The Supreme Court Has Never Heard a Case As Easy As This One

This article is part of the TPM Café, the TPM opinion and news analysis site. It was originally published on Balls and Strikes.

On January 20, 2025 – his first day back in the White House – President Donald Trump issued an executive order seeking to override the Fourteenth Amendment’s guarantee of birthright citizenship. Tomorrow, the Supreme Court will hear oral arguments at Trump vs. Barbaraa direct challenge to the constitutionality of this order.

That the birthright debate is scheduled for April 1 seems quite logical, because the debate itself is a sick joke. Trump claims he has the unilateral power to create a permanent, hereditary legal underclass, not seen in America since before the Civil War. In doing so, he rehashes grotesque legal arguments that all branches of government have rejected for generations and puts himself at odds with the plain text, history, and purpose of the Fourteenth Amendment.

Congress passed the Fourteenth Amendment after the Civil War, largely to repudiate the Supreme Court’s decision in Dred Scott v. Sandford. This 1857 case ruled that the long-standing principle of birthright citizenship 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 assertion and place the citizenship of disadvantaged minorities beyond political challenge, 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 Fourteenth Amendment was signed into law, the Supreme Court was asked to decide whether “all persons” really meant “all persons.” Wong Kim Ark was born in San Francisco to Chinese parents who, under the Chinese Exclusion Act passed by Congress in 1882, were “subjects of the Emperor of China” and could not legally immigrate to the United States. After a visit to China, customs officials refused to allow Wong Kim Ark to enter the country, saying he was not a citizen. But in United States v. Wong Kim Arkthe Supreme Court ruled that it was and upheld “the ancient and fundamental rule of citizenship by birth within the territory,” with only a narrow exception for the children of diplomats and members of sovereign Indian tribes.

Now, more than a century later, the Trump administration’s legal strategy is to pretend this story doesn’t exist. In the first paragraph of its brief, for example, the White House argues that the Fourteenth Amendment grants citizenship rights only to “freed slaves and their children,” not to “children of temporarily present aliens or illegal aliens.”

This is obviously false. The Reconstruction Congress explicitly debated the scope of the birthright during the drafting process, as some politicians, such as Trump, feared the country would be “overrun” by immigrants. West Virginia Senator Peter Van Winkle, for example, lamented that the Fourteenth Amendment would extend citizenship “not only to the Negro race” but also to “other inferior races which are now settling on our Pacific coast and would perhaps involve a future immigration to this country of which we have no conception.” Pennsylvania Senator Edgar Cowan worried that it would “have the effect of naturalizing the children of Chinese and Gypsies born in this country.”

These legislators lost and Congress passed the Fourteenth Amendment anyway. “He who is born in the country is a citizen, and a citizen by birth alone,” said Vermont Sen. Justin Morrill.

Dissent in Wong Kim Arch ” deplored this result, denouncing the fact that such a rule would mean that the federal government does not have the power to expel “children who are foreign by descent, but born on our soil.” Justice Melville Fuller held that the Fourteenth Amendment did not permit “children of aliens” whose parents remained “subject to a foreign power under the bond of permanent allegiance” to become citizens by birth.

Once again his eyesight was lost. Only one other justice joined him in his dissent.

The Trump administration nevertheless asserts in the third paragraph of its brief that the Fourteenth Amendment extends citizenship only to people who are “fully subject” to the “political jurisdiction” of the country and “owe direct and immediate allegiance to the Nation” – a condition presumably dependent on parentage.

This too is patently false. More than a decade before the Civil War, a New York court ruled that a child born in the state to a visiting Irish couple was a U.S. citizen by birth. Ohio Representative William Lawrence invoked this case in the House to support the Fourteenth Amendment and asserted that “all children born here are citizens without any regard to the political condition or allegiance of their parents.” Illinois Senator Lyman Trumbull also referred to this case on the Senate floor and explained that the Fourteenth Amendment was written so that “there is no dispute” that the Constitution adopted this expansive rule, not Dred ScottThe exclusion rule of .

Conservative law professor Ilan Wurman recently took it upon himself to defend the Trump administration’s ahistorical view of birthright citizenship. In an amicus brief, Wurman asserted that birthright citizenship “almost certainly excluded children born to illegally introduced aliens” and was “unstable at best” with respect to the children of “temporary visitors.” This, too, is blatantly false: a botched resurgence of dissent in Wong Kim Archwhich insists that there is “an essential difference between a birth in temporary residence and a birth in permanent residence”.

Tomorrow’s pleading at Trump vs. Barbara will not tell us whether the Constitution guarantees birthright citizenship. We already know this, and we have known it for a long time. The Trump administration’s argument is at odds with 128 years of Supreme Court precedent, decades of renowned academic studies, and the very concept of multiracial democracy.

What this will show, however, is how far this Supreme Court has gone. In a functioning legal system, Trump vs. Barbara would not come close to the highest court in the land. But Trump was able to achieve this thanks to the complicity of the conservative legal movement, whose thirstiest legal scholars are trying to rewrite the Fourteenth Amendment by redefining its established meaning as mere “conventional wisdom.” THE Trump vs. Barbara the pleading will not reveal anything new about the law. All it will reveal is the justices’ willingness to set aside the law to advance Trump’s white nationalist agenda.