'Ransom letter': Trump has a plan for the far-right Supreme Court majority

14 December 2024

One of President-elect Donald Trump's first executive orders will reportedly be a direct challenge to the 14th Amendment to the U.S. Constitution. And he's banking on the Supreme Court of the United States (SCOTUS) to uphold his point of view.

Politico reported Saturday that Trump's planned executive order would be aimed at preventing children of undocumented immigrants born in the United States from having birthright citizenship. Because presidents can't undo constitutional provisions on their own, it's likely that litigation over the order will eventually make its way to the High Court, which has a six-member conservative majority (including three judges Trump himself appointed).

“What will happen is, the government will get sued, and it’ll go up to the Supreme Court, and we’ll finally get a final decision on this issue,” Hans von Spakovsky, who is senior legal and judicial studies fellow at the far-right Heritage Foundation, told Politico. “The last case on this was 1898, so it’s a very long time ago. And I actually think when the Supreme Court looks at this, they will realize and uphold what Trump does.”

The news of the executive order comes after Trump hinted at action on birthright citizenship in an interview with NBC News' Kristen Welker. According to Politico, the consensus among leading legal scholars is that the 14th Amendment guarantees the full rights of citizenship to all children born in the United States — even if their parents lack legal status.

Birthright citizenship being enshrined in the Constitution came about in the wake of the Civil War, when lawmakers sought to ensure that both formerly enslaved Americans and their children were guaranteed fundamental rights afforded to all citizens. The 14th Amendment states: "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." It expressly prohibits states from passing or enforcing laws that "abridge the privileges or immunities of citizens of the United States," forbids any state's effort to "deprive any person of life, liberty, or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of the laws."

According to Politico, conservative immigration activists say the phrase "subject to the jurisdiction thereof" could be subject to further litigation, arguing that the Court could provide additional clarity to the meaning of the phrase. The 1898 case Spakovsky referenced — United States v. Wonk Kim Ark — involved a San Francisco man born to legal Chinese immigrants. While the Court ruled in his favor that he was indeed a U.S. citizen, conservatives argue that citizenship should only be granted with permission from the U.S. government.

“It’ll be good to get it back in front of the Supreme Court, have it relitigated,” Michael Hough, who is the director of federal relations at anti-immigration group NumbersUSA, told Politico. “The intention wasn’t for the system we have now, and the urgency to is that, whatever number you accept — 10 million, 15 million illegal immigrants come across — well, all the children that they’re having are going to become citizens of the United States.”

One potential point of negotiation could be that in exchange for allowing exceptions to birthright citizenship, Trump may offer a compromise in the form of a pathway to citizenship for beneficiaries of the Deferred Action on Childhood Arrivals (DACA) program — who are also known as "Dreamers." But immigration advocates counter that allowing that tradeoff would amount to a slippery slope that could further erode rights for all Americans further down the road.

"We take Trump at his word and his track record,” Beatriz Lopez, co-executive director of the Immigration Hub, told Politico. “We recognize this set-up: It’s Lucy and the football where citizenship for Dreamers is a possibility if Democrats are willing to change the constitution to end birthright citizenship and deport the parents of Dreamers and millions of other undocumented people."

"That’s not a compromise; that’s a ransom letter," she added.

Click here to read Politico's report in its entirety.

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