The New Republic reports President Donald Trump is trying to ignore a birthright citizenship Supreme Court smackdown by lying about his defeat and reaching for the same goal another way.
“Trump issued an executive order on Thursday that purported to narrow the scope of birthright citizenship, two months after suffering a major defeat on the subject at the high court,” reports New Republic writer Matt Ford. “The order’s text claims that it targets ‘certain categories of children of aliens who do not fall within the rule of birthright citizenship as announced by the Supreme Court’ in Trump v. Barbara in June.”
But a slim majority of the conservative court managed to successfully read the Constitution and see that the Fourteenth Amendment’s citizenship clause says “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Trump’s January executive order purported not to recognize the citizenship of children born on U.S. soil to temporary visa holders and/or undocumented immigrants. But in Trump v. Barbara, the Supreme Court struck down the executive order as unconstitutional. The targeted children “satisfy both elements of the Citizenship Clause: they are ‘born … in the United States’ and ‘subject to the jurisdiction thereof,’” Chief Justice John Roberts wrote for the court. “Under the Constitution, they are citizens at birth.”
But the White House invented new purported exceptions to the citizenship clause. “This order identifies, non-exhaustively, and prescribes action concerning certain categories of children of aliens who do not fall within the rule of birthright citizenship as announced by the Supreme Court,” the order claimed.
Ford said “there is no evidence that Roberts and the majority intended for the executive branch to identify new exceptions, and plenty of reasons to believe that they intended to foreclose them.”
“Reading the executive order reminds me of CDOs, otherwise known as collateralized debt obligations,” wrote Ford. “Before the financial crisis in 2008, banks would gather large numbers of risky subprime mortgage bonds and repackage them into CDOs before selling them to other banks. Credit ratings companies would give CDOs high marks because the bonds were considered less risky in the aggregate than on an individual basis. This was more or less true until it very suddenly and dramatically wasn’t.”
In so doing, Ford described Trump as an unscrupulous chef making “fish stew,” with a mixture of day-old fish and fresher ingredients to fool the customer.
“Trump’s latest executive orders work along the same lines,” he said, by excluding children born in the U.S. with at least one parent “engaged in a commercial transaction to purchase or access birthright citizenship for [child], or engaged in fraudulent activity to obtain citizenship.” It also targets commercial transactions with a surrogate present in the United States.
The Trump administration explained that it hopes to specifically tackle the phenomenon of “birth tourism,” but it also targets children “born to parents who are an ‘alien enemy,’ which the order ‘defined to include any member of a designated Foreign Terrorist Organization … or Specially Designated Global Terrorist.’”
“Describing someone as a terrorist does not supersede the Constitution, and depriving U.S. citizenship to otherwise eligible children based on their parents’ alleged or proven crimes would be manifestly unconstitutional and morally reprehensible,” said Ford. Plus, Trump cites no actual legal authority to justify the executive order. The text of the order does not cite the U.S. Code or any acts of Congress beyond the terrorist-designation law, which does not mention citizenship.
“If the Trump administration wants to serve a day-old fish stew to the justices, it shouldn’t be surprised when they spit it out,” said Ford.