The Single Question That Will Doom Trump’s Quest to Gut Birthright Citizenship

Hey everyone, Ellie here, wishing you a happy Tuesday this week. We're coming a little early this week for two reasons. The first one, of course, is this is a semi-holiday week. There are real holidays, but the week is semi-blown up. We've got Passover starting Wednesday night. And of course Good Friday and then into Easter Sunday.

Do you remember watching the Ten Commandments, if you're anywhere around my age, which is fifty, soon to turn fifty one? Do you remember what that was like? They would run it once a year on, I don't know, ABC or NBC or C B S. And this is before Uh, DVRs and of course before streaming. And it's the movie from I think it's from the 50s or even maybe 40s, where Charlton Heston plays Moses.

And there's all these sort of indelible images of the Red Sea splitting and the angel of death coming down. I don't know if this is just because I was a Jewish kid or if this affected everyone the same, but this thing like permanently imprinted itself on my brain. And for the rest of history, I, and I think anyone in my generation, will think of Moses as Charlton Heston and Pharaoh as

Oh gosh, who plays Pharaoh? He's so good. Oh, Joel Brenner, I believe, plays Pharaoh. It's very chilling how cold he is. Just such an awesome movie. I guess we've kind of lost that that ability to have these things. You know, like they used to play the Rudolph the Raindare movie once a year or the Charlie Brown Halloween thing once a year and you'd know it was coming.

Uh that's kind of gone a little bit of a shame, but anyway. Uh do love this week. Spring has arrived. Feels good. Baseball's back.

Flowers are blooming and I feel good. Okay. The other reason that we are coming to you a little early this week is because there's a big argument happening in the Supreme Court tomorrow on Wednesday morning. And I wanted to offer you up a little preview of it. This is a big one. I think it's really interesting. It has to do not just with the constitution, but US history. You may have guessed, you probably have guessed. If you've been following, you know it's birthright citizenship. So

I wanna offer you uh my preview and I'll be listening on Wednesday. And if you wanna hear a sort of postgame, I'll be hosting on Sirius XM channel one twenty-four or so. I do plan on post gaming. The oral argument when I host on Sirius XM two to three, and I'll be on CNN, of course, various times throughout the day. Okay. Uh thanks for listening as always. Have a great

Passover or Easter or Good Friday, if you celebrate any of those. And if you do or don't, enjoy the arrival of spring. And as always, please send us your thoughts, questions, and comments to letters atcafe.com. If a person is subject to the jurisdiction of both the United States and, let's say, Mexico, is he subject to the jurisdiction of the United States? The answer, logically, linguistically, and legally, is yes.

And that will spell near certain doom for Donald Trump's effort to decimate our century and a half year old constitutional principle known as birthright citizenship, which goes before the US Supreme Court for oral argument on Wednesday, tomorrow. Now, birthright citizenship comes from the Fourteenth Amendment, which was ratified in 1868 after the Civil War. It reads, and I quote,

All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. End quote. Ever since then, it has been broadly understood to mean that a child born here is a US citizen, regardless of the parent's status, and with only the slimmest of exceptions.

The doctrine originally served the practical purpose of ensuring citizenship for the children of recently freed black slaves and the distinctly American ethic that the status of the parent need not restrict the child.

But on his first day back in office in january twenty twenty five, Trump issued an executive order bearing the Orwellian title, quote, protecting the meaning and value of American citizenship, end quote. That would vastly reduce the scope of birthright citizenship, but not end it altogether, contrary to certain imprecise reportings.

Under Trump's construction, a child born in the United States would automatically become a citizen only if at least one parent was present in the United States legally.

or permanently. A child born here to parents without legal status would not become a citizen, nor would a child born in the United States to parents with temporary legal status, including, for example, lawful work visas, student visas, specialty occupation visas, deferred action for childhood arrivals, and humanitarian temporary protected status.

Trump's executive order turns entirely on the meaning of the constitutional phrase subject to the jurisdiction thereof. The administration has argued to the courts. That if a non-citizen living in the United States is also a citizen of, let's say, Mexico again, to use our opening hypothetical, then that person is subject to the jurisdiction of both countries, Mexico and the United States.

and hence not somehow subject to the jurisdiction of the United States, and the child therefore is not entitled to Fourteenth Amendment protection. The illogic is plain, of course. If I'm holding two things at once, let's say a baseball in one hand and a football in the other, then I am indeed holding a baseball. Holding the football in the other hand doesn't somehow cancel out the baseball. And if the constitution meant what Trump's lawyers claim it means, it would have an extra word.

Subject only or solely or exclusively to the jurisdiction of the United States. Indeed, a Mexican-born parent living illegally or with temporary status in the United States is unquestionably subject to the jurisdiction of this country. He certainly could be arrested and imprisoned in the United States, for example, subject to the jurisdiction thereof, to use the constitutional language. So too could that person be taxed.

By the United States government, or regulated, or questioned, or ticketed, or any of the other things the government does to people who live here. Imagine a scenario where a federal law enforcement agent tried to arrest a Mexican-born person inside the United States. And that person responded, sorry, sir, I am physically here in the United States, but I'm also a Mexican citizen, so therefore I'm not subject to your jurisdiction, according to the president. Wouldn't fly, would it?

Trump's lawyers have argued that the Fourteenth Amendment does not say that everyone born here is a citizen, period. The person must indeed also be subject to the jurisdiction thereof, and that phrase therefore must exclude somebody to have any meaning.

Now, the answer, which has been accepted by every court to consider the issue so far, is that subject to the jurisdiction thereof does indeed serve to exclude certain extremely narrow categories of people who are altogether outside the reach of the U.S. government. the children of foreign diplomats, or invading hostile armies, for example.

Read that way, every word of the Fourteenth Amendment's birthright citizenship clause has a purpose and makes perfect sense. Thus far, Trump's tortured constitutional construction has been uniformly rejected in the federal court.

District judges in New Hampshire, Maryland, Massachusetts, and Washington have rebuffed the president's attempt to rewrite the Constitution and U.S. history, and the courts of appeals for the first, fourth, and ninth circuits have declined to block those lower court rulings. In the Washington State case, Reagan appointed District Court Judge John Koffenauer.

called Trump's order, quote, blatantly unconstitutional. The veteran jurist noted, quote, I have been on the bench for over four decades. I can't remember another case where the question presented was as clear, end quote. After more than a year of litigation across the country, the Trump administration is batting exactly zero, zero, zero.

When the Supreme Court hears oral argument on birthright citizenship on Wednesday, expect the justices and the advocates to converse on all manner of deep legalese. But in the end, it comes down to the simple proposition that if a person has two things at once, He also has one of them. If a person is subject to the jurisdiction of the United States and Mexico, he is indeed subject to the jurisdiction of the United States and therefore covered by the Fourteenth Amendment.

The law and logic are clear enough here that I'd expect the conservative Chief Justice John Roberts. And Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett ultimately to join their three liberal colleagues and rule against Trump and in favor of our long-accepted notion of birthright citizenship. It's tough to predict Justices Clarence Thomas and Samuel Alito whenever Trumpian politics are involved, but even they might be persuaded given the clarity of the legal issue at hand.

The only real drama remaining is whether the Supreme Court will reject Trump's position seven to two or Thanks for listening everyone. Stay safe and stay.