On Sunday, GOP presidential frontrunner Donald Trump released a package of immigration proposals that placed him on the same side of the citizenship debate as an infamous pro-slavery decision by the Supreme Court. Birthright citizenship, which provides that people born in the United States and subject to its laws are automatically citizens, was placed in the Constitution in order to overrule the Court’s Dred Scott decision, which held that black slaves and their descendants could not be citizens. Trump, however, wants to “end birthright citizenship.”
Just one day after Trump released this proposal — which, again, is at odds with the Constitution — two sitting Republican governors fell in line behind The Donald. Louisiana Gov. Bobby Jindal, himself a Republican presidential candidate, tweeted out “we need to end birthright citizenship for illegal immigrants” on Monday evening. Similarly, Wisconsin governor and presidential candidate Scott Walker told reporters at the Iowa State Fair that America should “absolutely” return to a citizenship policy more in line with the views laid out in the Dred Scott opinion.
Former Florida Gov. Jeb Bush, also a GOP presidential candidate, offered a more moderate response to Trump’s proposal on Tuesday — although his more moderate rhetoric was rooted more in practical considerations than in substantive disagreement with the real estate mogul. “There are like 10 things I would change in the Constitution with a magic wand,” Bush admitted. Yet he also conceded that birthright citizenship “is in the Constitution,” and thus he pledged to emphasize methods of cracking down on immigration that could be implemented without changing the nation’s founding document.
Bush is right that a legitimate effort to abolish birthright citizenship, or even to simply eliminate it for the children of undocumented immigrants as Jindal suggests, would require a constitutional amendment. That would require, at the very least, the consent of 38 state legislatures. Absent a nativist wave that sweeps Trump-like candidates into office throughout the nation, a constitutional amendment targeting birthright citizenship is very unlikely to happen.
Nevertheless, there is one path that could lead to Trump’s proposal being implemented despite the unambiguous language of the Constitution. The Supreme Court recognized that the Fourteenth Amendment to the Constitution provides for birthright citizenship more than a century ago, but some current members of the Supreme Court have shown remarkable flexibility when longstanding precedents and well-established legal principles conflict with top Republican Party priorities.
According to Judge Laurence Silberman, a conservative judge who received the Presidential Medal of Freedom from President George W. Bush, the plaintiffs’ primary argument in the first major Supreme Court case challenging the Affordable Care Act had no basis “in either the text of the Constitution or Supreme Court precedent.” Nevertheless, four of the Supreme Court’s five Republican members voted to repeal the entire law.
Three years later, the Supreme Court considered King v. Burwell, another legal attack on Obamacare which rested on the unique claim that much of the text of the Affordable Care Act does not count. Nevertheless, three of the Court’s Republicans signed onto this attack on President Obama’s signature health care law as well.
As Yale’s Jack Balkin wrote shortly before the first of these two cases was decided, “[t]hree years ago, the idea that the Act’s mandate to purchase health insurance might be unconstitutional was, in the view of most legal professionals and academics, simply crazy.” Yet the law’s opponents put this “off the wall” legal claim “on the wall” through a full-court press from Republican advocates in the legal academy, in elected positions, in PR shops and in media outlets such as Fox News.
If ending birthright citizenship becomes a top Republican priority similar to repealing the Affordable Care Act, it is not hard to imagine several of the Court’s current members convincing themselves that this priority should be implemented in the same way that they were willing to embrace legally nonsensical arguments in cases like King. Four sitting justices, moreover are in their late seventies or early eighties. That means that the next president could fill close to half of the Court’s seats in just one presidential term.
And if that president shares Trump, Jindal and Walker’s views, that could be the end of birthright citizenship.