← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The Un-American Project
01:20:54
The Trump administration can’t delete birthright citizenship or due process from the constitution. But they’re asking the courts to let them.
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- [00:01]
Dahlia Lithwick
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Mark Joseph Stern
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Dahlia Lithwick
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Mark Joseph Stern
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Dahlia Lithwick
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Mark Joseph Stern
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Dahlia Lithwick
So toss one in your cart and find out why it's the best selling men's antiperspirant for the last decade. Degree Cool Rush is back and it.
- [00:58]
Mark Joseph Stern
Smells like.
- [01:04]
Amanda Frost
I'm Dahlia Lithwick and this is Amicus Slate's podcast about the courts and the law and the Supreme Court.
- [01:14]
Mark Joseph Stern
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 in order to get that child recognized as a citizen who has a right to remain in the United States and not be deported from day one of their lives.
- [01:34]
Dahlia Lithwick
If this is embraced by the higher courts, which I think it should be, then it is a really smart workaround to the problem of every single migrant having to find a lawyer and file an individualized habeas petition to avoid getting transferred to El Salvador.
- [01:54]
Amanda Frost
We are staggering across the finish line of yet another week of an all out detonation of centuries old ideas about citizenship and due process and who gets it and who gets to keep it. At bottom, this administration wants to rewrite not just the Constitution and the law, but the very idea of Americanness. And it's been the judiciary that has almost universally stood in its way. In a few minutes, UVA Law School's Amanda Frost will explain the contours of the birthright citizenship litigation before the courts up to and including the Supreme Court. She's flagging the citizenship stripping endeavors that are already underway. That conversation connected a whole lot of dots for me this week. I thought I knew this material pretty well, but, man, I learned a ton. You're going to want to stick around for that. But first, on Thursday, U.S. district Judge Fernando Rodriguez Jr. Made some big moves in the case challenging Donald Trump's summary deportation of Venezuelan migrants. First, Judge Rodriguez certified as a class all the migrants held in the Southern District of Texas, where he sits, allowing them to sue collectively rather than file individual habeas corpus petitions, as we had feared they would have to do after the Supreme Court's parsimonious decision in April. Next, Judge Rodriguez ruled that the Alien enemies Act of 1798 cannot be repurposed to deport any of these migrants, finding that it does not apply, quote, as a matter of law. And finally, the judge issued the very first permanent injunction, indefinitely blocking the use of that 18th century act to deport migrants within his district, granting them class wide habeas relief. Mark Joseph Stern, my jurisprudential co pilot, is here to explain what all happened in the Southern District of Texas and what it means for the Trump administration's efforts to whisk away what it deems to be undesirable people from the country. Hey, Mark.
- [04:08]
Dahlia Lithwick
Hi, Dalia.
- [04:09]
Amanda Frost
This really is a landmark decision, Mark, and it represents a pretty crushing defeat for the Trump administration. It's worth noting that although judges hate when we do this, Judge Rodriguez is himself a Trump appointee. He's a conservative. He's a Federalist Society member. This is no flaming liberal. But let's start with the class issue if we can, which I think sounds very technical, but it's actually a really big deal after the Supreme Court dissolved the original class, right?
- [04:37]
Dahlia Lithwick
Yeah. I mean, after the Supreme Court ruled in April that these claims had to be filed as habeas petitions in the district where the people are located, we had thought these would have to be individual petitions filed one by one. That is traditionally how habeas is done. And we just assumed, given how stingy the Supreme Court had been, that that's how it would have to be done here. But Judge Rodriguez said no. And this is a really important aspect of his decision. He said, look, there's at least 100 people here. They're all raising the exact same claim against the exact same application of the exact same law to them. And he acknowledges that the Supreme Court has never explicitly blessed this idea of a kind of class action in habeas under the rules of civil procedure. But then he says that courts have the power to create what he calls a class like remedy under the All Writs act, which is this super broad statute that empowers courts to take, quote, necessary steps to aid their jurisdiction. If that law sounds familiar, it's because it's the exact same law that the Supreme Court used two weeks ago to halt the late night deportations of migrants from Texas. And so I think it makes a lot of sense for Judge Rodriguez to essentially say here, look, if you can use this kind of super statute to block deportations before the government has even responded, you know, before all of the justices have even finished writing their opinions, if the law allows you to do that, surely I can use it to consider and answer the common question of law raised by this whole class of migrants. So I know that gets in the, in the weeds a little, but if this is embraced by the higher courts, which I think it should be, then it is a really smart workaround to the problem of every single migrant having to find a lawyer and file an individualized habeas petition to avoid getting transferred to El Salvador, which, as we know, was really becoming a trap for them because the Trump administration claimed that it only had to afford these individuals 24 hours of notice before sending them off to El Salvador. Just finding a lawyer in that time, let alone filing a personal habeas petition, would have been a herculean, if not impossible task. So that element of this decision itself, it's not a rebuke to the Supreme Court. It builds on and in some ways works around with the Supreme Court had ruled by saying, yeah, I understand this is habeas. We can't have a traditional class action. But all these guys are arguing the same thing, and they have a right to do it in the same way at the same time.
- [07:04]
Amanda Frost
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. But that wasn't all right, then we get a ruling on the merits with respect to the invocation of the Alien Enemies Act. And it's really the first time that we've had a judge say, no, no, no, you cannot use this law in this way. That's a huge, huge, big deal, too.
- [07:33]
Dahlia Lithwick
It's massive. And this, too, is another technical point that's really important. So previous judges had issued temporary restraining orders and preliminary injunctions saying, yeah, we don't really think this law applies. It doesn't seem like it applies. When we balance the equities, when we look at irreparable harm, it seems like the scales really tilt against the government. This is the very first time that a court has issued a defense definitive and final decision saying the Alien Enemies act simply does not apply and cannot be used, and then issued a permanent injunction saying, nope, you just can't do this. It will not work. And what Judge Rodriguez did is very straightforward. He quoted the law, which I now feel like we've quoted a gazillion times, but I'll do it again. This statute only applies to, as relevant here, any invasion or predatory incursion that is perpetrated, attempted or threatened against the territory of the United States States by any foreign nation or government. And it speaks more broadly of being a law to be used during wartime. And so Judge Rodriguez analyzes these terms as they were used in 1798 when the statute was enacted. He looks at dictionary definitions, he looks at common usage, and he says, these are words that described either a military force or a kind of organized armed force. They simply cannot apply to alleged members of a gang who are just accused of committing occasional acts of violence, violence in regular contexts like robbery or murder or theft. That's not an armed militia invading the nation. That's just criminals doing criminal things. And so even if it's true, that trend, Aragua, this Venezuelan gang that these individuals are accused of belonging to, with very little evidence that this gang is going around and committing crimes and even committing murder, none of that makes it a foreign nation or government, and none of it makes the gang a military force that is engaged in some kind of organized incursion against the United States. And he points out that the proclamation that Trump signed actually makes no reference to any existence of an organized armed group of individuals entering the United States. And it certainly doesn't claim that they did so at the direction of Venezuela and that they were trying to conquer the country or assume control over part of the country. And so the judge here is using Trump's own poorly drafted declaration against him, saying, well, I read the text here, and none of it even bothers to make the accusations. That is a necessary predicate to invoking this law.
