Citizenship as a Birthright
The Supreme Court weakened the Constitutional protections of U.S. citizens born here.
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Another short newsletter this week - this time as my work life creeped into my weekend…. That said, a little news.
Citizenship as a Birthright
Last month, I wrote about the oral arguments before the Supreme Court regarding President Trump’s executive order purporting to limit whether someone born in the United States is indeed a U.S. citizen, even though it’s clearly stated in the Fourteenth Amendment that this is the case. [1]
The issue [before the Supreme Court] was brought along a different tack to get around the unconstitutionality of the order; the argument focused on preventing lower courts from issuing nationwide injunctions. The administration’s argument is that the (unconstitutional) order should not be prevented from going forward - affected citizens should only get relief if they themselves sue in court or such individual cases somehow make their way to the Supreme Court for nationwide relief.
More specifically, the cases involved whether the Supreme Court should stay the district courts’ nationwide preliminary injunctions on the Trump administration’s Jan. 20 executive order purporting to end birthright citizenship except as to the individual plaintiffs and identified members of the organizational plaintiffs or states.
The Supreme Court finally ruled this week in a 6-3 opinion on those preliminary injunctions that federal district courts lack the power to issue nationwide injunctions. University of Michigan law professor and former U.S. attorney for the Eastern District of Michigan Barbara McQuade wrote: [2]
Giving President Donald Trump a huge victory in his ongoing quest to amass executive power, the Supreme Court decided, 6-3, that federal district courts lack the power to issue nationwide injunctions. The justices remanded to lower courts the cases that had challenged Trump’s birthright citizenship executive order, but said that those courts’ decisions will apply only to the plaintiffs in each specific cases.
Since the case of Marbury v. Madison, courts have had the power to say what the law is. Today, the Supreme Court has shrunk from this role at the risk of enabling what Justice Ketanji Brown Jackson calls a "zone of lawlessness, within which the Executive has the prerogative to take or leave the law as it wishes, and where individuals who would otherwise be entitled to the law’s protection become subject to the Executive’s whims instead."
While the Court majority ruled that “[u]niversal injunctions likely exceed the equitable authority that Congress has given to federal courts,” [3] the opinion was not without strong dissent.
Justice Sotomayor drives home the real impact of the Supreme Court’s decision: [4]
Children born in the United States and subject to its laws are United States citizens. That has been the legal rule since the founding, and it was the English rule well before then. This Court once attempted to repudiate it, holding in Dred Scott v. Sandford, 19 How. 393 (1857), that the children of enslaved black Americans were not citizens. To remedy that grievous error, the States passed in 1866 and Congress ratified in 1868 the Fourteenth Amendment’s Citizenship Clause, which enshrined birthright citizenship in the Constitution. There it has remained, accepted and respected by Congress, by the Executive, and by this Court. Until today.
It is now the President who attempts, in an Executive Order (Order or Citizenship Order), to repudiate birthright citizenship. Every court to evaluate the Order has deemed it patently unconstitutional and, for that reason, has enjoined the Federal Government from enforcing it. Undeterred, the Government now asks this Court to grant emergency relief, insisting it will suffer irreparable harm unless it can deprive at least some children born in the United States of citizenship.
The Government does not ask for complete stays of the injunctions, as it ordinarily does before this Court. Why? The answer is obvious: To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice. So the Government instead tries its hand at a different game. It asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone. Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit.
The gamesmanship in this request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along. A majority of this Court decides that these applications, of all cases, provide the appropriate occasion to resolve the question of universal injunctions and end the centuries-old practice once and for all. In its rush to do so the Court disregards basic principles of equity as well as the long history of injunctive relief granted to non-parties.
No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship. The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit. Because I will not be complicit in so grave an attack on our system of law, I dissent.
