Trump Thinks He Can Defy the Supremes on Birthright Citizenship

The White House is serving up a staler helping of the legal arguments the Roberts court already refused to swallow.

The White House appears to think that it can ignore a Supreme Court ruling by lying about its previous defeat and trying to achieve the same goal another way.

President Donald Trump issued an executive order on Thursday that purported to narrow the scope of birthright citizenship, two months after suffering a major defeat on the subject at the high court. The order’s text claims that it targets “certain categories of children of aliens who do not fall within the rule of birthright citizenship as announced by the Supreme Court” in Trump v. Barbara in June.

The Fourteenth Amendment’s citizenship clause says that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” For the last 150 years, the overwhelming judicial and scholarly consensus has been that anyone born on U.S. soil is a U.S. citizen, except for the children of foreign diplomats and other moribund exceptions. The Supreme Court confirmed this interpretation in the 1898 case United States v. Wong Kim Ark.

Trump issued an executive order last January that purported not to recognize the citizenship of children born on U.S. soil to temporary visa holders and/or undocumented immigrants. In Trump v. Barbara, the Supreme Court struck down the executive order as unconstitutional. The targeted children “satisfy both elements of the Citizenship Clause: they are ‘born … in the United States’ and ‘subject to the jurisdiction thereof,’” Chief Justice John Roberts wrote for the court. “Under the Constitution, they are citizens at birth.”

Every person currently living inside the United States falls into one of four categories. They are either a U.S. citizen by birth or naturalization, a lawful permanent resident (better known as a green card holder), they’ve gained entry with a temporary visa, or they unlawfully entered the U.S. Nobody disputes that the citizenship clause applies to the children of U.S. citizens. The Supreme Court ruled that the citizenship clause covers the last two groups, except for a few narrow exceptions: If the clause covers the children of temporary visa holders, it must logically cover the children of permanent residents, as well. “Permanent” is just a lifelong version of “temporary,” after all.

Trump’s new executive order saw things differently. It claimed that the court merely held that the citizenship clause “extends the privilege of citizenship to children born to parents in the United States ‘for whom no extraterritorial fiction applies.’” This language, from Roberts’s opinion, referred to the medieval understanding of diplomatic immunity. English kings could not expect the allegiance of foreign ambassadors on English soil because the common law “considered [them]—by a fiction of extraterritoriality—to remain on foreign soil and thus ‘under the ligeance’ of their home country.”

The White House somehow took this description as an invitation to invent new purported exceptions to the citizenship clause. “This order identifies, non-exhaustively, and prescribes action concerning certain categories of children of aliens who do not fall within the rule of birthright citizenship as announced by the Supreme Court,” the order claimed. There is no evidence that Roberts and the majority intended for the executive branch to identify new exceptions, and plenty of reasons to believe that they intended to foreclose them.

To the contrary, the chief justice emphasized how limited the existing exceptions were at multiple points throughout the decision. “The ordinary legal meaning of the text of the Clause thus neatly captures the common law rule, with its broad reach and narrow exceptions,” he observed at one point. Justice Brett Kavanaugh, who only partially concurred with Roberts’s opinion, also wrote separately to make a similar argument about new exceptions to the one now advanced by the White House. If that had been the actual ruling, Kavanaugh would not have needed to write his own opinion at all.

Reading the executive order reminds me of CDOs, otherwise known as collateralized debt obligations. Before the financial crisis in 2008, banks would gather large numbers of risky subprime mortgage bonds and repackage them into CDOs before selling them to other banks. Credit ratings companies would give CDOs high marks because the bonds were considered less risky in the........

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