- [10:07]
Amanda Frost
This is a sort of a funny opinion, Mark, because on the one hand, as you just suggested, it really does represent a kind of a beat down with the originalism, textualism stick. I mean, there's no question he's not equivocal that he's done his level best to do the research. He says he's clear, I didn't do all the research, but this is just not a plausible reading. But the ruling itself is not, you know, a sort of a searing piece of legal writing. It's actually pretty Bloodless and pretty cold even. It's just a very dispassionate piece of jurisprudential writing. And I wonder what you think animates that choice to approach this in this, you know, pretty chill way.
- [10:53]
Dahlia Lithwick
It's funny. I'm probably making this opinion sound more exciting rhetorically than it is. I mean, it's very flat, self consciously flat. Almost like the judge is making clear that he's not leaping to defend the constitutional rights of these individuals. He doesn't even say, hey, it sure looks like these guys are innocent of these charges and are, are subjected to an injustice. He just goes line by line over the law and compares it to history and text and says there is a mismatch. And I think, if I had to guess, you know, first of all, of course he's a conservative. He's a Federalist Society member. This is how he does law. He's not a jurist filled with passion or outrage. This is remarkably different from, say, the opinion that was written by Judge Patricia Millette on the D.C. circuit saying that Alien Enemies act didn't apply, even though the two opinions really reached the same conclusion. And I think this is how you write an opinion that the Supreme Court will uphold. Of course, every lower court wants the Supreme Court to affirm their handiwork. And here I think he's trying to craft an opinion that simultaneously fits with his bloodless approach to the law, I think it's fair to say. And that five or more justices will say, yep, sounds right to me. And I just, I, I have to note, like, this is such hardcore textualism that the opinion includes an appendix featuring Judge Rodriguez's own extensive research with dozens of historical uses of the terms in the Alien Enemies act, including letters from George Washington, James Madison, Thomas Jefferson, other founding fathers and framers, to show that the language of the statue was always used in connection to a military invasion and never used in connection to anything like gang violence. And he included, included hyperlinks, which I really appreciate, like, thank you, Judge, from the bottom of my heart, you are better than many journalists. And linking to the source here just to show to readers, like, in case there's any question, go read this letter from James Madison. This isn't me. This is the father of the Constitution explaining why the terms of the Alien Enemies act could not possibly fit here. And again, to me, it seems like it's the kind of opinion he wanted to write. It's certainly the kind of opinion you want to write when you are playing with high stakes and you want the Supreme Court Firm you top to bottom.
- [13:14]
Amanda Frost
So there's one line in the opinion that I think is a little bit worrisome, and it's that, you know, the court says that while it may not adjudicate the veracity of the factual statements in the proclamation or the propriety of the steps taken by the President, it retains the authority to construe the aea. And I think that a lot of smart readers say, holy cow, he just essentially gave Trump permission to come back and lie better next time. That feels like it could be the sort of exception that swallows the rule. And that while this is a very, very satisfying ruling on the merits, he's giving the President the biggest out in the history of, you know, presidential power.
- [14:01]
Dahlia Lithwick
I am concerned, and this is a concern that Ryan Goodman, among others, has flagged, and I think it's totally legitimate. You know, Judge Rodriguez, being a kind of hardcore conservative textualist here, it's a double edged sword, because at the same time that he says there's a mismatch, this law doesn't apply. He so embraces a very broad conception of the so called political questions doctrine, which is this idea created by the Supreme Court that there are certain disputes between the political branches that the judiciary simply can't weigh into. And the administration has been claiming over and over again in this litigation that judges have no ability to weigh in on this particular question. And Judge Rodriguez said, no, as a matter of law, I can weigh in. But then he takes pains to say I really can't second guess the fact finding of the government and the factual claims of the president. So again, the proclamation that Trump issued just didn't make the baseline allegations necessary to raise a colorable claim under the Alien Enemies act that these individuals can be summarily deported. But Judge Rodriguez said, you know, maybe a different kind of proclamation could, maybe different facts could lead to the lawful application of the Alien Enemies Act. For instance, you know, he said there's no allegation that an organized armed group of individuals are trying to conquer a part of the country. But what if Trump comes back with a new invocation of the Alien Enemies act and says they're trying to take over Aurora, Colorado? Trend has formed a militia that's attempting to seize territory of the United States. And so I must summarily deport all of these individuals. I don't know what Judge Rodriguez would do there, but I do think this is a concerning loophole in the opinion. You know, I wouldn't even call it a loophole, actually. This is a conservative judge trying to Be honest about how he feels. And here he's, you could say, splitting the baby, shooting down the administration quite harshly on the law, but leaving room for the administration to come back with different allegations, different so called facts, and to say, well, you know, you told us what the law requires and we are now giving you the factual predicates that you say are necessary for us to invoke it.
- [16:09]
Amanda Frost
So speaking of double edged swords, I guess we have to end here. Mark, the vibe when this came down on Thursday was like, holy cow, this is amazing. This is Texas. The bad news is, holy cow, this is going up to the 5th Circuit. This is going up to the court most likely to reverse it. And then I guess it goes on a rocket ship to the Supreme Court. And then I guess my question is, are you and I waiting in August for an emergency order? I need a vacation. But really, Mark, what is the trajectory of this? Because it feels like it definitely, definitely kind of rocket fuels this to go to the 5th and on to SCOTUS.
- [16:48]
Dahlia Lithwick
Yeah. So, I mean, look, the 5th Circuit is a hotbed of far right extremists, many of whom are currently jostling for and auditioning for a Supreme Court slots. Right? You have judges like Kyle Duncan and Andrew Oldham and James Ho, Trump appointees from the first term who are all actively trying out for the Supreme Court and attempting to be as provocative and hard right and trollish as possible because they are convinced, probably correctly, that that's what Trump is looking for. Not just someone who's credentialed and polished and conservative in the acade, like Justice Gorsuch or Justice Kavanaugh, but a brawler who will stand up and own the libs and defend Trump no matter what. Like Judge Cannon, for instance, or Judge Kacmarik. And so into this hotbed, we now have injected probably the most controversial high profile litigation of Trump's second term so far. A lot depends on what three judge panel first gets this case. You know, you could have a panel of kind of normie conservatives appointed by George W. Bush and maybe a handful of Democratic appointees who affirm Judge Rodriguez. You could also have a panel of Trump judges who reverse him in, you know, a scorching repudiation of his careful textualism and say Trump gets to do whatever he wants because he's Trump. I don't know what will happen. I will point out that James Ho at least has already said that he thinks that migrants simply crossing the border to seek asylum can constitute an invasion under the Constitution and the courts cannot second guess the government's proclamation of such an invasion or. Or the government's response to such an invasion. He made that Argum trying to lay the groundwork to revoke birthright citizenship for the children of migrants. But I think the reasoning would apply here too. You know, he could say, look, they're invading. If the government says they're invading, the government can do whatever they want. But no judge joined James Ho when he made that far out opinion. And I think that's a sign that maybe even some of the flamethrowers think it goes a little too far. But again, it's audition season and everybody wants to get cast as the next Supreme Court justice. So I do fear that this could see a reversal of the fifth Circuit before it ultimately gets to the Supreme Court, where I'm holding out real optimism that five or more justices will side with Judge Rodriguez.
