At least four Justices want to debate whether the Trump Regime can flout plain constitutional language
As if to invite mockery, the Supreme Court Justices chose April Fools Day to hear oral argument in Trump v. Barbara (also referred to as Trump v. CASA), a case that tells us at least four Justices who voted to review the lower court ruling see the Constitution’s plain language as a joke.
The Justices will literally debate whether the authors of the 14th Amendment meant what they wrote in one of the Constitution’s clearest passages. Section 1 establishes, “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.”
On Trump’s first day in office in 2025, the White House released an Executive Order claiming those words don’t mean what they say. In Trump v Barbara, several Justices who previously claimed to be “textualist” will assess whether the Trump Regime is entitled to ignore plain constitutional text and deny citizenship to U.S. – born children if the mother did not meet the regime’s preferred criteria. Trump’s arguments have already been dismissed in lower court rulings.
As we prepared to write about this case and the relevant precedents, we found some outstanding reports already published so we decided our readers might be better served by excerpting and linking two of the best.
In Balls and Strikes, Madiba K. Dennie writes:
Trump is claiming that he has the unilateral power to create a permanent, hereditary legal underclass unseen in America since before the Civil War. In doing so, he is rehashing grotesque legal arguments that every branch of government has rejected for generations, and placing himself at odds with the plain text, history, and purpose of the Fourteenth Amendment.
Congress adopted the Fourteenth Amendment after the Civil War in significant part to repudiate the Supreme Court’s ruling in Dred Scott v. Sandford. That 1857 case held that the longstanding principle of citizenship by birth categorically did not apply to Black Americans, whether free or enslaved, and that they could never become citizens of the United States. Eleven years later, in order to reject this holding and to place the citizenship of disfavored minorities beyond political dispute, Congress declared in the first sentence of the Fourteenth Amendment that “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.”
In 1898, 30 years after the enactment of the Fourteenth Amendment, the Supreme Court was called upon to decide whether “all persons” really meant “all persons.”
Read the full article on BallsandStrikes.org
In Vox, Ian Millhiser writes
The heart of Trump’s brief is a list (on pages 26–28) of quotations from 19th and early 20th century books and law review articles that make the same argument Morse made in his 1881 treatise. Trump’s lawyers claim that the 14th Amendment does not apply to “children of temporarily present aliens or illegal aliens.”
The mere fact that an argument existed in the late 19th century does not prove it was widely accepted, or even that it enjoyed any meaningful support. According to Erman and Perl-Rosenthal, even Morse eventually rejected the anti-citizenship argument he made in his 1881 book, telling the American Bar Association in an 1884 speech that tying citizenship to whether the parents are permanent residents of the United States “utterly fails to furnish a convenient or practical rule of decision.” (Although Morse came up with other legal arguments seeking to diminish the 14th Amendment.)
Trump, in other words, seeks to justify his anti-citizenship order using a century-and-a-half old idea that was swiftly rejected even by its most prominent 19th-century proponent.
Read the full story at Vox.com
Tough questions and answers for counsel
For those who really want to get wonky on this case, Akhil and Vikram Amar & Samarth Desai dreamed up tough questions the regressive Justices might ask Cecillia Wang of the ACLU, the attorney challenging Trump’s order.
Suppose a Russian-spy couple came to America and had a baby. How can you possibly insist that such a baby would be a U.S. citizen?
A: Constitutionally, children are not the same as their parents. Our Constitution repudiates corruption of blood and hereditary attainders; children cannot be punished or demeaned because of the misdeeds of their parents. Also, American citizens might themselves be tempted into Benedict Arnold-style treason or espionage, but here too it would be unconstitutional to de-citizenize their American-born children. Finally, let’s turn the question around. Suppose the espionage is discovered long after the baby’s birth. Shall we de-citizenize the person retroactively? One virtue of the 14th Amendment’s clear and clean rule is that, when a baby is born, the government does not need to worry about the countless complexities of how and when to determine parentage – a point powerfully made by Justice Brett Kavanaugh at oral argument in Trump v. CASA.
Read more on SCOTUSblog.com, along with the mock grilling of Trump’s attorney