The 14th Amendment to the U.S. Constitution isn’t just any amendment. We fought a civil war over it. There simply wouldn’t be a United States without it. From its very first section comes some of our greatest commitments as a nation. Equal protection of the laws. Due process. Birthright citizenship. None of these things are negotiable values under the Constitution. Yet during the Trump years, Section 1 of the amendment, in particular, birthright citizenship, has become a contested issue. An item of ordinary politics. As if suddenly there’s a constitutional debate to be had about it. “So, the children should be deported as soon as they’re born?” “Yes, with their parents. Absolutely.” “The 14th Amendment, I was right on it. You can do something with it, and you can do something fast.” The 14th Amendment guarantees citizenship to “all persons born in the United States and subject to the jurisdiction thereof.” This is what’s known as birthright citizenship. For more than 100 years, courts and presidents have understood that language means what it says. Children born in the United States and subject to its laws are U.S. citizens. There’s no more to it. But on his first day back in office —— “That’s a good one. Birthright.” Donald Trump signed an executive order attempting to erase this constitutional bedrock. Judges across the country, appointed by presidents of both parties, quickly blocked it. The first one to do so, a Reagan appointee in Washington State, was so offended by this executive order that he told the Justice Department lawyer defending it in open court that he had “difficulty understanding how a member of the bar could state that this is constitutional.” If it were up to these judges, this executive order would have died a quick death. The reason it hasn’t: the Supreme Court of the United States. They had a chance to put an end to all of this. But then —— “The U.S. Supreme Court delivered a major decision today. Individual judges cannot grant nationwide injunctions to block any policies coming from the White House.” So, rather than addressing the legality of Trump’s order, the court punted. The court focused on the process instead. Nationwide injunctions, the practice of lower court judges blocking executive policies on a nationwide basis. In all of this, the majority said next to nothing about the egregiousness of a president attempting to rewrite the 14th Amendment. Justice Sonia Sotomayor, who dissented alongside the other Democratic appointees, saw right through this sleight of hand. “That the court uses this of all cases to resolve the decades-old question of universal injunctions is shameful in its own right. That it does so without addressing the merits of the citizenship order is itself equally indefensible.” As a result, the executive order returned to the lower courts. This time they’re not issuing nationwide injunctions, but instead certifying class-action lawsuits in different states. In other words, same result, different procedures. And now, one of these cases, a case out of New Hampshire called Trump v. Barbara, is before the Supreme Court. At long last, the justices will address the legality of Trump’s executive order to stop birthright citizenship. Now, I’m not especially worried about how the court will rule. The text of the 14th Amendment is clear. Precedent is clear. History is clear. Children born in the United States and subject to U.S. laws, are U.S. citizens. That’s open and shut. I expect the majority to reaffirm that foundational principle. What worries me, though, is that this song and dance, of letting this aberration linger unresolved for close to 18 months, will sow a lot of needless uncertainty, chaos and worry among immigrant families that are truly concerned that their children will be rendered stateless. That uncertainty is real and shouldn’t be discounted. Another problem with letting this issue linger for so long is the creation of this alternate reality, where legal scholars, politicians and advocates are actively debating something that all of us can read with our own eyes. The simplicity of the citizenship clause suddenly becomes contestable. This creates a harmful perception about birthright citizenship that has no place in our politics. That it’s debatable. Yet this isn’t like abortion, immigration or gun rights, where we’ve always had constitutional debates. The reality is that nothing has changed since once fringe voices like Trump began to call for an end to birthright citizenship. “300,000 births this year.” And now all of a sudden the baby’s a United States citizen.” Sure, the politics of immigration have gotten more extreme. Then it was —— “Build the wall. We have no choice.” Now it’s —— “the largest deportation operation in the history of our country.” Then it was separation at the border. “Thousands of children being kept in holding pens.” Now it’s ICE invading cities and entire families being grabbed from their homes and taken to far-flung detention centers. “When do we want it? Now.” This sudden interest in birthright citizenship has nothing to do with the Constitution. The 14th Amendment remains the same. Trump v. Barbara is all about the shifting politics of who belongs in this country. That’s what this case is all about. The Supreme Court’s job, then, in this climate, is not just legal. It’s political. And the justices will have to see Trump’s executive order for what it is: a political ploy to rewrite something that has been settled in the text of the 14th Amendment for nearly 160 years.
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