The birthright citizen case before the US Supreme Court today, could well be one of the most precedential cases the Supremes consider this year, among many that will prove to be significant for years to come. “Precedential”, as in setting precedence for years to come; not “presidential”, as in relating to the president – though it certainly is that also.
While many people may thank that the issue in this case is birthright citizenship, it is actually isn’t. At. least, not yet. Birthright citizenship is the underlying and ultimate issue to be decided, but the issue before the Supreme Court at the moment is a procedural and jurisdictional one, and the determination of this issue will either allow President Trump free reign (for the time being) to barrel down the aggressive course he has set for deportations (and other things), or it will reign him in and block his ability to move at the pace and in the way he has planned.
The case comes up to the high court on procedural grounds. The substance of the case is not yet at issue. That will await the complete litigation process before a decision is made. The only issue before the Court, now, is whether a federal trial court has jurisdiction to issue a nationwide injunction.
The ultimate issue in the case, birthright citizenship, of course, is a poignant constitutional matter that will have far reaching effect. A decision in favor of the Trump interpretation of the law will dramatically change law as it has been interpreted and applied Since 1898. The substantive issue involves the meaning of the language in the 14th Amendment that establishes birthright citizenship. (See The Birthright Citizenship Case Exposes a Constitutional Crisis Unfolding for detail on the right to birthright citizenship embedded into the 14th Amendment.) The Trump Administration has directly challenged the well established precedent over the last 125+ years, but a determination of that seminal issue must wait.
The procedural posture of this case is the entry of a nationwide preliminary injunction by a federal trial court. This isn’t the first case of its kind. Many trial courts, both federal and state, have issued similar far-reaching orders imposing injunctions at the front end of a case, halting the action challenged, while the litigation plods forward to a long-awaited conclusion.
The 300 lb. gorilla in this case is the jurisdiction of the trial court. Trial courts have limited jurisdiction in our American system if jurisprudence, but the court purported to issue an injunction applicable throughout the entire nation. The high stakes that ride on this decision are evident, but we need to review the design and structure of the nation’s court system to understand why this is an issue.
The US District Court for the Southern District of Texas has now weighed in on the Trump Administration’s invocation of the Alien Enemies Act of 1798, declaring that Tren de Aragua, is a “designated Foreign Terrorist Organization[,] . . . perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” With so much speculation and so many assumptions being made, I want to cut through the BS and get to the truth. Before summarizing the opinion, though, a little background is in order.
The Alien Enemies Act of 1798 is a federal law that grants the president “wartime authority” to detain or deport non-U.S. citizens of enemy countries. It was enacted in 1798 as part of a series of laws known as the Alien and Sedition Acts, aimed at addressing national security concerns during a period of tension with France. The Act can be invoked during a declared war, a perpetrated, attempted, or threatened invasion, or a “predatory incursion” against U.S. territory. Those terms are key to understanding the scope of the Act of a President’s authority to invoke it.
In summary, the Act allows the President to target citizens of a hostile nation or government who are not US citizens in a time of war for detention or deportation, and the this law permits these actions to be taken without a court hearing, based solely on citizenship or country of origin of the targeted persons.
Legal scholars question whether a law that targets people based on the citizenship or country of origin would withstand a constitutional challenge. My understanding is (not having reviewed the relevant caselaw) that the Act has not been challenged in court on constitutional grounds, and the present case involving Venezuelan immigrants does not include a constitutional challenge. Therefore, the constitutionality of the Act has not been addressed.
The Act has been invoked only three times in U.S. history: during the War of 1812, World War I, and World War II. This law was the authority cited for the detentions, expulsions, and restrictions targeting German, Austro-Hungarian, Japanese, and Italian immigrants based on ancestry during WWII, and it was the justification alleged for Japanese internment.
The Act is a war power. It is triggered by 1) a congressional declaration of war; 2) a presidential determination of threatened or actual invasion; or 3) a presidential determination of threatened or actual “predatory incursion”. Only Congress can declare war, but the President has the authority to repel sudden attacks (invasions or “predatory incursions”).
Obviously, the ability of a President to invoke the Act without an act Congress requires an invasion or “predatory incursion”. Congressional intent can be gleaned from the way those terms were used in the late 1700’s. According to the Brennan Center for Justice,
“In the Constitution and other late-1700s statutes, the term invasion is used literally, typically to refer to large-scale attacks. The term predatory incursion is also used literally in writings of that period to refer to slightly smaller attacks like the 1781 Raid on Richmond led by American defector Benedict Arnold.”