- [19:02]
Amanda Frost
And are they gonna do that in August, Mark?
- [19:04]
Dahlia Lithwick
They're gonna do it right as our planes are taking off for our joint tropical vacation, which, surprise, I already bought the tickets for. You didn't know this. Neither do our respective spouses, but we're going to the Caribbean together.
- [19:18]
Mark Joseph Stern
Really?
- [19:18]
Dahlia Lithwick
Yeah. It's how I'm gonna airdrop you the tickets.
- [19:21]
Amanda Frost
Thelma and Louise into the Caribbean as the shadow.
- [19:24]
Dahlia Lithwick
Margaritas on the beach as the shadow.
- [19:26]
Amanda Frost
Duck it hails down upon us. Mark, we're gonna see you later in the Amicus plus smokeless cigar bar. And Mark's gonna take us through the arguments in a really blockbuster religious liberty case that saw the Supreme Court's conservatives getting ready to toss out just separation of church and state altogether in favor of state funded religious charter schools. This is a big, big deal that gets a little lost in the shuffle this week. Slate plus members are going to be able to access that bonus episode right after this one. If you are not a Slate plus member, I'm going to share details on how to hear our bonus amicus shows after my interview with Professor Amanda Frost, who is just about to teach us a masterclass on birthright citizenship. Thanks, Mark.
- [20:14]
Dahlia Lithwick
Thanks, Dalia.
- [20:15]
Amanda Frost
We're going to pause to hear from some of our sponsors.
- [20:20]
Mark Joseph Stern
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- [20:23]
Dahlia Lithwick
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Mark Joseph Stern
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- [20:44]
Dahlia Lithwick
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Mark Joseph Stern
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- [20:57]
Amanda Frost
This podcast is brought to you by Progressive Insurance. Fiscally responsible financial geniuses, Monetary magicians. These are things people say about drivers who switch their car insurance to Progressive and save hundreds because Progressive offers discounts for paying in full, owning a home and more. Plus, you can count on their great customer service to help you when you need it. So your dollar goes a long way. Visit progressive.com to see if you could save on car insurance, Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states or situation.
- [21:37]
Mark Joseph Stern
This episode is brought to you by the ACLU the Trump administration is pushing a dangerous and sweeping agenda to control our bodies, our families and our lives. President Trump has signed far reaching executive orders that target transgender people, their rights and their health care, but the ACLU and their partners are in court fighting back. Meanwhile, the ACLU is also at the Supreme Court fighting to protect the future of transgender people's freedom and bodily Autonomy for all. US vs Scarmetti centers on a Tennessee law restricting health care access for trans youth. Tennessee has asked the Supreme Court to expand the ruling that overturned Roe v. Wade. This would not only violate the constitutional right to equal protection under the law, it hurts everyone's freedom to control their bodies and lives. Learn more@aclu.org autonomous.
- [22:31]
Amanda Frost
On his first day in office, Donald Trump issued what would become a signature executive order that was bold, unprecedented, and almost certainly unconstitutional.
- [22:43]
Mark Joseph Stern
This next order relates to the definition of birthright citizenship under the 14th Amendment.
- [22:47]
Dahlia Lithwick
Of the United States.
- [22:48]
Mark Joseph Stern
That's a good one.
- [22:49]
Dahlia Lithwick
Birthright.
- [22:51]
Mark Joseph Stern
That's a big one.
- [22:52]
Amanda Frost
What if I battle?
- [22:55]
Mark Joseph Stern
Could be.
- [22:57]
Amanda Frost
We think we have good ground, but you could be right.
- [23:00]
Mark Joseph Stern
I mean, you'll find out.
- [23:02]
Amanda Frost
The order protecting the meaning and value of American Citizenship provides that moving forward, only children born to parents who are American citizens or green card holders are citizens of the U.S. the order was enjoined immediately and the Supreme Court will hear arguments in less than two weeks in a very rare May settlement session on what is admittedly a technical question about the scope of these injunctions. In the weeks of mayhem that have followed that first high on Sharpie Fumes Executive Order Day, it is clear that the lodestar of this administration is going to be about making America whiter again, and that this will be done through every tool and every strategy they can lay hands on, including fake invasions that require invoking the Alien Enemies act and claim that not everyone even deserves due process. They want to deport us citizens too, and to denaturalize those they deem unworthy. At bottom, this is all part and parcel of a wholesale project to permanently redefine what it means to be an American. As my next guest put it, some provisions of the U.S. constitution are broad and confusing, but the citizenship clause is not one of them. Them. End quote. Amanda Frost is a professor of law at the University of Virginia School of Law, where she is director of the Immigration, Migration and Human Rights Program, and she writes and teaches in the fields of constitutional, immigration and citizenship law. Her work has been published in numerous academic journals as well as the Atlantic, the New York Times, the American Prospect, the Washington Post, and that Slate. Her book, you Are Not Citizenship Stripping From Dred Scott to the Dreamers was published in 20. She is currently working on a book about birthright citizenship. So, Amanda Frost, welcome to Amicus. I can't tell you that I was looking forward to this conversation, but I really, really feel that I need this conversation. It's good to have you.
- [25:13]
Mark Joseph Stern
Thank you. I'm happy to be here.
- [25:15]
Amanda Frost
And I thought maybe you can just start with birthright citizenship. And I know your upcoming book is gonna be about that. And I wonder if you can just lay out for us what the 14th amendment says about who is a citize. I want you to be as specific as you can about the problems that the Congress was seeking to solve that Reconstruction Congress, and why they chose to do it with the citizenship clause of the 14th Amendment.
