Was it an interest in the constitutional arguments about citizenship? Or intimidation of the judges he has been targeting for some time? On Wednesday morning, President Donald Trump drove a motorcade of at least eighteen vehicles the 2.3 miles from the White House to the Supreme Court to attend the hearing on his birthright order. Never before has a sitting president appeared there for the substantive hearing of a case.
On the day of his inauguration, Trump decreed that children born in the United States will no longer automatically become American citizens, as stated in the Fourteenth Amendment of the Constitution and confirmed in an earlier ruling by the Constitutional Court. According to the Republican, the children of migrants without legal residence status and those of temporary residents, such as students, fall outside this fundamental right.
The Court dealt with the issue on Wednesday and will rule early this summer on whether Trump’s decree becomes legally valid. It’s one of many ways he’s trying to fundamentally change the US. But this apparently has little chance of success.
1What is at stake?
Born in the USA means: to be American. Unlike European countries and most other states, the US provides nationality not on the basis of blood, but on the basis of soil. This means that children born on American soil are full citizens, even if their parents have different passports and are not even legally resident there. It is, like that protesters said outside the Court on Wednesday, an essential part of the American dream that anyone can make it here — or could.
Americans are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof,” according to the Fourteenth Amendment to the Constitution, ratified in 1868. That clause means that there are minor exceptions: the children of foreign diplomats representing another country in the US, as well as the children of any foreign occupier. Until 1924 they were too native Americans ruled out. At the end of the nineteenth century, justice was already fought for at the Supreme Court, on behalf of the son of Chinese immigrants: Wong Kim Ark.
Trump’s representative, John Sauer, asked the Supreme Court to stop recognizing only future children as citizens. They should be deported with their parents, have less right to care and education, and sometimes even be stateless. But Sauer also argued that the constitution and the Wong ruling should have always been interpreted the way the current president wants it. Profound revisionism of the current reading, which would mean that it would also become easier to deprive people of their citizenship.
2What does Trump think is the problem?
Opponents of the universal interpretation of the Fourteenth Amendment argue that it was written exclusively to naturalize the children of enslaved people after the Civil War, and therefore does not apply to immigrants. Moreover, it did not take into account today’s modern, illegal immigration. Only parents with permanent, legal status in the US could give birth to American babies.
Trump wants to exclude two groups from the current birthright. The children of illegal immigrants, asylum seekers and people with temporary visas (an estimated 255,000 per year). This fits in with the anti-immigration policy on which his political career is based.
Trump wants, among other things, to exclude children of illegal immigrants and asylum seekers from the current birthright law
A second category are the so-called ‘birth tourists’, mainly Chinese who come to the US to give birth or use a surrogate mother, banned in China, to give birth to an American child. The migration-critical Center for Immigration Studies estimated in 2020 that between 20,000 and 26,000 children of tourists get citizenship. That year it became more difficult for pregnant women to get a visa to travel to the US.
“Citizenship by place of birth is not about rich people from China – and around the world – who, for a price, want their children – and hundreds of thousands of others – to ridiculously become citizens of the United States of America,” Trump wrote before the hearing on his social medium Truth Social. “Stupid judges and judicial dignitaries do not make a great country!”
3What do the judges think about it?
With two far-right justices likely to agree with Trump and three Democratic-appointed justices almost certain not to, the decision depends on Chief Justice John Roberts and the three justices appointed in Trump’s first term: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
All four were, to varying degrees, skeptical about the Trump administration’s arguments. Roberts characterized some arguments as “very idiosyncratic.” Yet they were also not receptive to everything that lawyer Cecillia Wang, of the American Civil Liberties Union, said against Trump’s decree.
Trump has already won an important battle with this decree. The Supreme Court ruled last June that judgments of lower courts are those executive order aside, cannot be used as a nationwide blockade of presidential policy. So called universal injunctions can since then be used less effectively to slow down Trump – although there are legal workarounds to do this. He called it a “monumental victory.”
When the Court recently ruled against his import duties, the president flew into a rage. He called the judges he appointed “idiots and lapdogs” and “a disgrace to their families.” His presence at Wednesday’s hearing could be seen as a method to further pressure them to rule in his favor — which, more often than not, they do. In any case, he did not seem to care about the substantive treatment. Minutes after the opposing lawyer was given the floor, the president left the room.
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Trump’s birthright decree cannot simply be blocked, say top US judges
