings last January.
“This administration believes that birthright citizenship is unconstitutional and that is why president Trump signed this executive order. Illegal immigrants who come to this country and have a child are not subject to the laws of this jurisdiction. That’s the opinion of this administration and we are prepared to fight this all the way to the supreme court if we have to.”
[ Donald Trump’s vile Truth Social clip proves he is unfit for officeOpens in new window ]
That day has arrived and will engage the justices with constitutional arguments dating back to the immediate post-civil war period. The 14th amendment was passed by the US Senate in 1866 to deal with the notorious Dred Scott decision (1857), effectively ruling that no black person could be a citizen of the United States. The Trump administration’s legal argument revolves around the declaration: “All persons born or naturalised in the United States and subject to the jurisdiction thereof are citizens of the United States.”
The White House legal team will ask the justices to bore into the phrase “subject to the jurisdiction”, challenging the 150-year-old legal and lay assumption that it applies to anyone born in the United States. Or as Trump’s social post delicately phrased it on Monday, “Birthright Citizenship is not about rich people from China, and the rest of the world, who want their children, and hundreds of thousands more, FOR PAY, to ridiculously become citizens of the United States of America. It is about the BABIES OF SLAVES! We are the only country in the world that dignifies this subject with even discussion. Look at the dates of this long-ago legislation – THE EXACT END OF THE CIVIL WAR.”
Their argument is expected to rehash the nuances of old touchstone cases related to the issue, including Elk v Wilkins (1884) when the supreme court ruled against John Elk, a Native American seeking voting rights having renounced his tribal allegiances. That court found that Native Americans belonged in the status of “children of subjects of any foreign government born within the domain of that government” and it’s a ruling to which the government’s legal team will pin their argument.
Solicitor general John D Sauer has used the Elk case, and other historical precedents, to argue that the supreme court has, in the past, “rejected the premise that anyone born in the US territory, no matter the circumstances, is automatically a citizen so long as the federal government can regulate them”.
The hearing will dredge up the nativist, white-first agenda advanced by the Native Sons of the Golden West in their unsuccessful supreme court challenge during the second World War, arguments more recently drafted and polished by Stephen Miller, chief visionary in the “America First” white-nationalist agenda.
The three liberal justices on the supreme court have already indicated their objections to Trump’s executive orders but even Clarence Thomas, staunchly conservative and pro-Trump, has written of an ancestral family story originating in bondage from Africa.
The Trump administration is seeking to redress the constitution for 21st century Republican Party goals. To do so, the highest court in the land will hear arguments, in the 250th year of the United States, relating to the complex and often dismal treatment of its immigrant sons and daughters. It’s a high-stakes return of the oldest argument over who ‘gets’ to be an American.
