Trump Asks the Supreme Court to Change What It Means to Be American

The Supreme Court on Wednesday will review President Trump’s effort to rewrite who becomes a U.S. citizen, an attempt to pervert the Constitution and law born in the swamp of far-right fever.

In Trump vs. BarbaraThe Trump administration is trying to erase the 14th Amendment’s promise to grant the right of citizenship to anyone born on American soil, with very narrow exceptions. The Supreme Court has already upheld this interpretation of the Citizenship Clause, and Congress has repeatedly codified it into law.

Trump wants to exclude “temporary visitors” and “illegal aliens” from this sacred right, calling into question their allegiance and belonging to the United States. As part of the government’s anti-immigration regime, their arguments are thin and contradictory, resulting in losses in every court that has heard them.

Conflicting arguments

The Trump administration bases its sweeping reinterpretation of the Citizenship Clause on the phrase “subject to their jurisdiction” in “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.”

Justice Department lawyers argue that illegal immigrants in the country are not subject to U.S. jurisdiction because they lack sufficient loyalty to the country. A breathtakingly xenophobic argument, it also completely misrepresents the word “jurisdiction,” long understood to mean that in the United States, a person is subject to its laws. By the normal definition, undocumented immigrants are absolutely within U.S. jurisdiction, otherwise the Trump administration would not be able to stop them.

To make things even more inconsistent, the administration is also adding a requirement that parents of children eligible for birthright citizenship have a “domicile” in the country — arguing that undocumented immigrants cannot establish one because they are in the country illegally.

“Children of foreign parents who are domiciled elsewhere and are only temporarily present in the United States owe their primary allegiance to the country of origin of their parents, and not to the United States,” the government wrote in a press release.

Cancel a historic case

Even if they won’t say it, the administration asks the Court to cancel United States v. Wong Kim Arkan 1898 case that established that children of “aliens” born in the United States are U.S. citizens.

The “home” bet is an attempt to pretend that their theory can coexist with the historical case, rather than nullifying it. Wong Kim Ark’s parents had a “domicile” in the United States, so the administration says the decision is limited to that situation. The domicile theory is also a roundabout way for the administration to explain why its theory would not apply to naturalized citizens and other long-term residents, even though it makes little sense given that many undocumented immigrants have lived in the United States for decades.

That the 14th Amendment (with its citizenship clause) was adopted in response to the infamous Dred Scott This decision is another indicator of where the administration stands on these core beliefs.

Reliance on white supremacists

As a result, the administration is struggling to make its case without relying on white supremacists.

“The government cites other commenters who have suggested that the children of temporary visitors are not citizens,” write the respondents, a class of babies born in the United States to immigrant parents. “Many of these sources, motivated by opposition to Reconstruction and anti-Chinese sentiment, were attempting to undermine the clear meaning of the Citizenship Clause. »

Responding that some of their sources were not racist, the administration waved its hands in a brief: “Defendants attack the motives of Francis Wharton and David Dudley Field, but this Court has repeatedly cited their work in other contexts. »

On the sidelines

For a very long time, the belief that birthright should end was the preserve of the far right.

This fringe was partly represented by the Claremont Institute, a Southern California think tank devoted to hard causes and the aggressive use of executive power. The group filled the ranks of the Trump administration, whose ties to Claremont earned them their own nickname: the “Claremonsters.”

Monstrous or not, people affiliated with the Claremont Institute have argued, starting in the 1990s, that everyone was dead wrong with the 14th Amendment. Historical records, they say, do not guarantee birthright citizenship to anyone except the children of lawful permanent residents. All this amounts to a misreading of the phrase “subject to its jurisdiction,” they argued. This, they say, restricts citizenship only to those with proven allegiance to the United States — no undocumented immigrants, tourists or anyone without a green card.

This goes against more than a century of court rulings. The issue was largely considered settled within the framework Wong Kim Arch. But as Claremonters will proudly say, the argument is aimed at a deeper idea: that American citizenship is rooted in belief in a creed, not in ancestry.

Vice President JD Vance alluded to this in a speech last year at the Claremont Institute. There, he argued that Americans with ancestry are more American than those who simply believe in one set of ideas; a proposal could include “hundreds of millions” of “foreign citizens.”

“I think people whose ancestors fought in the Civil War have a much greater claim on America than people who say they don’t belong,” he said.

The main proponents of this idea were John Eastman and some other Claremont associates. Eastman submitted an amicus brief to the Supreme Court in 2016 in a case touching on the issue.

Eastman then provided critical legal support to Trump’s efforts to overturn the 2020 election. He did so with the help of a lawyer who co-authored the 2016 amicus brief: Ken Chesebro, who worked with Eastman to build a legal architecture that would have allowed Trump to remain in power after losing that year’s election in a coup.

Eastman spent years advocating for an end to birthright law, appearing before a House of Representatives panel in 2005 to defend what was at the time an isolated case. Since then, Trump, right-wing lawyers and the conservative movement have shifted so far to the right that they are squarely behind him, with the federal government now supporting an idea long relegated to extremists.

On Tuesday, Eastman continued to play. In an interview with Steve Bannon, he refused to acknowledge that what he envisioned would transform what it means to be American.

“It’s only more recently,” he said, “that we’ve adopted this more radical view that everyone born here, regardless of circumstances, is a citizen. »