Recent groups have encouraged a non-literal interpretation of the terms to address illegal immigration and trafficking “based on a migrant ‘invasion’ or ‘predatory incursion’ perpetrated by a cartel alleged to be acting as a de facto foreign government.” That creative reading of the law, however, “is at odds with centuries of legislative, presidential, and judicial practice, all of which confirm that the Alien Enemies Act is a wartime authority. (See The Alien Enemies Act, Explained)
The Act has only ever been used in the context of war declared by Congress. President Truman’s invocation of the Act to detain prisoners as late as 1951 was allowed with deference on the presidential determination of when a war terminates (WWII), but the Act has never been used in the history of the nation outside of a declared war.
The Brennan Center for Justice, a progressive non-profit think tank, notes that Fifth Amendment protections apply against discrimination on the basis of race, ethnicity, nationality, etc. For these reasons, they say, courts and presidents have apologized for the Japanese interment during WWII, and scholars have generally held that the Japanese interment was mistaken, if not blatantly unconstitutional. Other legal issues undermine the validity of the law as well. (See The Alien Enemies Act, Explained)
With that background and explanation of the Alien Enemies Act of 1798. Let’s turn to the opinion that was handed down On May 1, 2025. The opinion is authored by a conservative judge (who happens to be an Evangelical Christian) appointed by President Trump. It recounts the history of the Act with detail and technical fluidity that I will try to explain by focusing on the key language. For the legal nerds among us, you can read the 36-page opinion yourself. (See J.A.V. et al., v. Donald Trump, Civil Action No. 1:25-CV-072 (So. Dist. TX)(5-1-2-25))
I don’t often play the lawyer in my blog. The blog is about faith and a journey toward truth. Despite my own inclinations to avoid politics, I find myself sucked into what is going on because of the unprecedented nature of the changes that have occurred so quickly since Donald Trump took office. As a result, I am reading more articles on the daily political drama that is currently unfolding than I normally would.
In some ways, Donald Trump is simply expanding executive authority as previous presidents have done (especially recent ones), though he is expanding it further and faster than it was done before. The expansion of executive authority is nothing new, but he is pushing the envelope more quicky and more expansively than ever before.
In other ways, Trump is going where no previous presidents have dared to go. He is blurring the lines of his executive authority and constitutional constraints in ways and with a boldness we have not previosuly witnessed.
The Executive Branch of government has no constitutional authority to make law. A president only has power to carry out the law established by Congress (with certain defined exceptions). Executive actions that go beyond or are contrary to the laws established by Congress and the few constitutional grants of power can be questioned in the courts.
Donald Trump’s order to end birthright citizenship is an example of his executive actions over the last two months. The Supreme Court recently agreed to take up the cases filed in several states in which injunctions were issued against that birthright order. I get weary of the moral and political fray, so I am going to take a step back today and do a little analysis of the mechanics of what is going on.
Birthright citizenship is in the US Constitution. It wasn’t always there. It was introduced in the 14th Amendment that was ratified after the Civil War, and it provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof” are citizens.
I should point out that the 14th Amendment was a dramatic change to the laws of our country. It changed the very foundation of our law – the Constitution. It was done through the mechanisms embedded in the Constitution, though. It wasn’t a maverick move by one man in power; it was done by the constitutional amendment process that requires passage by two-thirds of both houses or a constitutional convention called by two-thirds of the states, and it must be ratified (approved) by three-fourths of the state legislatures.
This is an onerous process, but it is meant to be difficult. The fear of the founders of our country was that one small segment of power or one man could change everything – as in the European monarchies from which the settlers of our country came. They built into the fabric of our governing structure a separation of powers, a federal government and many state governments, and processes that create a system of checks and balances – like the process to amend our Constitution. These things were done to mitigate against the fear of sudden change that might destabilize the democratic republic.
The 14th Amendment was passed in 1868. It took about three years after the end of the Civil War to get it passed, and that was moving through the process quickly. The bedrock of the 14th Amendment is at issue in the cases that are currently being taken up, now, by the US Supreme Court. The opening lines are as follows:
“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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
14th Amendment, Section 1
Citizenship to all people born in the United Stated is the foundation of the 14th Amendment. From this foundation, the Amendment grants due process and equal protection, which are arguably the most significant protections that Americans enjoy.
The application and scope of the 14th Amendment was challenged 30 years later in a case that made its way up to the US Supreme Court from the 9th Circuit in California. (See United States v. Wong Kim Ark, 169 U.S. 649 (1898)) At issue was a 21-year-old Chinese man who was born to Chinese citizens who lived in San Francisco when he was born in 1873.