Justice Jackson “agree[d] with every word” of Justice Sotomayor’s dissent and writing separately “to emphasize a key conceptual point: The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.” [5]
To hear the majority tell it, this suit raises a mind-numbingly technical query: Are universal injunctions “sufficiently ‘analogous’ to the relief issued ‘by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act’” to fall within the equitable authority Congress granted federal courts in the Judiciary Act of 1789? But that legalese is a smokescreen. It obscures a far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?
…
Do remember: The Executive has not asked this Court to determine whether Executive Order No. 14160 [the Citizenship Order] complies with the Constitution. Rather, it has come to us seeking the right to continue enforcing that order regardless—i.e., even though six courts have now said the order is likely unconstitutional.
Harvard Constitutional Law Professor Laurence Tribe discussed the dangers of the Supreme Court’s latest ruling, limiting the ability of federal judges to block Donald Trump’s executive orders nationwide. Professor Tribe says of the devastating human consequences this ruling has on the countless children in this country, “if you’re unlucky enough not to be born with the right lineage, this decision sets a trap for you.” [6]
Former NYU professor and author of the PressThink blog Jay Rosen recently recommended this documentary, so I figured I’d share it in this week’s Narratives section: [7]
From the description of the documentary on PBS’s website: [8]
Hannah Arendt: Facing Tyranny takes a closer look at one of the most fearless political writers of modern times.
Hannah Arendt came of age in Germany as Hitler rose to power, before escaping to the United States as a Jewish refugee. Through her unflinching capacity to demand attention to facts and reality, Arendt’s time as a political prisoner, refugee and survivor in Europe informed her groundbreaking insights into the human condition, the refugee crisis and totalitarianism.
Her major works, The Origins of Totalitarianism (1951), The Human Condition (1958), Eichmann in Jerusalem: A Report on the Banality of Evil (1963), On Revolution (1963) and Crises of the Republic (1972) remain among the most important and most-read treatises on the development and impact of totalitarianism and the fault lines in American democracy. Arendt’s reports on the trial of Adolph Eichmann also caused a firestorm of controversy, and its impact is still felt today.
The documentary is anchored in Hannah Arendt’s life experience, including her resistance against the Nazi regime, working to help Jewish children escape to Palestine, her relationship with the esteemed philosopher and Nazi Martin Heidegger and her time in a prisoner of war camp before fleeing to the United States.
Streaming until: 7/26/2025 @ 2:59 AM EDT
GIF Game
Bruce Springsteen – Born in the USA
Notes and Sources
[1] Mic Farris, “Memorial Day,” May 25, 2025, https://www.micfarris.com/articles/memorial-day
[2] Barbara McQuade, “Trump used birthright citizenship as an excuse for another presidential power grab,” MSNBC News, June 27, 2025, https://www.msnbc.com/opinion/msnbc-opinion/supreme-court-birthright-citizenship-trump-win-judges-rcna213406
[3] Trump v CASA, Inc., 24A884, 606 U.S. _____ (2025), https://www.supremecourt.gov/opinions/24pdf/24a884_new_g314.pdf
[4] Ibid., https://www.supremecourt.gov/opinions/24pdf/24a884_new_g314.pdf#page=54.
[5] Ibid., https://www.supremecourt.gov/opinions/24pdf/24a884_new_g314.pdf#page=98.
[6] “‘Not just an imperial Executive, but an imperial Supreme Court’: Tribe reacts to birthright ruling ,” MSNBC News, June 27, 2025, https://www.msnbc.com/the-last-word/watch/-not-just-an-imperial-executive-but-an-imperial-supreme-court-tribe-reacts-to-birthright-ruling-242410053591
[7] Jay Rosen [@jayrosen.bksy.social], Bluesky, June 28, 2025, https://bsky.app/profile/jayrosen.bsky.social/post/3lsog63lnl22d
[8] “Hannah Arendt: Facing Tyranny,” American Masters, PBS, Season 29, Episode 5, premiered June 27, 2025, https://www.pbs.org/wnet/americanmasters/hannah-arendt-documentary/36135/
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