The Birthright Citizenship Executive Order

Note: I consider my friend Robert J. Hansen a legal expert. He’s not an attorney by trade, but he has an unmatched understanding and knowledge of legal issues, intelligence, history, and other relevant issues. Rob is the person to whom I turn for objective, factual insights on election security and legal guidance.

This is why I asked him to write this article on the recent Supreme Court Barbara decision. Unlike others with hot takes on the meaning of the majority decision and the dissents, Rob actually read the nearly 200-page decision, and this is why I chose to turn to him for understanding instead of emotional squealing.

From Rob: While in graduate school for computer science I was deeply involved in voting security, which in turn led me into civil rights, digital forensics, cyberwarfare, Russian influence operations, cryptocurrencies, and a half-dozen other things that are Nicki's preferred flavor of professional catnip. When she needed a just-the-facts brief on the Barbara decision she reached out to me, and now you can have it, too.

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Guest post by Robert J. Hansen

The Supreme Court released an important decision a few days ago, but it sure hasn’t received much news coverage. At issue was the narrow question, “is Executive Order (EO) 14160 a legitimate exercise of Presidential power?”

That was the EO Trump issued which claimed to end birthright citizenship for those born in the United States to undocumented parents. It worked its way through the courts as Trump v. Barbara, where at each stage the Administration suffered humiliating defeats in the form of one stay after another. The Trump administration petitioned the Supreme Court for certiorari and received the nod: it would be argued before the full Court.

This is about the time the commentariat lost its collective mind and started talking about the case as if it were a referendum on the Fourteenth Amendment itself. It was never that. The purpose was only to determine if the EO was lawful, and if not lawful, which laws it violated. (Executive orders, by definition, are inferior to laws.)

Ultimately, our nine-justice Court issued six (six!) opinions.

Roberts, Barrett, Jackson, Kagan, and Sotomayor thought the EO was precluded by the United States Constitution.

Jackson and Sotomayor filed an additional opinion elaborating their take on subjects not addressed in the majority opinion.

Kavanaugh thought the Constitutional argument against the EO was sketchy, but that the EO violated the Immigration and Nationality Act (INA), and that was enough reason to cancel it.

Thomas and Gorsuch thought the Constitutional argument against the EO was sketchy, but that any child born to parents permanently domiciled in the United States—whether their residing here be lawful or not—would of course automatically be a US citizen.

Note: Even if Thomas and Gorsuch’s opinion had won the day, they still would have preserved birthright citizenship for the vast majority of those benefiting from it.

Alito was the most supportive of the EO and supported a quite narrow view of the Fourteenth Amendment.

Gorsuch filed a separate opinion making clear that he and Justice Thomas were in full, vigorous support of the earlier Wong Kim Ark decision.

The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Rep. 6a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle." It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides -- seeing that, as said by Mr. Webster, when Secretary of State, in his Report to the President on Thrasher's Case in 1851, and since repeated by this court, "independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations."

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Now that there have been six opinions filed, every talking head seems to think it was a hysterically close 5-4 decision. Honestly, it’s the kind of misinformation so egregious it makes my head hurt.

Let’s look at things carefully.

Trump has an unhealthy obsession with immigrants being the ruin of this country (unless they’re attractive women from Central Europe). I firmly believe his goal in this executive order was to strip American citizenship from vast numbers of people who would be otherwise entitled, for no other reason than their parents were here illegally.

Let’s say that Kavanaugh, Roberts, and Barrett—all three conservatives who supported the outright blocking of the executive order—suddenly decided to make common cause with Thomas and Gorsuch. Now the Thomas-Gorsuch opinion prevails: the EO is upheld but its scope is radically reduced. Were you born here to long-term residents? Yes? You’re a citizen. (That loud clattering you heard was a platter of McDonald’s fries, extra ketchup, being thrown against the wall in the White House dining room.)

If your side of the argument can lose three justices to the other side, and the worst case scenario is a technical loss where you still get 90 percent of what you want, then your side is in a lot stronger position than you’d think by simply calling it a 5-4 majority.

Bottom Line: Everyone rooting for sanity and birthright citizenship should take a victory lap and breathe easy for a bit. We won. We won handily. It wasn’t even close. Celebrate this Fourth of July weekend, then come back on Monday ready for the next bout.