The Chinese Exclusion Acts passed in 1882, prohibiting Chinese laborers from entering the US, making Chinese immigrants ineligible for citizenship. It also required Chinese people who left the country to obtain citizenship before re-entering the country.
Wong Kim Ark parents returned to China with him in 1890 when he was 17. He retuned briefly in 1894, and returned to the US again – the country of his birth – in 1895. Upon returning a second time, he was detained under The Chinese Exclusion Acts. The prosecutors in this case argued as follows:
“Wong Kim Ark has been at all times, by reason of his race, language, color and dress, a Chinese person, and now is, and for some time past has been, a laborer by occupation.
“Wong Kim Ark is not entitled to land in the United States, or to be or remain therein, because he does not belong to any of the privileged classes enumerated in any of the acts of Congress, known as the Chinese Exclusion Acts, which would exempt him from the class or classes which are especially excluded from the United States by the provisions of the said acts.”
(As an aside, this language would never fly today. It is racially charged language and discriminates against people solely based on race, ethnicity, and national origin. The law itself targeted one nationality, ethnicity, and race of people. Immigration laws would continue to target people by nationality, ethnicity, and race until the early 1960’s. The wheels of justice, indeed, turn slowly, but we are better than that now, right?)
The issue in the Wong Kim Ark case focused on the 14th Amendment. The prosecutors focused on the qualifying statement in italics: “persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.” They argued that Wong Kim Ark was never “under the laws of the United States”, because his parents were “Chinese persons and subjects of the Emperor of China”, and Wong Kim Ark was “also a Chinese person and a subject of the Emperor of China.”
In effect, they argued that Wong Kim Ark was not subject to the jurisdiction of the United States because his parents were subjects (citizens) of China. One might ask why they detained him if he wasn’t subject to the jurisdiction of the US, but I digress.
After tracing the history of English common law, Napoleonic law, and even Roman law on citizenship, the Court focused on what Congress intended by the 14th Amendment in light of the Civil Rights Act that they passed in 1866, just two years earlier. The Civil Rights Act made persons citizens who are “born in the United States, and not subject to any foreign power.” (Subject to foreign power meant a a diplomat or person in similarly representing a foreign power.)
The 14th Amendment was intended to embed civil rights protections, including citizenship, in the US Constitution so it could not be undone easily by a future Congress or any state legislature. “Its main purpose doubtless was … to establish the citizenship of free negroes” that was denied in the Dred Scott case. (US v. Wong Kim Ark at 676) Thus, the “all persons” language signaled that citizenship is based on “place and jurisdiction and not by color or race.” (Ibid.)
The Dred Scott case, decided in 1857 by the US Supreme Court, was the law of the land until the Civil Rights Act of 1866 and the 13th and 14th Amendments. The Civil War, the Civil Rights Act, and the subsequent constitutional amendment intervened to change that law. Significantly, the Civil War affirmed the sovereignty and unity of the United States, and the legislation and the constitutional amendments changed the law through lawful processes.
In reviewing the history of legislation on citizenship, the Wong Kim Ark court concluded, “[T]he fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well considered opinions of the executive departments of the Government since the adoption of the Fourteenth Amendment of the Constitution.” (Id. at 688) With that, the further Court concluded:
“To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.”
Birthright citizenship has long been the law of this land (since 1868). It doesn’t matter whether the parents are citizens; a child born physically in the United States is a citizen according to the 14th Amendment as affirmed by the US Supreme Court. With that little history, I want to get to my point.
The article, Trump’s Birthright Citizenship Order Reaches the Supreme Court, written by Abbie VanSickle in the NY Times, notes that the same qualifying language, “subject to the jurisdiction of the United States” at issue in the Wong Kim Ark case is also the focus of the birthright citizenship case currently before US Supreme Court. Longstanding precedent is not immune from challenge. Roe v. Wade became the law of the land in 1973, and it was directly overturned in 2022 by Dobbs v. Jackson Women’s Health Organization.
I imagine that the Wong Kim Ark case could be distinguishable on the fact that Wong Kim Ark’s parents were not in San Francisco illegally when he was born, while Donald Trump seems to be focused on the children of illegal aliens. By my reading of the reasoning in the Wong Kim Ark case and the authority it cites, that difference should not be a distinction that makes a difference, but we will have see how these cases play out. In the meantime, I want to comment on the current state of affairs from a different angle.
