A year ago, Donald Trump launched one of his most subversive attacks on the Constitution when he signed an executive order purporting to end birthright citizenship.
“Blatantly unconstitutional” is what one of the several judges who halted the order called it. That Reagan-appointed judge, John Coughenour, said that in his decades on the bench he couldn’t recall another case “where the question presented is as clear as this one.” He called citizenship by birth an “unequivocal” right that’s “one of the precious principles that makes the United States the great nation that it is” — one that a president can’t change with an executive order.
Thus, Trump’s order, titled “Protecting the Meaning and Value of American Citizenship,” in fact does the opposite and does so illegally.
Indeed, the Supreme Court might be poised to strike down the order by the summer.
The justices decided a birthright citizenship-related appeal last term. But that was about an issue that was more procedural — over the scope of injunctions blocking the order, not about the order’s legality. Notably in that appeal, called Trump v. CASA, the administration urged the court to only rule on the procedural aspect, not on the underlying legality. The court’s Republican-appointed majority obliged in June over dissent from the court’s Democratic appointees, who called out the gambit.
Justice Sonia Sotomayor wrote that it was “obvious” why the government wasn’t asking the court to fully lift the lower-court blocks on the order. “To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice,” Sotomayor wrote. “The gamesmanship in this request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along,” she wrote. The court can end the dangerous game soon. It agreed to consider the merits of the issue this term, setting up a reckoning for both Trump and the court. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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