Even WSJ editors doubt Trump's case will survive Supreme Court filled with his nominees
President Donald Trump's executive order repealing birthright citizenship is before the Supreme Court this week — and the Wall Street Journal's conservative editorial board has a blunt message for him.
"When a longtime legal doctrine is incorrect, the Justices shouldn’t shy away from fixing it merely because of age," wrote the board. "Yet other times there’s a reason the orthodoxy became the orthodoxy, and the case about birthright citizenship, Trump v. Barbara, might be one of those."
The case ultimately comes down to the interpretation of the phrase, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Judges and an overwhelming consensus of legal experts have interpreted the passage as referring to anyone born in the United States, and to whom U.S. law applies. That includes everyone born here except in very narrow circumstances, such as the children of foreign diplomats or an invading army.
Trump, however, wants to invent a completely new definition of "jurisdiction," the board wrote: "The Trump Administration argues ... that birthright citizenship covers only people 'completely subject' to U.S. 'political jurisdiction,' meaning those 'who owe ‘direct and immediate allegiance’ to the Nation and may claim its protection.' Its reading excludes babies born to temporary visa holders, as well as illegal migrants, who 'lack the legal capacity to form a domicile.'"
Ultimately, the board argued, this scheme doesn't hold water, and Trump should stick to the enforcement of the country's immigration laws.
"The U.S. has a strong record of assimilating newcomers, from Asians in San Francisco to Irish in New York to Cubans in Miami, and birthright citizenship has been part of that story. At the same time, illegal immigration has become a serious problem, as the American left refuses to enforce the law," wrote the board. "But the place to fight it is at the border, and Mr. Trump has virtually halted migrant flows. It didn’t require trying to change the settled meaning of the 14th Amendment by executive action."
"Mr. Trump’s order has put the Supreme Court in another difficult position by reopening a constitutional debate with fraught political implications," the board concluded. "The decision may come down to how the originalist Justices read the text and history of the 14th Amendment."