Donald Trump is trying to re-interpret the 14th Amendment. It says – right up front in Section 1—that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The 9th Circuit has just ruled that the executive order through which he has tried to change the long-accepted meaning of that sentence is unconstitutional. On July 23, a three-judge 9th Circuit panel said that “the Executive Order is invalid because it contradicts the plain language of the Fourteenth Amendment.” The ultimate question is whether or not the Supine Court majority will help him reinterpret the amendment’s seemingly clear language about “birthright citizenship.”
The executive order — one of Trump’s many — proclaims that “the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
Three federal judges quickly rejected that as unconstitutional. The first was U.S. District Judge John Coughenour in Seattle. Courts in Massachusetts and California followed suit. All issued “universal injunctions” saying that the executive order could not be enforced anywhere in the United States.
The administration appealed straight to the high court, disputing not the lower courts’ opinions on constitutionality but their authority to issue universal injunctions. Trump won. On June 23, the Court ruled – in a predictable 6-3 split – that universal injunctions weren’t constitutional. The lower courts’ injunctions applied only to the specific plaintiffs who alleged they had been harmed. Otherwise, the administration was still free to do as it pleased.
But the ACLU tried a different tack, and on July 10, a federal district judge in New Hampshire certified a class action suit against the order and enjoined the administration from applying it anywhere in the country.
Less than two weeks later, the 9th Circuit piled on.
Which is where we stand now.
Predictably, the Trump administration railed about the New Hampshire District Court’s class action decision. CBS reported that the “White House criticized the decision, with spokesman Harrison Fields calling it “an obvious and unlawful attempt to circumvent the Supreme Court’s clear order against universal relief.”
“This judge’s decision disregards the rule of law by abusing class action certification procedures,” Fields said. “The Trump Administration will be fighting vigorously against the attempts of these rogue district court judges to impede the policies President Trump was elected to implement.”
Ironically, during the Supreme Court’s oral argument about universal jurisdiction (this was the only time a challenge to an executive order hadn’t been handled behind closed doors as part of the court’s “shadow docket”) the government pushed the idea of class action as an alternative. At one point, Justice Brett Kavanaugh told Solicitor General D. John Sauer “[y]ou’ve been promising everyone here that [a class action suit] is the cure-all.”
The plaintiffs had argued that a universal injunction was analogous to the Olde English “bill of peace,” which also gave relief to people not named as plaintiffs. Sauer argued that it was not.
”It’s much more analogous to a modern class action,” he said. In fact, “the bill of peace evolved into and has directly developed into, so to speak, the modern class action that has all the . . . same features of a bill of peace.”
Dissenting from the majority opinion that scrapped universal injunctions implied that if the underlying issue had been different the majority might have looked on universal injunctions more favorably. Sotomayor no doubt enjoyed offering a hypothetical that brought in a – newly created – right dear to many conservatives. “[S]o,” she asked, “when a new president orders that because there’s so much gun violence going on in the country and he comes in and he says, I have the right to take away the guns from everyone and he sends out the military to seize everyone’s guns, we and the courts have to sit back and wait until every named plaintiff or every plaintiff whose gun is taken comes into court?”
Touche! But universal injunctions haven’t been exclusively a tool of the left. “[A]cross administrations,” the majority said, “the Solicitor General has asked us to consider the propriety of this expansive remedy. It is easy to see why. By the end of the Biden administration, we had reached “a state of affairs where almost every major presidential act [was] immediately frozen by a federal district court.’ The trend has continued: During the first 100 days of the second Trump administration, district courts issued approximately 25 universal injunctions.”
Would everyone who deplores this ruling like to stick up for a situation in which anti-abortion forces can cherry pick conservative U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas to get a (short-lived) nationwide injunction pausing the FDA’s 20-year-old approval of mifepristone?
Justice Ketanji Brown Jackson was even blunter than Sotomayor. “Courts must have the power to order everyone (including the executive) to follow the law — full stop,” she wrote. “The majority sees a power grab — but not by a presumably lawless executive choosing to act in a manner that flouts the plain text of the Constitution. Instead, to the majority, the power-hungry actors are … (wait for it) … the district courts.”
