Don’t preemptively concede the birthright citizenship question

Trump is taking concrete steps to nullify the plain text of the 14th Amendment:

President-elect Donald Trump’s transition team is drafting several versions of his long-promised executive order to curtail automatic citizenship for anyone born in the U.S., according to people familiar with the matter, as his aides prepare for an expanded legal fight.

Trump, who has railed against so-called birthright citizenship for years, said during his first term that he was planning an executive order that would outright ban it. Such an order was never signed, but the issue remained a focus of Trump’s immigration proposals during his re-election campaign. He has said he would tackle the issue in an executive order on day one of his second term.

Weeks before he takes office, Trump’s transition team is now considering how far to push the scope of such an order, knowing it would almost immediately be challenged in court, according to a transition official and others familiar with the matter. The eventual order is expected to focus on changing the requirements for documents issued by federal agencies that verify citizenship, such as a passport.

[…]

Trump’s allies say a legal fight that makes its way to the Supreme Court is the point of the executive order.

“Force the issue and see what happens,” said Mark Krikorian, executive director for the Center for Immigration Studies, a group favoring immigration restrictions that was close to Trump’s first administration. Even with the court’s conservative majority, Krikorian isn’t optimistic about Trump’s chances.

The fact that even Krikorian doesn’t see this as a slam dunk is good reason to heed what Jamelle is saying here:

i have plenty of thoughts on why it matters that this is an illegal order but here i’ll just comment that i think liberals who throw their hands up and say “it doesn’t matter” have self lobotomized themselves into thinking that trump is god king of america

[image or embed]— jamelle (@jamellebouie.net) December 8, 2024 at 8:17 AM

The fact the relevant constitutional text is unambiguous does not mean that we can be certain that the Supreme Court will reject the Trump administration’s attempted nullification. But to throw up one’s hand and just assume Trump can do whatever he wants is the worst possible reaction. Legal realism does not require the belief that the law never has any constraining effect at all. (I’m so old I remember when people were asserting with a straight face that the Democrats had no choice but to stick with Biden because the courts wouldn’t allow Kamala Harris to appear on the ballot if Biden dropped out before the convention, even though Biden had not received a vote from a single delegate.) Contest Trump’s actions here every step of the way.

And if 5 or 6 of the Court’s Republicans do go full nullification on this, react like Lincoln:

Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.

Most importantly, like Lincoln the next Democratic president should treat such a holding as a nullity.