- [25:44]
Mark Joseph Stern
Yes. So I'm just going to start by reading the citizenship clause, which is one sentence, the first sentence of the 14th Amendment to the Constitution, which was ratified in 1868. So in that Reconstruction era, and that sentence is, quote, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the state wherein they reside. And as I mentioned, it's the first sentence of the 14th Amendment, which of course gives us the due process protections and the equal protection clause and was generally added to our Constitution to respond to the problem of how to integrate the formerly enslaved into the United States and to move forward with a Constitution that actually realized the great principles of the Declaration, Declaration of Independence, and in particular the Declaration that all men are created equal. I'd say all persons today. So a little bit of the history and we can dig in more. But I'll give you just a brief overview to start with, sort of. Remarkably, the US Constitution did not originally define who was a citizen. It does refer to citizens. You have to be a citizen to serve in Congress and you have to be a natural born citizen to be president. So we knew that at least some people could be citizens of birth, but it wasn't clear who was a citizen of the United States. And that was a fraught question in a nation dealing with racialized slavery, with a Native American indigenous population and with numerous groups of arriving immigrants. So there was a debate in this country up until the Civil War, of course, culminating in the Dred Scott decision in which Chief Justice Taney said no black person, slave or free, could be a citizen of the United States States. And he also said, and I think this is often overlooked, that also deprived of citizenship was anyone who was of an inferior or quote, subordinate class. Those people couldn't be citizens either. And it's not clear exactly who was referring to, although knowing Chief Justice Taney's jurisprudence, we can guess involved lots of different non white groups and perhaps also disfavored immigrant groups like we can imagine in the future. Children of Italian immigrants or, or children of Irish immigrants would have also been quote, subordinate or quote unquote inferior in Chief Justice Taney's and others view. So that was the situation going into the Civil War. We obviously fought a war to end slavery and to preserve the Union. And coming out of that war, 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. And they said this, but it also recognized the need for a few narrow exceptions. It wanted a universalist view of citizenship, guaranteeing that status to almost everyone with a few carve outs. Who are those carve outs? Well, they're the typical common law carve outs to birthright citizenship that had always existed in England under the principle of use solely. So children of diplomats, for example, example, or children of invading armies in occupied land. Not a situation happily that we've had in the United States. And then in addition, the Reconstruction Congress wanted to carve out the children born into Native American tribes. And that was a group that the Reconstruction Congress debated in part due to the fact that Native Americans were separate sovereigns and they wanted to respect their sovereignty. So at the end of that ratification period, they had created this clear language granting citizenship to just about everybody with a few narrow exceptions. And that's what that language of subject to the jurisdiction thereof, that caveat in the citizenship clause I read at the outset, that's who was referred to. Everyone else is a citizen.
- [29:35]
Amanda Frost
We're going to get back to that caveat because it starts to become the thing that attempts to swallow the rule. But I'd love, just by way of table setting, Amanda, for you to also just walk us through what President Trump's Executive Order on birthright citizenship purports to change in what you just sort of set out as the fairly self explanatory, very clear, reasonably universally acknowledged language of the 14th Amendment.
- [30:05]
Mark Joseph Stern
Before January 20, 2025, this was a constitutional question on which just about everyone had agreed. Certainly the Executive of the United states, up till January 20, 2025, for many, many decades, had agreed with this universalist theory of birthright citizenship, which meant that everyone born in the United States, whether to a green card holder or a citizen or a temporary lawfully present immigrant or an undocumented immigrant, was a citizen. And the courts had agreed as well, and Congress had also been consistent in that approach and that interpretation. So on January 20, 2025, President Trump issued an executive order. He'd promised to do so on day one, and he lived up to that promise. And the Executive order says that you are only a citizen if you're born in the United States to at least one parent who is a citizen or green card holder. So that means a child born to parents of whom they are undocumented immigrants or even legally present, but temporary immigrants, those children at birth are not set aside sense. One more interesting sort of wrinkle to this Executive Order is that, of course, in interpreting the Constitution, the Executive Order says it's always been wrong. Up until now, we've gotten it wrong. We're saying the right interpretation says Trump is mine, which says these large numbers of people are now not citizens. It's fully retroactive. I mean, you can't interpret the Constitution to mean something new going forward. So that means that all these people alive today, some of whom may well be serving in Congress, some of whom may well be serving in, in, you know, various state government positions, all of whom have been voting, they're not citizens. Now, another section of this executive order says that the government will not issue or accept citizenship documents granting these people citizenship, these groups that it's carved out from citizenship going forward. So it, that's perspective, but frankly, it's confusing as to exactly who this would apply to and how it would affect them. And any way you cut it, it means that 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 in order to get that child recognized as a citizen who has a right to remain in the United States and not be deported from day one of their lives.
- [32:28]
Amanda Frost
I want to just do a quick sidebar here with the caveat that this show is, like, committed to avoiding the Is this a Constitution crisis? Question that I'm not sure is as helpful as people think it is. But I will say that our friend Professor Jamal Green at Columbia notes, and I think there's some validity to his claim that if you are gonna carbon date the constitutional crisis, it's not the president is confronted by a Supreme Court order and doesn't follow it. He says, we've actually been in a constitutional crisis since the very moment the president signed this order that was blatantly unconstitutional. And the fact that there was no one around him saying this is blatantly unconstitutional is the constitutional crisis. And I would just love at the highest level, Amanda, if you have any sort of thoughts about what it means for a president to sit down and sign an executive order that is so clearly, as you've laid it out, in tension not just with the language of the 14th Amendment, not just in tension with a 1940 statute, but in tension with every court that has looked this issue. What is that, if not in some fashion a constitutional crisis?
- [33:43]
Mark Joseph Stern
I'll just repeat what something you just said, which is that every court that so far has addressed this question of the constitutionality of the executive order has said immediately, in fact, with lightning speed, that it is unconstitutional. And these include judges appointed by Republican presidents such as Reagan and Bush, as well as Democratic appointees. And they have called it blatantly unconstitutional. That's the language of these judges. So it is failing in the courts. And I wouldn't say passes the laugh test. So is it a constitutional crisis that the president issued this order? Well, I'd say it's part of this president's strategy. The lawlessness is part of this president's strategy. And of course, we don't see it just with this executive order about birthright citizenship, but also with the Alien Enemies act cases in which the claim to trigger that statute, that we're being invaded by Venezuela is lawful bubble on its face. The claim that people aren't entitled to due process before they're removed from the United States is blatantly unconstitutional. The president recently said he would deport what he called, quote, unquote homegrown Americans, meaning people that in fact he acknowledges are citizens, he would nonetheless remove the ones he doesn't like from the country. So this is part and parcel of an approach that is lawless, that claims the executive has, has authority above every other branch of government, that there is no statute or constitutional provision or institution that can prevent him from simply imposing his will on the American people and in punitive fashion for those who he does not agree with or support or thinks doesn't support him. That's terrifying. And, you know, I certainly agree that it's the start of a constitutional crisis.
- [35:27]
Amanda Frost
You had started to go down this road, and I would love for you to answer it in the most fulsome way you can. The Supreme Court were to eventually approve the administration's theory that on some random date that we haven't named yet, that has been postponed because of the injunctions, but at that point, massive swaths of the country lose citizenship. You've talked about this a little bit in terms of, you know, suddenly there's an affirmative burden on every single American to prove citizenship and the ambiguity. But can you just, in the broadest sense, tell us what it means for education, for benefits, for all ways in which people live their lives and have kind of come to rely on the citizenship clause? Because I think that it's easy to say this is just going to affect other people. I think your point is this affects every single thing, from SNAP to medical care to public schools.