“No one disputes,” wrote Justice Amy Comey Barrett (atoning, some have speculated, for her earlier flashes of independence) in her majority opinion, “that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation.” Barrett also had unusually vitriolic (and widely noted) objections of her own.
Jackson “chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever. Waving away attention to the limits on judicial power as a “mind-numbingly technical query,” she offers a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush. In her telling, the fundamental role of courts is to “order everyone (including the Executive) to follow the law—full stop.”
Evidently, people on social media objected to her use of informal language. John McWhorter wrote in The New York Times, that they were offended by her informality. Did they really want opaque legalisms? Might her race have had just a little bit to do with their reaction? McWhorter doesn’t get into that. He does point out that public discourse since the 1980s has in general become closer to everyday speech, that everyday speech doesn’t have to be imprecise, and that those who object should just get over it.
The administration may be happy to keep appealing birthright citizenship cases on grounds that have nothing to do with the underlying question, postponing a final reckoning indefinitely, and continuing to do much of what it wants to do everywhere not covered by injunctions. The class action suit may make that tactic impossible. Or, depending on what higher courts decide, it may not.
At oral argument, Justice Elena Kagan asked about the process of unlimited delay. “[L]et’s assume,” she suggested, “that you lose in the lower courts pretty uniformly, as you have been losing on this issue, and that you never take this question to us. I mean, I notice that you didn’t take the substantive question to us. You only took the nationwide injunction question to us. I mean, why would you take the substantive question to us? You’re losing a bunch of cases. This guy over here, this woman over here, you know, they’ll have to be treated as citizens, but nobody else will. Why would you ever take this case to us?”
The Solicitor General deflected the question. Kagan pushed him, replying that “you’re ignoring the import of my question. I’m suggesting that in a case in which . . . the government is losing constantly, there’s nobody else who’s going to appeal, they’re winning, it’s up to you to decide whether to take this case to us. If I were in your shoes, there is no way I’d approach the Supreme Court with this case. So you just keep on losing in the lower courts, and what’s supposed to happen to prevent that?”
At this point, Justice Neil Gorsuch chimed in, saying that “Justice Kagan asked my questions better than I could have. How do you suggest we reach this case on the merits expeditiously?” Sauer responded that the Court had “a number of tools,” but that “we think this case is one that cries out for percolation, that the Court should allow the lower courts to address . . . the merits issue multiple times.”
If the percolation ever ends, is there any way Trump could win on the merits? With this court majority, who knows? Logically and historically, the administration doesn’t have a leg to stand on. Possibly a toe. Or a toenail. The 9th Circuit has stomped rather heavily on whatever it was. And no wonder: Federal courts have looked at this before. They haven’t ruled in ways that support Trump’s re-writing of the amendment.
The administration hopes to find some wiggle room in the amendment’s caveat that citizenship is confined to people whose parents are “subject to the jurisdiction of the United States.” What does that mean? This isn’t a novel question. In 1898, the Supreme Court ruled that Wong Kim Ark, born in San Francisco to Chinese immigrant parents, was a citizen of the United States and could not be denied re-entry after taking a trip to China. Were his parents “subject to the jurisdiction of the United States?” Yes, because they “were never engaged in any diplomatic or official capacity under the Emperor of China.”
