High Court Set To Hear Oral Argument This Week On Birthright Citizenship Case
On Wednesday, the Supreme Court will have the opportunity to hear oral arguments on a case which turns directly on the question of birthright citizenship. Specifically, the Court will determine whether the Fourteenth Amendment’s naturalization provision, which states “[a]ll 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,” mandates an automatic grant of citizenship upon anyone, including the children of illegal aliens, born on U.S. soil – or if the clause, more sensibly read, applies to children born of citizens only (with limited exceptions). The case, which is being filed under the name Trump v. Barbara, is one of potentially groundbreaking import – poised to be potentially among the most important decisions, with far-reaching political ramifications, in generations.
The case arose in the aftermath of the Trump administration’s adoption of Executive Order No. 14,160 (“Protecting the Meaning and Value of American Citizenship”), which was issued on the first day of the President’s second term in January of last year. Immediately, that executive order was challenged by liberal-leaning district courts, resulting in a nationwide preliminary injunction which never allowed the order to go into effect. Last year, in the case Trump v. CASA, the Supreme Court ruled in a 6-3 judgment split along party lines that nationwide injunctions, at least tailored to the kind of policy underlying this particular EO, were unconstitutional. In that regard, the Court struck down part of a legal stopgap which indirectly affected the policy of birthright citizenship without having to confront the underlying issue on the merits head on. This hedge strategy has been typical of the Roberts
Court, which, despite having a putative Republican-majority, has chosen to repeatedly avoid addressing what it considers “hard-charging” or “politically controversial” questions on the merits. The politics underlying this strategy are interesting: though conservatives have a hard-lock on the Supreme Court for the first time in decades, they have generally shirked from “rocking the boat” on major policy questions.
Unlike their liberal counterparts, conservative judges in the vein of John Roberts have justified their obsequiously deferential approach under the pretext of stare decisis, even though much of the precedent that approach necessarily upholds is foundationally liberal precedent, and thus in the final analysis does not pass true constitutional scrutiny based on the original meaning, intent, and plain meaning of the law. As a result, major constitutional problems – such as the issue of birthright citizenship – are often kicked down the road, sometimes for generations, rather than squarely addressed upfront in a decisive and expeditious manner. The problem with this reticent approach is that it allows problems, such as the issue of birthright citizenship, to suppurate – only creating more problems over the course of time. Judges must realize that choosing not to opine on an important policy question is itself a decision of policy: neutrality is no magic substitute that allows judges to escape politics forever. Case in point: the President’s Executive Order has been in limbo for well over a year now. Without a decision on the merits, the law becomes murky and unclear. In these scenarios, judges and legislators are forced to then guess what the law is supposed to mean, which rarely leads to desirable outcomes. The failure to provide clarity in the law and act with decisiveness thus creates a negative feedback loop: rather than go away, small problems compound into bigger problems. And opponents who stand on the other side of the issue begin to sense that uncertainty. This unduly gives them more opportunities to exploit pitfalls while sowing even further doubt into the constitutional process itself. Doubt and confusion alienate would-be supporters while strengthening the resolve of opponents, who rightly deem indecision as weakness.
This, in a nutshell, elaborates a fundamental philosophical distinction in the general approach between conservatives and liberals. Liberal-majority courts historically have ruled on the merits of an issue, resulting in landmark decisions that have engineered the law in a leftward direction, as so many Warren Court decisions – named after the most impactful Chief Justice of the twentieth century – have borne out, each decision building off the last.