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The Supreme Court is preparing for significant arguments this week concerning President Trump’s restrictions on birthright citizenship. However, there remains an option for the justices to sidestep the constitutional question altogether.
As anticipation builds for Wednesday’s legal showdown, much of the discourse has centered around whether Trump’s policy aligns with the 14th Amendment’s original intent.
Yet, the Court could opt for a simpler resolution: invalidating Trump’s executive order on the grounds that it contravenes a statute enacted in 1940.
‘Subject to the jurisdiction thereof’
On his return to office, Trump issued an executive order which limits birthright citizenship to children whose parents include at least one U.S. citizen or lawful permanent resident.
The order, embroiled in legal battles for over a year, has not yet been implemented. Lower courts have consistently ruled that Trump’s policy infringes on the 14th Amendment’s Citizenship Clause, which guarantees citizenship to all individuals born on U.S. soil who are subject to its jurisdiction.
For months, scholars have relentlessly unpacked that five-word phrase. The true test comes Wednesday, when the country awaits to see just how broad an exception the justices thinks it carves out.
The Trump administration asserts “subject to the jurisdiction thereof” includes only someone who has allegiance to the U.S., so people in the country illegally aren’t entitled to birthright citizenship for their kids.
It’s an argument that upends the 14th Amendment’s conventional understanding, which allows for only narrow exceptions, like the children of diplomats and foreign invaders.
But the Supreme Court doesn’t have to get that far.
Decades after ratifying the 14th Amendment during Reconstruction, Congress in 1940 passed a law defining citizenship. It contained nearly identical language. Lawmakers re-codified it in 1952, and it has been on the books ever since.
So even if Trump’s order aligns with the Constitution, the challengers argue it still runs afoul of that law.
It gives the justices a pathway to rule in the challengers’ favor without reaching the weighty question about the 14th Amendment. That could be an attractive option.
“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” Chief Justice John Roberts wrote as he famously did not join the majority opinion fully overturning the constitutional right to abortion in 2022.
He called it a “fundamental principle” of judicial restraint. The justices also have a separate principle to avoid interpreting ambiguous statutes in a way that makes them unconstitutional.
Trump argues statute is no different
Despite the language being nearly identical to the 14th Amendment, the challengers contend the statute should be interpreted differently.
They argue that even if today’s Supreme Court interprets the amendment like Trump does, that wasn’t the prevailing understanding when Congress essentially copied the language to codify it into statute in 1940. And that understanding is what should control, the challengers argue.
“At that time—as the government all but concedes—Congress understood that the Clause’s ‘jurisdiction’ language incorporated the English common-law rule and exceptions, with the sole additional exception of Native American tribal members,” they wrote in court filings.
The Trump administration pushes back by pointing to Jim Crow laws.
In court filings, Solicitor General D. John Sauer told the justices to imagine a century-old statute guaranteeing “equal protection of the laws.” Lawmakers that passed it would’ve intended it to allow for separate-but-equal facilities. But courts today wouldn’t read it that way, Sauer noted. They’d interpret it to forbid segregation.
Sauer says the same logic should apply to the 1940 citizenship law.
“Because that statute echoes the Citizenship Clause’s language, it is best understood to codify the Clause’s objective meaning, not a late-arising misunderstanding of the Clause,” Sauer wrote in court filings.
Back to Congress?
The Supreme Court plaintiffs say they’d be satisfied if the high court merely rules that Trump’s policy violates federal law, as it would mean that Trump’s executive order wouldn’t go into effect.
It would, however, leave the door open for Congress to get involved and repeal the 1940 law.
So far, lawmakers have not done so despite long efforts.
Republicans like former Rep. Steve King (R-Iowa) introduced proposals to restrict birthright citizenship dating back years, including when the idea was floated during Trump’s first presidency. The proposals never picked up steam.
The current effort is spearheaded by Rep. Brian Babin (R-Texas), another longtime proponent.
Support is growing with Trump now championing the issue. Babin’s 2021 version of his legislation had 31 co-sponsors. The next Congress, the legislation picked up 37.
Now, Babin’s bill has 82. The number has only grown in recent weeks as Wednesday’s argument approaches. Rep. Cory Mills (R-Fla.), Rep. Matt Van Epps (R-Tenn.) and Rep. Scott Perry (R-Pa.) are among those who’ve newly signed on.
Still, the proposal has yet to advance past committee, and it remains unclear if it will ever move forward.
At oral arguments last year at an earlier stage of the birthright citizenship case, which didn’t yet involve the legality of Trump’s policy, Justice Brett Kavanaugh lamented about a general diminished ability to get legislation passed.
Kavanaugh suggested it has led presidents from both parties to “push” with “good intentions” to stretch existing authority via executive action, rather than advocate for new legislation.
“I think that might be the why,” he said.