Trump is Trying to Unravel the Constitution – and SCOTUS Might Let Him
Here’s the cast of characters behind Donald Trump’s attempt to end birthright citizenship in plain violation of the 14th Amendment.
The 14th Amendment
On May 15, the U.S. Supreme Court will hear oral arguments in a case challenging Donald Trump’s claim that he has the right to declare that some Americans born here are not citizens (and can be exiled to countries they never lived in). That outrageous assertion was fashioned as an Executive Order and signed on Inauguration Day, violating the Constitution just minutes after Trump swore an oath to uphold it.
There are so many things wrong with this. But looking specifically to the Constitution (and for context for folks who haven’t specifically studied it), that exertion of purported power stands in open defiance of the 14th Amendment, whose first sentence commands: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….”
Trump’s supposed right to unilaterally change the rights of American citizens is contrary to more than a century of legal precedents on this very issue. Who is a citizen of the United States? The constitutional answer is that every person born here is –unless they are not subject to U.S. jurisdiction.
Who is behind this?
A quick explainer on that last part: Under our laws and international law, the only people in the U.S. not subject to its jurisdiction are foreign ambassadors and their children. Diplomatic immunity bars them from even being forced to pay for parking violations. All other temporary or permanent immigrants are subject to our laws.
And who exactly is advancing this obscene claim that – as of February 2025 – any Americans born here to immigrants with visas, for example, would suddenly no longer be citizens even though for more than 150 years our courts have enforced the Constitution’s guarantee of birthright citizenship? Such counter-constitutional claims have been pushed by far-right operatives like John Eastman. He’s the lawyer facing disbarment or other sanctions for orchestrating Trump’s discredited effort to get Vice President Mike Pence to nullify the Electoral College vote on January 6, 2021.
Another far-right MAGAite who has peddled attacks on birthright citizenship is Ed Martin. He is the far-right lawyer Trump tried to get the Senate to confirm as a U.S. Attorney, as the top federal prosecutor in the biggest U.S. Attorney’s Office in the country. For the past few months, Martin has been abusing his interim post there, for example, by threatening everyone from Senator Chuck Schumer to Georgetown University to Wikipedia. But after investigative journalists reported on Martin’s failure to disclose dozens and dozens of controversial statements to the U.S. Senate Judiciary Committee, as well as his ties to Nazi fanboys, his secret efforts to smear a judge ruling against him, his activities around the January 6 insurrection, and more, Trump was forced to withdraw Martin’s nomination. But Martin and other right-wingers are part of the Trump braintrust behind all this, including the loathsome non-lawyer Stephen Miller, who just floated Trump declaring martial law.
And looking over to the U.S. Supreme Court, who is backing Trump in the case on this issue, which will be argued in front of SCOTUS imminently? Trump apologists are banking on the fact that the Republican majority on the nation’s highest court, helmed by Chief Justice John Roberts, will side with the Republican president in defiance of the plain and obvious language of the Constitution.
But not every Republican or conservative is falling in line. These claims are so vile and counter-constitutional that a Reagan-appointed judge who first heard the case, John Coughenour, called Trump’s effort to deny Americans their rightful citizenship flagrantly unconstitutional. As Judge Coughenour noted, “The fact that the government has cloaked what is effectively a constitutional amendment under the guise of an executive order is equally unconstitutional.” Even John Yoo, the former Bush administration lawyer who tried to rewrite the laws against torture, agrees that under the Constitution, it is binding law that “if someone is born in the United States, then they are a citizen.”
MAGA’s long game
We must also remember that it was Donald Trump who chose to aggressively stoke doubts about the citizenship of Barack Obama, despite a birth certificate and newspaper announcement showing he was born in Hawai’i in 1961. Trump used similar innuendo to go after his former Secretary of State, Nikki Haley, when she dared to run against him in 2024.
If the Republicans appointed to the Supreme Court side with Trump, they will be illegitimately amending key language in our Constitution to serve Trump, like they did just last year in giving Trump unprecedented immunity from criminal prosecution. Even if Trump loses this time, the Roberts Court has already damaged our democracy.
And make no mistake, if Trump were to be given the unprecedented power to strip Americans of their citizenship going forward, he would surely try to claim the power to do it retrospectively, too. The language in Trump’s order would also be used to claim that Kamala Harris never should have been allowed to run against him in 2024 since her parents were immigrant students, even though she is a natural-born citizen.
Do you trust Trump to dictate who is a citizen? Do you trust him to dictate our right to vote or our due process rights under the Constitution? I don’t. No reasonable person would, and the Constitution does not entrust any president with such powers.
What I’m Reading:
Leah Litman’s new book, “Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes”
This knowledgeable and fabulous Crooked Media podcast host tells it like it is.
David Nakamura’s new article on the landmark Supreme Court decision from decades ago that affirmed that the 14th Amendment secures American citizenship for people born here: “His great-grandfather enshrined birthright citizenship. Norman Wong is trying to save it,
This tells part of the history of America that many don’t know.
And, as always, the U.S. Constitution
The president can't just end birthright citizenship on their own. The 14th Amendment says that anyone born in the U.S. is a citizen, and changing that would need more than just an executive order. It would likely need a new constitutional amendment and face a lot of legal challenges.
The corruption from this politicized, blatantly ideologically biased Supreme Court majority is appalling. Talk about 'activist judges' 'legislating from the bench', eye roll! All of this from Justices who claim to be "originalists", whatever that actually means! Habeus Corpus is about as original to the Constitution and the founders as it gets. So is the 1st Amendment's Establishment Clause, but they gleefully misinterpret, pervert and violate that, as well. And then there's 'Citizens' United v. FEC that has ushered in the kleptocratic plutocracy that is dismantling our Constitutional democratic republic in plain sight. All, who have authored or signed on to these obscene decisions, should be impeached, not only Thomas and Alito, IMHO.