- [36:24]
Mark Joseph Stern
Yes. And so there's a number of rights and benefits and obligations that come with being a citizen of the United States. The most important, I would certainly say today, is the right to both enter and remain in the United States. There's also federal benefits, as you just mentioned, such as food assistance, snap, educational benefits. There's also, of course, the right to get a Social Security number to work legally, which is something you cannot do if you are in the country illegally and you're not a citizen. So all of these come with the rights and benefits of citizenship. And I should quickly add also Medicaid, which might be particularly important to the situation of a newborn baby in a hospital who may. May be born with some complications that require some medical care. So first, listeners should know that immigrants generally, and undocumented immigrants in particular, don't have access to almost any federal benefits. So for those who weren't sure about that, the answer is, if you're undocumented immigrant, you have almost no federal benefits available to you. And even if you're legally present in the United States, as an immigrant, you are deprived of most benefits. You certainly don't have the right to enter and remain absent, you know, executive branch approval. And you don't have the right to work legally unless your visa status allows for it. So these are all off the table for noncitizens. So in the situation in which the Trump administration's Executive order goes into effect, which I hope we never face, those newborn children, and there's about, As I said, 3.6 million children born in the United States every year. They're born without access to those federal benefits of Medicaid, of snap, of the food assistance program. They're born without the right to remain in the United States. They conceivably could be deported even if their parents are legally present in the United States, because parents can be here on for years on student visas, on H1B visas, allowing temporary work. The parents might even be in the process of getting a green card, which can take a couple of years. And yet if they give birth to a child under this executive order, that child is at birth according to the Executive order, not a citizen. There's no legal status for that child child. They could be deported from day one. The child also can't get a passport. And you can imagine that parents who maybe had been in the US three or four years getting a PhD in a STEM field, have a child maybe want to go home to see their family in their home country. They can't leave with that child because that child would not be permitted to enter again without a passport. In fact, the child couldn't leave without a passport and could even be born stateless if they could not get a passport from the parents home country. So you might say, well, this just affects the people affected by that executive order, which is about 300,000 children a year estimate are born into that category of born to undocumented immigrants or to lawfully present temporary immigrants. But no, that would be a mistake because in fact, under that Executive order, we have to do something that this country has never required since the Civil War, which is force people to prove their lineage and ancestry in order to convey citizenship to their child. And that to my mind is a deeply un American problem position. And of course it's going to get worse. Day one of this Executive Order being in effect, I'd have to show I was born in the US and then I'm a citizen for my child to be granted a citizenship. But 20 years from now, the next generation, it won't be good enough to show that parents were born in the US that's no longer sufficient. Right. So after that it'll be, you have to delve back generations to make sure that every one of your ancestors was legally present and a citizen at the time of being birth in order for this child generations later to be considered a citizen. As I said, I think it's a deeply un American test of ancestry and lineage. And it's just what the Reconstruction Congress wanted to end. And it's frankly the view that Chief Justice Taney had for our nation and Dred Scott that I had hoped we had rejected once and for all.
- [40:13]
Amanda Frost
And that's slightly the answer to the question that, well, wait, the United States is an outlier. It's one of a handful of countries, I guess there are about 30 of them, Amanda, that actually afford birthright citizenship. And I think your answer to that question is yes, that's by design. We, we want to be the outlier.
- [40:33]
Mark Joseph Stern
Yeah. There's a couple of interesting points to that question. One is yes, there's about 30 other countries, 32 other countries that have what I'll call the universalist automatic birthright citizenship rule that the United States has included. Among those, by the way, are Canada and Mexico. It's a Western Hemisphere phenomenon. Many of the countries that have this rule are in the Western Hemisphere, so we're not alone. However, it is an unusual rule, at least as compared to Europe, which has abandoned the universalist view of birthright citizenship. Although I will add, they do still give very liberal citizenship. So France, for example, if you're born to undocumented immigrants in France, that child is not automatically a citizen at birth, but they are automatically a citizen at age 18 if they lived in France for at least five years. So it's actually a far more liberal rule than the Trump executive executive order. But putting that aside, this is what Eric Foner, the great historian, has said is the good kind of American exceptionalism. It is true that America adopted and embraced this full throated universalist view of birthright citizenship because it comports with our values. We are a nation that from its founding days said we reject an inherited monarchy. Our Constitution says we reject titles of nobility. We have a provision in our Constitution that rejects the idea of corruption of blood, meaning that we don't punish the child for the sins of the parent. And I think that is uniquely and so importantly American. Each generation starts anew equal with everyone else. We don't look to your parents status or title to decide your merit. And I think that's one of the great values of our society. It's something that's made our nation strong. It's something that helped us integrate immigrants and their children into our country better than Europe has done. For sure. Sure. And that's why I think this assault on birthright citizenship is of course very intentionally assault on what it means to be an American and I think also an assault on our values as a country.
- [42:30]
Amanda Frost
We are going to take a short break. Today's episode is sponsored by NerdWallet Smart Money podcast Life comes with big money questions like Are target date funds a smart or lazy one way to invest? Should you pay off debt or invest extra cash? Can you deduct your dog as a home security system on your taxes? NerdWallet Smart Money podcast has the answers Their finance journalists break down investing strategies, tax planning, and smart ways to build wealth and navigate big financial decisions. Work smarter, not harder, on your finances this year. Follow NerdWallet Smart Money podcast wherever you listen. And stay tuned until the end of the episode to hear the Smart Money trailer. It seems every day there's something new to worry about. While there's a lot that's out of our control, there is one thing you can control your family's financial future with life insurance through SelectQuote SelectQuote has been one of America's leading insurance brokers for more than 2 million million families since 1985. Their licensed insurance agents can work to tailor a life insurance policy for your individual needs in as little as 15 minutes. They work with carriers that can get you same day coverage with no medical exam required. And if you have high blood pressure, diabetes or heart disease, that's not a problem. Select Quote partners with carriers that can cover those conditions and others. It's important to protect your family and your health and life insurance insurance can provide that peace of mind. Selectquote they shop, you save, get the right life insurance for you for less@SelectQuote.com Amicus Go to SelectQuote.com Amicus today to get started. That's SelectQuote.com Amicus let's return now to my conversation with UVA's Professor Amanda Frost. Earlier on I said that the rabbit hole I like to eschew on this show is the is it a constitutional crisis rabbit hole because I I don't think it's the right question. The other one I've learned to avoid is is this good originalism? Which I also think is not a super useful question. But here we are. I think we have to engage with this and I It feels like Groundhog Day because last year we were doing the 14th amendment's insurrection clause. And you know, the history is really clear on the insurrection clause. If you do, it means what it says. And the court apparently didn't agree. But here we are. I think that if we're going to say that the U.S. supreme Court, as currently constituted, the majority of them are committed to this project of originalism, what is the best possible originalist reading of the birthright citizenship provision in the 14th amendment as drafted in 1868 that lets you say, say that as originalists, this makes perfect sense. And I know it has to do with that language you talked about in response to my first question that subject to the jurisdiction thereof, but can you just try to put on an originalist hat and tell me what the best argument is on the other side? That's not a laugh out loud argument.
