Trump’s Losing Streak in Court

As Trump struggled to find an escape route from his Iran misadventure, the Supreme Court signaled that it would hand him yet another humiliation. In oral arguments today, six justices, three of them Republicans, scoffed at Trump’s efforts to overrule the birthright citizenship rights clearly spelled out in the 14th Amendment.

At issue today was the legality of Trump’s executive order ending birthright citizenship, an order that has been enjoined from taking effect by lower courts. The language of the 14th Amendment could hardly be clearer, and the courts have repeatedly held that it means what it says: “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.”

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The 14th Amendment was ratified in 1868 as part of the post–Civil War package of amendments intended to confer full citizenship on freed slaves. The amendment overturned the Supreme Court’s infamous 1857 Dred Scott decision, which had denied citizenship to Black Americans.

In the key case upholding the plain meaning of the 14th Amendment’s language, the Supreme Court held in the 1898 ruling in United States v. Wong Kim Ark that anyone born in the United States, regardless of their race or parent’s immigration status, is a citizen at birth.

This was the same Court that ruled in the 1896 case of Plessy v. Ferguson that segregation was constitutional. But even the Plessy Court could not find plausible grounds for overturning birthright citizenship.

Wong Kim Ark was born in the United States to Chinese parents. When attempting to return to the United States after a visit to China in 1895, the U.S. government barred Ark under the Chinese Exclusion Act. However, the Supreme Court ruled that because Ark was born in the United States he was a U.S. citizen, and that the Chinese Exclusion Act was an unconstitutional violation of the 14th Amendment.

The Trump administration contends that at the time the high court ruled in favor of Ark in 1898, immigration was largely unrestricted, so there was no such category as undocumented immigrants. But the Supreme Court has already addressed that very question.

Overturning an attempt to deny public education to children of undocumented parents, the Court ruled in the 1982 case of Plyler v. Doe that there is “no plausible distinction” between documented and undocumented immigrants, since both are “subject to the full range of obligations imposed by [the location’s] civil and criminal laws.”

Despite that ruling, however, the Trump Justice Department argued that birthright citizenship does not apply to children of people who are in the United States illegally. But most of the justices were having none of it.

Chief Justice John Roberts observed to Solicitor General D. John Sauer that all of his attempts to extrapolate from rare situations where birthright citizenship did not apply were far-fetched. “The examples you give to support that strike me as very quirky … children of ambassadors, children of enemies during a hostile invasion, children on warships. And then you expand it to a whole class of illegal aliens here in the country,” Roberts said. “I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.”

Justice Brett Kavanaugh, a Trump appointee, reminded Sauer that Congress in 1940 and 1952 passed federal statutes codifying the language of the 14th Amendment’s birthright citizenship clause. Congress passed those laws, Kavanaugh said, well aware of the interpretation, dating to the 1898 Supreme Court ruling, that birthright citizenship applied to virtually everyone born on U.S. soil. “Congress repeats that same language, knowing what the interpretation has been,” Kavanaugh said.

The only justice whose line of questioning was supportive of the administration was Samuel Alito.

Trump was in the front row of the gallery, the first sitting president to attend a Supreme Court argument. The justices did not acknowledge his presence.

If the idea was that his personal attendance would somehow intimidate the justices, it didn’t work. With each succeeding decision, most recently in its 6-3 ruling overturning Trump’s use of “emergency” tariffs, a supposed emergency that Roberts ridiculed in his opinion, this Court grows bolder and more explicit in its restraint of Trump.

The post Trump’s Losing Streak in Court appeared first on The American Prospect.