Amicus Podcast Episode Summary: "The Un-American Project"

Amicus with Dahlia Lithwick | Law, justice, and the courts
Host: Slate Podcasts
Episode: The Un-American Project
Release Date: May 3, 2025

Introduction to the Un-American Project

In this episode of Amicus, Dahlia Lithwick delves into the controversial Executive Order titled "The Un-American Project," which seeks to redefine birthright citizenship in the United States. The discussion sets the stage for understanding the legal battles and constitutional debates surrounding this sweeping change.

Judicial Response: Judge Rodriguez’s Landmark Ruling

A significant portion of the episode focuses on the actions of U.S. District Judge Fernando Rodriguez Jr. in the Southern District of Texas. Judge Rodriguez issued a groundbreaking decision challenging the Trump administration's use of the Alien Enemies Act of 1798 to deport Venezuelan migrants.

• Notable Quote:
  Amanda Frost [07:03]:
  “That's a huge, big deal in terms of, as you say, pragmatically allowing them to access the kind of relief they really would have been hard pressed to access.”

Judge Rodriguez’s ruling certified the migrants as a class, allowing them to sue collectively rather than individually, and definitively blocked the use of the Alien Enemies Act in this context.

• Notable Quote:
  Dahlia Lithwick [07:33]:
  “Judge Rodriguez analyzed these terms as they were used in 1798 when the statute was enacted. He looked at dictionary definitions, he looked at common usage, and he says these are words that described either a military force or a kind of organized armed force.”

Expert Analysis: Professor Amanda Frost on Birthright Citizenship

Professor Amanda Frost from the University of Virginia School of Law joins the discussion to provide a deep dive into the 14th Amendment's citizenship clause and the implications of the Executive Order.

Historical Context of the 14th Amendment

Frost outlines the origins of the citizenship clause, emphasizing its role in granting citizenship to all persons born or naturalized in the United States, subject to its jurisdiction. This was a direct response to the Dred Scott decision and aimed to eliminate uncertainty about who qualifies as a U.S. citizen.

• Notable Quote:
  Mark Joseph Stern [25:12]:
  “The Reconstruction Congress knew it had to define citizenship. And so when it discussed this provision that it was adding to the Constitution in 1866, it made it clear it wanted a clear, clear bright line rule, one that would not be decided by courts, but rather would be clear in the Constitution who was a citizen and who wasn't.”

The Impact of the Executive Order

Frost explains that the Executive Order by President Trump aims to limit birthright citizenship to children born to American citizens or green card holders, effectively excluding children of undocumented and temporary immigrants.

• Notable Quote:
  Mark Joseph Stern [30:05]:
  “Every single child born in the United States, if this Executive Order goes into effect, and that's 3.6 million children a year on average, every single one of those families will now have to scramble to provide documentation and prove the citizenship of their child and themselves...”

Legal Battles and Future Implications

The episode discusses the ongoing legal challenges, including the possibility of the case advancing to the Fifth Circuit and potentially the Supreme Court. Frost warns of the broader implications for American citizenship and the potential for widespread destabilization of citizenship status.

• Notable Quote:
  Amanda Frost [74:45]:
  “The goal here is nothing short of redefining the meaning of American to comport with what the Trump administration thinks a good American looks like...That was the debate we had in Dred Scott. We tried to resolve that through this clear language of the citizenship clause and the language of the Constitution.”

Historical Precedents: Wong Kim Ark and Dred Scott

Frost references key Supreme Court cases that have shaped the interpretation of the citizenship clause:

1. United States v. Wong Kim Ark (1898): Affirmed that children born in the U.S. to non-citizen parents are citizens, reinforcing the universalist interpretation of the 14th Amendment.

2. Dred Scott v. Sandford (1857): Denied citizenship to African Americans, a decision overturned by the 14th Amendment.

• Notable Quote:
  Mark Joseph Stern [54:54]:
  “The Supreme Court established this principle in 1898. The Supreme Court has then repeated this principle in a number of different, more recent cases... the Court has said in repeated occasions that children born to undocumented immigrants, first example, are citizens and has assumed that's the case.”