David Leonhardt, in The Morning report for the NY times, prefaces an op ed by conservative Trump critic, David French, in today’s paper with some thoughts of his own. I resonate with these well-balanced thoughts as an attorney. Regardless of political leanings or morality, we should understand the legal implications and appreciate the legal lay of the land.
Leonhardt cuts through the hype and the clickbait headlines. “Shocking as it was,” Leonhardt says, “Trump’s behavior on Jan. 6 did not violate any laws in obvious ways.” He didn’t actually tell anyone to riot, or to storm the Capitol, or to attack Congress. He even said at one point that “he knew the protesters would behave ‘peacefully and patriotically,’” observes Leonhardt.
Like it or not, Donald Trump says some wildly irresponsible things, but he is clever enough to know (it seems) not to cross the line. He seems to have a knack for teetering dangerously close to the lines without actually stepping over them. ( am not commending him to say that.)
Leornhardt observes that no federal law forbids anyone from trying to overturn the results of an election. The 2000 election is a case in point. Al Gore was convinced that improprieties took place in Florida, and he demanded a recount. Gore may have done that in a much more deferential, dignified and diplomatic way, but maintaining that some impropriety took place, no matter how crudely, childishly, and obnoxiously done, is not a crime.
We need to understand these things to understand the most recent indictment. Trump is not charged with a crime involving the overturning of an election, because attempts to overturn an election, by themselves, are not criminal. Freedom of speech and laws providing access to justice allow American people to make claims. Even outrageous ones.
The latest indictment focuses on falsehoods and intentions: the indictment, basically says, “These claims were false, and [Donald Trump] knew that they were false.” In other words, the indictment is based on fraud, which is knowingly making a false claim with the intention to deceive.
As an attorney, I can tell you that trying to prove what someone intended is no small task. It may seem obvious at first blush, but how do you prove intention absent an express admission by Trump that he knew the claims were false? Even Trump may not be that stupid.
We might conceive of a kind of braggadocio that includes boasting that he knew what he was saying was false, but even that might be beyond Donald Trump. At the very least, we have no public statement from Trump that he knew the claims were false.
The fact that advisors told Trump there was no basis in fact to the claims he was making doesn’t really help us if Trump didn’t believe his advisors. If Trump thought he knew better than them. Trump’s belief that the election was “stolen” was spurious and rested on the thinnest of evidence, but fraud requires more than mere belief that is contrary to the evidence.
Fraud requires actual knowledge of the falsehood of a statement and an intention to deceive. As Leonhardt puts it, “[T]here is no testimony or recording in which Trump himself acknowledges the reality of his election loss,” and this makes fraud and conspiracy charges appear to be very difficult to prove.
In my opinion, Trump is almost certain to be successful in defending these charges, unless the prosecutors have evidence of private statements made by Trump in which he acknowledges the falsehood of the statements he made, and he expresses an intention to deceive the American people. Short of that kind of evidence, this indictment may be chasing after the wind.
I am hopeful the prosecutors do have that kind of evidence. Most objective Americans believe that Trump attempted to subvert “the very foundation of democracy” knowingly (or wantonly), even if it can’t be proven.
The risk of this indictment is that Trump defends the charges successfully. We all know that a hung jury or a not guilty determination in a criminal case doesn’t mean that a crime wasn’t committed; it just means the prosecutors could not prove their case. In this case, however, failure will fuel Trump and his supporters with legal vindication, and that is dangerous.
I have been seeing more buzz lately on the theory that COVID-19 leaked from the lab in Wuhan. Six months ago, the voices who promoted that concern were labeled conspiracy theorists. An article in the NY Times today (See Good morning. The lab-leak theory is everywhere. We have an explainer, by David Leonhardt, NY Times, may 27, 2021) poses the question: what changed?
A cynic like me (and partisan Republicans) will say the change is that we have a new party in control of the White House. The lab-leak theory is no longer a conspiracy theory because that narrative has lost its expediency and usefulness with the change in political control.
As the article points out, the origin of the virus was unclear from the beginning. Some scientists, politicians and journalists urged consideration of the Wuhan lab. Those voices were drowned out, however, by louder voices.
Now, things have changed. The Times article reports:
“Two weeks ago, 18 scientists wrote a letter to the journal Science calling for a new investigation and describing both the animal-to-human theory and the lab-leak theory as ‘viable.’ And three scientists who last year dismissed the lab-leak explanation as a conspiracy theory have told The Wall Street Journal that they now consider it plausible.”
Francis Collins, the director of the National Institutes of Health, now says, “We cannot exclude the possibility of some kind of a lab accident”, though he maintains it more likely that the virus developed naturally. Over a year ago, a couple of Chinese researchers wrote a paper concluding the virus “probably originated from a laboratory in Wuhan”, but not many people were willing to jump on the bandwagon.