And Wong Kim Ark’s case doesn’t stand alone. During oral argument on universal injunctions, Justice Sotomayor said there were
“not just one but, by my count, four established Supreme Court precedents. We have the Wong Ark case, where we said fealty to a foreign sovereign doesn’t defeat your entitlement — your parents’ fealty to a foreign sovereign doesn’t defeat your entitlement to citizenship as a child. We have another case where we said that even if your parents are here illegally, if you’re born here, you’re a citizen. We have yet another case that says, even if your parents came here and were stopped at the border and — but you were born in our territory, you’re still a citizen. And we have another case that says, even if your parents secured citizenship illegally, you’re still a citizen. So, as far as I see it, this order the argument here is that the president is violating an established — not just one but, by my count, four established Supreme Court precedents. We have the Wong Ark case, where we said fealty to a foreign sovereign doesn’t defeat your entitlement — your parents’ fealty to a foreign sovereign doesn’t defeat your entitlement to citizenship as a child. We have another case where we said that even if your parents are here illegally, if you’re born here, you’re a citizen. We have yet another case that says, even if your parents came here and were stopped at the border and — but you were born in our territory, you’re still a citizen. And we have another case that says, even if your parents secured citizenship illegally, you’re still a citizen.”
The administration told the 9th Circuit that the phrase didn’t protect children of people over whom the United States merely had regulatory jurisdiction – that is, people subject to the nation’s laws. No, what mattered was political jurisdiction, that is, people whose primary allegiance was to the United States and were domiciled here.
(Not that the Trump administration disclaims regulatory jurisdiction. Without it, the administration couldn’t justify arresting, trying and convicting non-citizens who committed crimes here, much less sending masked ICE thugs to snatch non-criminal immigrants off the streets, shipping them to “Alligator Alcatraz” or possibly Tacoma, holding them in federal detention centers far from homes and families, and deporting them to wherever they came from — or possibly, to places they’ve never been.)
The court didn’t buy that at all. The majority said that “[b]ecause the Court in Wong Kim Ark reasoned that the words ‘subject to the jurisdiction thereof’ must be understood ‘in the same sense in which the like words had been used by Chief Justice Marshall [in a well-known decision of 1812,]” Therefore, “the Court must have understood the phrase to refer to the United States’s ability to fully subject an individual to its laws. [The Trump Administration’s] claimed distinction between political jurisdiction and regulatory jurisdiction is not supported by precedent. Both the Supreme Court and our Court have used ‘political jurisdiction’ to refer merely to the United States’ lawmaking authority. Second, the Court did not hold or even hint that there was a requirement of ‘primary allegiance’ or exclusive allegiance.
You can argue that in the 21st century, birthright citizenship looks like a bad idea. Maybe it is. But that’s not the constitutional question. Any more than it has been the question when the court has considered the now-almost-unlimited right conferred by the Second Amendment on all Americans to amass personal arsenals.
Yes, of course, the birthright citizenship language was meant to ensure that people born in slavery had full rights of citizenship (which, of course, they didn’t really have until the mid-20th century, if then.) Yes, of course, no one who voted for the language in 1868 could have envisioned hordes of poor people walking across our southern border, or rich pregnant people flying in to give birth so that their offspring would have U.S. citizenship. But they certainly knew that the language would apply to the children of immigrants – not exactly popular with the entire native-born population – who had been streaming into the county. Most could no doubt recall the millions of Irish immigrants who arrived after the potato famine broke out in 1845. And they knew that Chinese workers were already building the western portion of the first transcontinental railroad.
They actually talked about the issue of birthright citizenship for immigrants. “In fact,” the 9th Circuit explained, “Senator [Edgar] Cowan [of Pennsylvania] criticized the proposed amendment precisely because it would base citizenship on the “mere fact that a man is born in the country.” He opposed the proposed amendment because it would grant birthright citizenship to the children of noncitizens who he believed “owe [the United States] no allegiance [and] who pretend to owe none.” Congress voted for it anyway.
“In interpreting the text of the Constitution,” the 9th Circuit reasoned, “courts are ‘guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.”’ When the Fourteenth Amendment was adopted, as it is today, ‘jurisdiction’ was commonly used in reference to the power of the courts . . .This ordinary meaning of jurisdiction is consistent with Plaintiffs’ interpretation.” The administration “point[s] to no contrary dictionary definitions . . . . Indeed, [it makes] no arguments about the ordinary meaning of the Citizenship Clause at all.”
How will the “originalists” on the Supine Court deal with that, if and when the case reaches them? Maybe the administration has focused so much on procedural issues because it would rather not find out.
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