The Role of the Legal Academy

The episode critiques how some legal scholars are providing academic cover for the restrictive interpretation of birthright citizenship, potentially influencing courts and legitimizing the administration’s stance.

• Notable Quote:
  Mark Joseph Stern [59:03]:
  “These kinds of articles provide cover for courts or for decision makers like the states that are signing on to briefs saying they want to restrict birthright citizenship or the Trump administration defending its executive orders.”

Current Threats: Denaturalization and Deportation of Citizens

Frost raises alarms about the administration’s efforts to denaturalize naturalized citizens and deport U.S. citizen children, highlighting cases where children, including those with serious health conditions, have been deported.

• Notable Quote:
  Amanda Frost [68:24]:
  “Right now, this is happening. These children are being deported. This is not a thing that is coming; this is a move that we're already seeing.”

Conclusion: Upholding Constitutional Values

The episode concludes with a call to uphold the inclusive principles of American citizenship as intended by the 14th Amendment. Frost emphasizes the importance of fighting against attempts to redefine citizenship in exclusionary terms.

• Notable Quote:
  Mark Joseph Stern [74:45]:
  “The meaning of American is if you're born here, you are one of us. And I love that definition. That's what the Reconstruction Congress wanted, and I hope that's what we come to embrace as a nation after this fraught moment.”

Key Takeaways

• Executive Order Impact: Aims to restrict birthright citizenship, affecting approximately 3.6 million children born annually to non-citizen parents.

• Judicial Rulings: Judge Rodriguez’s decision represents a significant legal challenge to the Executive Order, potentially setting precedents for collective habeas petitions and the application of the Alien Enemies Act.

• Constitutional Debate: The episode explores the original intent of the 14th Amendment’s citizenship clause and contrasts it with the current administration’s restrictive interpretation.

• Historical Context: References landmark Supreme Court cases that have upheld the universalist interpretation of birthright citizenship, emphasizing the legal and moral shifts required to change this understanding.

• Future Implications: Highlights the potential for a constitutional crisis if the Supreme Court upholds the administration’s narrow interpretation, affecting the fundamental definition of American citizenship and rights.

Notable Quotes with Timestamps

• Amanda Frost [07:03]:
  “That's a huge, big deal in terms of, as you say, pragmatically allowing them to access the kind of relief they really would have been hard pressed to access.”

• Dahlia Lithwick [07:33]:
  “Judge Rodriguez analyzed these terms as they were used in 1798 when the statute was enacted. He looked at dictionary definitions, he looked at common usage, and he says these are words that described either a military force or a kind of organized armed force.”

• Mark Joseph Stern [25:12]:
  “The Reconstruction Congress knew it had to define citizenship. And so when it discussed this provision that it was adding to the Constitution in 1866, it made it clear it wanted a clear, clear bright line rule, one that would not be decided by courts, but rather would be clear in the Constitution who was a citizen and who wasn't.”

• Amanda Frost [74:45]:
  “The goal here is nothing short of redefining the meaning of American to comport with what the Trump administration thinks a good American looks like...That was the debate we had in Dred Scott. We tried to resolve that through this clear language of the citizenship clause and the language of the Constitution.”

• Mark Joseph Stern [54:54]:
  “The Supreme Court established this principle in 1898. The Supreme Court has then repeated this principle in a number of different, more recent cases... the Court has said in repeated occasions that children born to undocumented immigrants, first example, are citizens and has assumed that's the case.”

• Amanda Frost [68:24]:
  “Right now, this is happening. These children are being deported. This is not a thing that is coming; this is a move that we're already seeing.”

• Mark Joseph Stern [74:45]:
  “The meaning of American is if you're born here, you are one of us. And I love that definition. That's what the Reconstruction Congress wanted, and I hope that's what we come to embrace as a nation after this fraught moment.”

This episode of Amicus provides a comprehensive examination of the legal and constitutional challenges posed by the Trump administration's Executive Order on birthright citizenship. Through expert analysis and detailed discussions, Dahlia Lithwick and her guests illuminate the profound implications for American citizenship, legal precedents, and the nation's foundational values.