The Times article is refreshingly candid in its assessment that the dismissal of this lab-leak theory “appears to be a classic example of groupthink, exacerbated by partisan polarization”. I could turn this statement into a weapon for a particular political ideology, but I won’t. I also believe a lab-leak is less likely than natural causes based on my understanding of the facts that are known to date.
Regardless of what is more likely than not, the lab-leak appears to be more plausible than the scientific (and political) consensus would allow just six months ago. The political din has subsided long enough now for the disparate voices of scientists to be heard who maintain we should not rule out the lab at Wuhan as a potential source from which COVID arose.
This shift in the “consensus” can be attributed more directly to political ideation and political polarization, than science. This seems to be the indictment of the article.
We are so divided along partisan lines in our country (and world) that we can’t think straight; we can’t even get our facts straight. Our filter for determining fact from fiction and credible theory from conspiracy theory is so tainted by the dirty film of political dross that reality seems to be obscured to a large segment of our society by it.
As we careen toward Election Day in a world that might rival Alice in Wonderland for its oddities, I have been thinking about the effect of the criticisms of Trump in the press and on social media. Actually, I have been thinking about it since before the last election, but my thoughts are gaining traction now.
Prior to the last election, the press latched onto everything (so it seems) Trump said and did. It didn’t matter that 14 Republicans were in the running at one point; the press couldn’t get enough of Trump. He was a novelty, a media circus. What seemed like a side show to begin with became the spectacle in the center ring.
I assume that Trump was good for the news and media businesses. They like train wrecks and that sort of thing. It sells.
I was thinking as I watched the Republican primary lurch and stutter that the media gave Trump all the fuel he needed to become the front runner. He couldn’t have possibly asked for or gotten more press than he did. I assume that someone like Trump believes that any press is good press – without shame, the more the merrier.
I was aggravated at all the press coverage during the primary because, it seemed to me, the media was ignoring more solid candidates and handing Trump the Republican nomination. As the Primary was settled and the presidential campaigning was shifting into high gear, the media attention turned increasingly more judgmental, but it didn’t matter. It was all more fuel to the fire that the media already kindled into a blaze.
It was a kind of symbiotic relationship. Trump was propelled along by the inertia of press coverage; and, let’s face it, Donald Trump sold the news. I am not sure who was the virus and who was the host. It didn’t mater. It worked for both of them.
I will never forget the looks of chagrin on the faces of the media pundits as the numbers came in on election night. They couldn’t believe what they were seeing, but I could. They created this Frankenstein, and they shouldn’t have been wondering at the power they gave him.
By the time Trump became the Republican frontrunner, the press was decidedly weighing against him. He wasn’t just an amusement anymore. Many of the stories carried their own moral weight, but those in the press who were aghast didn’t trust the public. They didn’t trust common people to judge rightly what they were seeing. Facts, themselves, are apparently no longer sufficient to carry their own weight.
The more the media gave into it paternalistic and condescending attitudes by offering commentary with every story, the more common people resented them and embraced Trump. People are smarter than the average bear (to mix another metaphor). They know condescension when they see it. Americans, in particular, don’t like to be told what to think or do. We love our freedoms. We boast about them. Americans are nothing, if not free, right?
Another element at play was the unending, unceasing, constant and continual criticism of Trump by all the Clinton supporters and Trump haters (who were not necessarily the same people). Trump couldn’t do anything or tweet anything or say anything that wasn’t immediately denounced, condemned and decried. Not that they had any lack of ammunition.
The Trump critics have proven to have the stamina of a racehorse and marathon runner combined. They never stopped. They don’t stop. They never will stop.
For over four years now, going back well before the last election, and continuing to the present time, the Never Trumpers have carried their torches boldly and loudly and often, posting to the world everything Trump says and does wrong on a daily basis. Not that they have lacked for material.
As the next Election Day approaches, it seems to me that Never Trump Fatigue set in somewhere along the way. I have been seeing it for awhile. People are tired of hearing it. People seem to have begun wondering, perhaps, whether the Trump critics doth protest too much.
I am not talking about the Trump supporters, who have been emboldened as the constant drone of criticism has continued to whine and now increases. People on both sides of the divide have become more vocal as people in the middle, looking for some common ground or reprieve or sense of “can’t we all get along”, seem to be left in their tracks, abandoned and stuck in the no man’s land in between.
Perspective 
You must be logged in to post a comment.