- [45:46]
Mark Joseph Stern
One thing I'll just say is a sort of threshold matter is I love the birthright citizenship provision, the citizenship clause, because I think every method of constitutional interpretation support supports the universalist view, that is that almost everyone is a citizen with a few narrow exceptions, including the originalist approach, the original understanding approach. But I think your question is, well, what's the best arguments for opponents of birthright citizenship or the universalist view that is the best arguments for the Trump administration's exceedingly narrow view of who gets citizenship at birth. So I'll do my best here to just describe the arguments that I see being made in the Trump administration briefs, which I will say are not entirely coherent. I mean, I'm a law professor. I'm very comfortable with articulating legal views I don't agree with for the purpose of explaining them to students and making sure everyone understands every legal position out there. And certainly I do that regularly when I describe Supreme Court cases that I don't necessarily agree with, but nonetheless are the law of the land. I have trouble articulating the Trump administration's arguments in favor of this restrictive view of birthrights, that is citizenship, because I don't think they make a ton of sense, but I will do my best. So they hone in on this language, subject to the jurisdiction thereof. So the citizenship clause says all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. So the Trump administration says, well, subject to the jurisdiction thereof carves out both children of undocumented immigrants, immigrants and children of lawfully present but temporary immigrants, and says they are not citizens. So why not? Well, the argument the Trump administration gives is they say, well, jurisdiction doesn't mean just regulatory jurisdiction, that is the power to legislate or enforce laws against these people. They concede undocumented immigrants and lawfully present immigrants have to follow the law, as they would have to concede. They say, no, what that means is political jurisdiction. Jurisdiction. And then they say, and political jurisdiction requires that you have complete allegiance. That's their language, complete and total allegiance to the United States. Again, the word allegiance appears nowhere, but that's what they say it means. And they say, this is what the Reconstruction Congress intended it to mean. And then they say, if you entered the United States illegally or overstayed your visa because you violated our laws, you don't have allegiance to the United States States. And they say temporary immigrants somehow also don't have allegiance to the United States. This is where I'm. I have trouble following their argument. So that is the argument. They have a couple of quotes here and there, stray language from the Reconstruction Congress's debates that they use to try to shore up that argument. A last argument that they make, again with this original understanding, is to say, well, you have to be domiciled in the United States, United States, which means you intend to remain permanently and make it your home. And that is also required in order to be subject to the jurisdiction of the United States. So that's their argument in a nutshell. And I'm happy to then critique it. I hope I've explained it as fairly as I can.
- [48:56]
Amanda Frost
I'd love for you to critique it, but I just want to note that almost everything you've said just now feels wildly ahistoric to me. If I were approaching this, as you said, as, you know, if I'm just. Just a textualist, I'm an originalist. Like, this feels like quite an attenuated set of arguments about plain text in the Constitution with what we know about the intent.
- [49:19]
Mark Joseph Stern
Yeah. So a couple. A couple pieces to that. One is many of these words that they're now using appear nowhere in the text. Nowhere does it say anything about allegiance. Nowhere does it say anything about domicile. Right. Those are words known to that Congress. They didn't use them in this sentence. So. So a textualist should have real problem with that interpretation in terms of original understanding. There are so many problems with this argument. And so let me just start by saying, first and foremost, the Reconstruction Congress wanted to create a clear rule on citizenship. It had just emerged from a Civil War, precipitated in part by the Dred Scott decision that it denied citizenship to all black people in the United States States, whether Free or enslaved. And as I mentioned at the outset, to anyone who was subordinate or inferior, which, you know, left a lot of people's citizenship in question, the Reconstruction Congress said, no, we must end any questions about citizenship. So Jacob Howard, the senator in 1866 who introduced the citizenship clause language that was adopted by the nation, he said his proposed language, which is now in the Constitution, Constitution, quote, removes all doubt as to what persons are or are not citizens of the United States. That's. He thought this was crystal clear. Now, he wasn't saying we should now have a test of allegiance, case by case, who has allegiance, which groups do, which groups don't. No, he had the opposite view. He was like, I'm creating language here that creates certainty as to who's a citizen, and it's just about everyone. We have another senator, Senator Wade, who said, we need to fortify this language of citizenship, make it very strong and clear. And then he said, and this is so prescient, he said, because there's a, quote, danger that when party spirit runs high, this provision may receive a very different construction from that which we would now put upon it. So he's foreseeing a future in which Trump's elected and starts questioning people's citizenship. And he says, let's make this provision so clear, this campaign to happen. Frankly, I think it is as clear as you could possibly make it. And, of course, I think that that's why the Trump administration's legal arguments are made up out of whole cloth and incorporate words and language that no one used or put in the text. One argument that the Trump administration and their supporters make is that the Reconstruction Congress didn't intend for the citizenship clause to apply to the children of undocumented immigrants. And they say it didn't intend this because they say the Reconstruction Congress had no idea there was such a thing as an undocumented immigrant or an illegal alien, as they put it, because they didn't exist in 1866. So that's just wrong as a factual matter. In fact, as great scholarship has shown by Jack Chin and Paul Finkelman and Jerry Newman, the Reconstruction Congress was well aware of the fact that there were many people living in the United States in violation of immigration laws, such as laws prohibiting the importation of slaves. And certainly enslaved persons and their progeny were meant to be included as birthright citizens, and yet there were laws barring importation of slaves after 1808, and they were violated. And the Reconstruction Congress well knew this. It had legislated on that very issue. There also of course, were people that came temporarily to the United States as tourists, as visitors. And again, Reconstruction Congress did not carve out the children of those immigrants for exclusion from the citizenship clause. And so we should not assume today that they simply overlooked those groups. So what did the Reconstruction Congress mean though, when it said, well, we don't want birthright citizenship for people who are not, quote, subject to the jurisdiction of the United States States? What were they referring to? Well, they told us what they were referring to first, children of diplomats. And that's a long standing exception to birthright citizenship, which was a legal rule that was practiced in England for centuries, known as use solely or right of soil. So the Reconstruction Congress was basically saying, yeah, children of diplomats, they don't want their children to be citizens. There's even this fiction that they're not really in the United States. An embassy is foreign territory. They get diplomatic immunity. The French ambassador, if she has a child on US Soil, does not want that child to be a citizen of the United States. And the United States acknowledges that by saying, yeah, you're not fully subject to the US jurisdiction, so your kid's not a citizen. That makes perfect sense. The children of invading armies, which actually wasn't mentioned in these 1866 debates. But we can say, all right, that's part of the common law exception. If there's an invading army occupying the US and they have children on US soil, their children aren't citizens. A non issue for us today. Thankfully, that's also a long standing common law exception. The Reconstruction Congress did spend time on the children of Native Americans. That was a complex issue for them, involves lots of interesting and important questions. The Native Americans are separate sovereign tribes. Children born into those tribes are part of those tribes. And in fact, it recognized and was deferential and mostly respectful. I won't say there wasn't some racism in there, but it was mostly a respectful conversation about, about how we do not want to impose U.S. citizenship on this group of people. Now, if a child was born outside a tribe to Native American parents, that child was a citizen at birth. This wasn't a racial test. This was a test about the special sovereign status of Native Americans. And I should add, for the sake of those listening, that in 1924, Congress enacted a statute that said the children of all Native Americans, whether born in tribes or not, are citizens. So today the children born into Native American tribes are birthright citizens, but it's through statutes. So those are the exceptions. And everyone else Congress wanted to give citizenship to and wanted to do so with this bright line, crystal clear rule to avoid any question of courts or the Executive being able to deny citizenship to people born in the US Going forward.
