President Donald Trump plans to sit in on Wednesday’s Supreme Court hearing on birthright citizenship, making him the first sitting president to attend oral arguments at the nation’s highest court.Trump is there to glower at the Supremes in the hopes of intimidating them so they won't rule against him on this, the way Vincenzo Pentangeli was brought in from Sicily to intimidate his brother Frank when Frank was a cooperating congressional witness against crime boss Michael Corleone. This is a classic scene from The Godfather Part II, the sequel to one of Trump's five favorite movies. Frank recants, and later commits suicide.
Trump is having the time of his life these days -- the wars! the ballroom! the library! -- but his 2020 election loss is the wound that won't heal. And while the executive order, if allowed to take effect, won't denaturalize anyone retroactively -- the order itself says it "shall apply only to persons who are born within the United States after 30 days from the date of this order" -- a victory for Trump will apparently soothe his tender ego, because it will suggest to him that he lost in 2020 only because people who shouldn't have been allowed to vote voted against him, never mind the fact that they were citizens and were legally entitled to vote. (I don't think we have any hard evidence that the election was decided by the votes of undocumented immigrants' children. I doubt that it was.)
I don't think Trump's intimidation is necessary. Immediately after the executive order was issued, I said that I expected the Supreme Court to uphold it. I still believe that. It's possible that the Court will rule that the children of undocumented immigrants aren't citizens, but rule against Trump's attempt to deny citizenship to the children of parents whose presence in America is "lawful but temporary." Nevertheless, I think he'll get a win, and his Godfather act is unnecessary.
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Jamelle Bouie's column today is about the birthright citizenship case. It's mostly a review of the history of birthright citizenship in America since the ratification of the 14th Amendment. At the end, Bouie speculates on the Supreme Court's response to the case:
... if the Supreme Court decides in favor of Trump, it will have less to do with law or history than the political power of the president and his movement.Prior to publishing the column, Bouie expressed this idea somewhat more clearly in a video:
... The revisionist case rests less on new evidence than it does on Trump’s claim to embody the nation and its desires. If he is ascendant, then the people must want a closed, cloistered society.
Bouie says (at 8:23):
This case is about politics, and it's about power. It's, I think, about whether the justices believe that Trump is some kind of avatar of the American people, that Trump does represent some essence of the United States, and that his commands, his wills, his decrees, ought to be written into the Constitution as a kind of sovereign act.I don't think the Court's Republicans will decide this on the basis of "is Trump popular?" I think they'll decide this the way they decide most cases:
If the Court has that view -- which will never be said explicitly, but I think is sort of implicit in the way that it's treated Trump, and the way that it's treated his claims to executive authority -- then he wins on this. If the Court has at least a little fidelity to the text of the Constitution, then I don't think he does.
And all of this is why it is important to engage in active political contestation of this administration, including mass protests. Mass protests show that the public is not with Trump, that his claims to representing or embodying the public are bunk, are nonsense, and that the Court should probably think twice before it goes and allows him to invalidate a critical piece of our constitutional heritage.
* Is this good for right-wing billionaires?Bouie does a fairly thorough job of recounting the history of birthright citizenship since Reconstruction, but he skips over the early 21st century, the pre-Trump era when the George W. Bush administration fired U.S. attorneys who wouldn't pursue cases involving (nearly non-existent) voter fraud, and when Fox News and other right-wing media sources darkly insinuated that Democrats commit electoral fraud at every opportunity. Election "experts" such as Hans von Spakovsky -- coauthor of books such as Who's Counting?: How Fraudsters and Bureaucrats Put Your Vote at Risk (2012) -- made frequent appearances in the right-wing press.
* Is this good for the electoral prospects of the Republican Party -- or, as in the Dobbs decision, does this help achieve a key goal of one or more Republican interest groups?
Von Spakovsky, a Heritage Foundation fellow, published a Fox News opinion piece in 2011 titled "Birthright Citizenship -- A Fundamental Misunderstanding of the 14th Amendment." In it, he wrote:
The 14th Amendment doesn’t say that all persons born in the U.S. are citizens. It says that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. That second, critical, conditional phrase is conveniently ignored or misinterpreted by advocates of “birthright” citizenship.Bouie thinks the meaning of that phrase is incontestable -- to him, to most legal scholars, and to all federal courts since 1898, it refers to "everyone except the children of most Native tribes, the children of ambassadors and any children produced on territory captured by an invading army." But the Heritage/Murdoch right has been contesting it for many years now.
In his column, Bouie lists a number of right-leaning legal scholars who once said the Constitution was clear on birthright citizenship and now aren't so sure:
[Ilan] Wurman, who argued previously that his originalism compelled the traditional reading of the birthright clause, said after the executive order was issued that the meaning of birthright citizenship was less settled than the consensus supposed. The president, he suggested, might be right.Well, of course -- when those earlier works were published, some people still believed that the Republican Party might someday open its arms to law-abiding undocumented immigrants again, as some Republicans (Ronald Reagan, George W. Bush, John McCain) tried to do in the past. These scholars have now concluded that Trump is the one and only "avatar" and "essence" of the Republican Party, which is all that matters to them.
Randy Barnett, a conservative scholar whose previous work on the 14th Amendment emphasized the monumental influence of abolitionists on the birthright clause, also agreed that there was more to the question than traditionally understood, despite coauthoring a book that never challenged the consensus view.
Yet another conservative scholar, Kurt Lash — whose 2021 essay on the subject affirmed the traditional reading and whose edited volume on the Reconstruction amendments contains hundreds of pages of primary sources, not one of which questions it — also made an apparent about-face to insist that there was something to the president’s executive order.
I assume it will be all that matters to the six Republicans on the Supreme Court.