- [54:55]
Amanda Frost
And I guess it's worth talking for a minute about United States versus Wong Kim Ark, which is the 1898 case that seems to have kind of definitively answered all the questions you just raised. Right. We have not. Super, super, you know, race friendly Supreme Court in 1898 essentially putting its imprimatur on the proposition that the 14th Amendment means what it says it means.
- [55:22]
Mark Joseph Stern
Yes. And this is such a fascinating case. So just to frame it a little bit, the US government brought this case in the 1890s as a test case against Wong Kim Ark, a man who was born in San Francisco's chinatown in about 1870 to Chinese immigrant parents. And the US government was looking for a test case to challenge birthrights that citizenship in particular for the children of Chinese immigrants. That's. I've looked at correspondence between the Solicitor General and the Attorney General and the US Attorney in San Francisco. That's what they were trying to do. But the Reconstruction Congress had created this very broad, sweeping language of the citizenship clause that very obviously says that everyone's a citizen regardless of race. Right. It does not create a racial test. And in fact eliminating that was one the goals. So instead the Solicitor General of the United States had to make this really extraordinary argument to the Supreme Court to try to bar citizenship for disfavored groups. And that argument was no child of an immigrant could ever be a citizen of the United States. And the man bringing this case, a man named Holmes Conrad, the US Solicitor General at the time, he had been an officer in the Confederate Army. He came from a slave owning family in Virginia and he very obviously wanted to relocate, litigate the Reconstruction Amendments in the Civil War and go back in time to the period in which he was most comfortable before we amended our Constitution to ensure equality and citizenship for all. In fact, in the U.S. supreme Court, not only did he argue the citizenship clause excluded Wong K. Mark and all the children of immigrants, he also argued that the 14th Amendment itself was unconstitutional. I think his argument was because he felt the Southern states had been coerced into signing it. And as far as I know, it is the one and only Time that the U.S. government has argued to the U.S. supreme Court that a provision of the U.S. constitution is itself unconstitutional. And what's maybe most remarkable is of course, this period of time, 1898, that was just two years after Plessy versus Ferguson said separate was equal and of course, there was a lot of backsliding regarding Reconstruction and a lot of reinterpretation of those amendments to undermine the rights and equality principles that the Reconstruction Congress and the nation had hoped to establish. Establish back in the 1860s. So this was a moment in which birthright citizenship was very much at risk. And this Court took over a year to decide that case. But at the end of the day, that strong, clear language of the citizenship clause prevailed. And what the Court said was, if we had to deny the children of Chinese immigrants like Wong Kim Ark of citizenship, then we'd have to do the same for the children of Irish immigrants and English immigrants and German immigrants and Russian immigrants and. And it all but said white immigrants. And it wasn't willing to do that, and it wasn't willing to upend the citizenship of the nation, to unwind the citizenship of a nation in which everyone but the Native Americans trace back their parentage to an immigrant somewhere along the line. So the court, in a 6 to 2 vote, there was one justice who was absent. So it was eight justices upheld this birthright citizenship clause against challenge, and it established this principle. Yes, this last language is universalist. All persons born are naturalized. That is not the way you'd put it if you want to exclude lots of people. And it applies to everyone. So the Supreme Court established this principle in 1898. The Supreme Court has then repeated this principle in a number of different, more recent cases. Granted, they weren't cases challenging birthright citizenship because we all recognized what we should have today, which is that it applies to everybody. But the Court has said in repeated occasions that children born to undocumented immigrants, first example, are citizens and has assumed that's the case.
- [59:03]
Amanda Frost
Amanda, I want to do one other rabbit hole with you because I feel like you're sort of uniquely positioned to explain this. But if one was to approach this debate, one would find very strongly held views in the legal academy that are raising questions that you are saying are not great arguments and are trying to destabilize. What you and I have both said many times in this interview is a pretty stable reading of the plain language of the 14th Amendment. And I would just love for you to do a beat, if you don't mind, on what it is that the legal academy does when it, for lack of a better word, kind of sanewashes, creates a universe in which maybe there are meritorious arguments on both sides of this and we just miss them for many decades.
- [59:58]
Mark Joseph Stern
First of all, it's my least favorite kind of law review article and my Least favorite kind of academic approach to the law is the kind of article I'm seeing now which says, wait, while for over a century we've all agreed on the meaning of the citizenship clause, I, you know, Joe, law professor, have now found, found some evidence in the record that complicates this question. And my view is now that we've been getting it wrong this whole time based on this stray remark in some, you know, post ratification statement that means we should be reading it all differently from here on forward. That's the tenor of several of the recent articles that I've read. And I think that's terrible scholarship across the board, no matter what position you're taking, whether I agree with it or not, and I hopefully have never written such an article and those I respect don't write such articles. However, your question goes to like, what work is the legal academy doing here in terms of providing cover for these sorts of views? Certainly I don't want to question the motives of people who maybe are truly exploring this question and thinking it's an interesting one. But I will say whatever they intend, 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. Because, you know, most people aren't going to sit down and read a 90 page law review article. I have enough trouble with that myself, and I'm a law professor. So the average person in the public isn't going to do it. But what they're going to see is they're going to see legal briefs filed by the Trump administration that cite a couple different law professors at a couple different schools as supporting their position. And they'll say, oh, this must be a genuine question about which there's genuine debate. And therefore the Trump administration is not behaving lawlessly. They're not undermining our constitutional order. They're not seeking to question the citizenship of those they don't like in a deeply un American way that is antithetical to all of our constitutional values. There must actually be some rationale here, some jurisprudence here, some legitimate arguments here. And so therefore, I will not judge this administration as behaving lawlessly. Right. So that's one the sort of general public reaction. And then of course, those courts that wanted to come out this way anyway, I don't think they're going to be fooled by the scholarship. But if this is the position they wanted to reach anyway, then they can cite these articles as a way of Saying it's not just my personal opinion that I don't like citizenship for children of undocumented immigrants. Look, I'm citing Joe Scholar over here to support my view of what I wish the law was.
- [62:42]
Amanda Frost
Can we do a beat? Which I probably should have done up top, because we've made it sound as though the US Supreme Court, and by we, I mean me, we've made it sound as though the court is about to decide this on the merits. And this is a very strange posture that comes to the court. We got, you know, multiple district court injunctions. We've got injunctions in Seattle and Maryland and Massachusetts, and then appeals courts that deny the injunctions. This comes to the court in a really weird emergency posture, and the Trump administration sort of rushes it up to SCOTUS and then narrows it to, you know, only the named plaintiffs and the groups and maybe the states. Can you just try to explain why this is still a kind of poison pill? Because even this narrow relief that the Trump administration is seeking can be so dangerous, even if we don't get to the merits this time around.
- [63:35]
Mark Joseph Stern
Yes. The Supreme Court case that will be argued on May 15 is so important, it goes beyond birthright citizenship, although, of course, it's extremely important in the context of this executive order purporting to end it as well. So just to quickly frame it, the courts that have addressed this executive order purporting to end birthright citizenship, these courts across the board have said this is unconstitutional. It's at a preliminary stage, so we're not going to issue a final judgment on that, but we are going to say. Say that it cannot go into effect across the nation. Not just for the individual parents, pregnant parents, who are suing to have it not apply to them, not just for the states that have joined, and over 20 states have joined saying the executive order is unconstitutional, and not just for the associations of immigrants and other groups who have sued, but for every single person giving birth, 3.6 million children on average every year, all of those children are going to be born with full citizenship rights. We're going to suspend the executive order or enjoin it from going into effect, you know, until we reach a final decision on the merits. And then, of course, higher courts would weigh in as well. So that's the posture the Trump administration then appealed up to the US Supreme Court, and they didn't challenge at this point. I mean, they're still litigating court, but they didn't challenge at this point, the merits. That is, they're not saying that the district courts should be reversed by the Supreme Court right now on their conclusion as a matter of preliminary injunction, that this executive order should not go into effect for the named plaintiffs. Their problem is with the scope of the injunction. They're saying only the named plaintiffs, only those expectant parents who are named in the complaints should get the benefit of this injunction. Every other person in America giving birth in the year coming forward and everyone who's alive otherwise, who's citizen could be questioned. This executive order applies to them unless and until each and every one of those people sues, I suppose. Right? That would be their only way to get relief from this executive order. And the executive order would go into effect for everyone else in America until the Supreme Court finally addresses the merits and strikes it down, which would take months, possibly more than a year. The Trump administration is challenging the scope of the injunction. And it's of course a challenge that applies not just in this birthright citizenship context, but to everything else it is doing. So it is terrifying to me because first, for example, the Trump administration takes the view that the Alien Enemies act allows it to deport without due process anyone it claims is a member of a Venezuelan gang, right. And to deport them to El Salvador where they're put in a prison, and to do so without due process, without a hearing. So if they were to win on this question of what the scope of the injunctions should be, and they're arguing that the injunctions cannot go beyond the name parties, that it would mean that everyone is at risk of being whisked away from the United States and imprisoned until the Supreme Court, that's the only court that could say it in a way that would apply to the entire nation. So this question of whether lower courts have these power to issue what are called nationwide or universal injunctions is so important at this moment when we see an administration willing to act lawlessly. And I frankly think without these nationwide injunctions, not only would Americans see their rights lies violated in massive numbers, but also courts would get overwhelmed because the only way to get relief would be for each and every person to sue. And I have to say I hope that last point, if nothing else, moves the Supreme Court to decide, it must leave in place this ability of lower courts to issue these so called nationwide injunctions. I'll add, class actions are also a viable way to get broad relief, but they're often not available. And when they're not available, I think nationwide injunctions are therefore essential.
- [67:13]
Amanda Frost
And we've heard from several justices over the years and judges Even in this litigation, lower court judges that this issue of nationwide injunctions is like, such a hot button issue. But there is something really kind of complicated about using this case as a vehicle to try to sort out that issue. I wonder if we can talk about again. You know, I think your last book was about citizenship stripping. And, you know, you make this point that this just doesn't stop this question of who is a citizen. This is not just about conferring citizenship. It's also about taking it away way. And last weekend, we started to see reporting about three US Citizen children, including a child with stage four cancer, being deported. So I do think we need to talk about expatriation. Historian Heather Cox Richardson is suggesting that we're trying to actually strip away birthright citizenship in advance from children already born based on their mother's immigration status. That's already happening. That's not a thing that is coming. That's a move that we're already seeing, right?
- [68:24]
Mark Joseph Stern
Absolutely. Yeah. Those examples that you just mentioned are examples of the administration deciding that it has the power to expel citizens. Right. And, you know, the question of whether those mothers who were not US Citizens should be able to take their children, that's not the question. Of course, if the mothers, together with the fathers had decided they wanted the children to leave with a mother, that's permissible, and you wouldn't want to separate those children from the mother. That's not why what happened here, they didn't give these families any opportunity to say, actually, the children who are US Citizens should stay with a father or another guardian in the United States. They just deported them. And that is the start of deporting citizens. That is something that, of course, this administration wants to do. Trump has said publicly he wants to deport, quote, unquote, homegrown Americans, which is also unconstitutional. But he's now publicly said he wants to do that. And I take him at his word. I take him very seriously. He often does what he says he wants to do. Also, both this administration and last administration, there was a concerted effort to denaturalize naturalized citizens. This is something the Trump administration put lots of money and effort towards. In Trump 1, they actually established an office in Los angeles staffed by 30 or more people to investigate over 700,000 naturalized Americans and to try to strip them of their citizenship and deport them. It did not succeed in significant numbers because courts have to be involved, and that slowed them down, but they were trying. There's a stray remark in an executive order issued on January 20th that said they're going to reinvigorate that denaturalization effort again this time around. And I again take them at their word and think we need to be watching for that. So my book talked about the history of this throughout the United States because I thought it was so remarkable. And as I was writing the book and Trump won, I was watching it happen. So this nation in the past has said, for example, in the 1930s and the 1950s that it's deported Mexican Americans, including US citizens. It called it repatriation, and I put that in quotes because the people it deported oftentimes had never been to Mexico because they were born in the U.S. their parents were immigrants, but they were birthright citizens, and they were deported. We did this in the 1930s. We did this again in the 1950s. We've denaturalized people whose views we didn't like during the Cold war war era. US citizen women who married non citizen men between 1907 and about 19 in the mid-1920s. They automatically lost their citizenship and some of them were deported. We have had an unfortunate history of doing this, and yet I will also say we've had a history of fighting back and preventing it from continuing. And so I hope this is part of that positive legacy where we see that we can fight back and prevail in courts and prevail under this very strong language of the citizens clause, which of course, was intended to prevent exactly what the Trump administration wants to do.
- [71:12]
Amanda Frost
And Amanda, I don't want to walk away from this denaturalization threat without noting that we were seeing reporting just last month from Rolling Stone that Trump officials are talking about denaturalizing US Citizens to send some of them to El Salvador. Right. Seems to be there's some kind of deal afoot that really is kind of effectuating the president's wish for a penal colony that is in another country. And I just wonder, again, you keep saying, like, I take him at his word. This is stuff that is very much, as you just noted, a part of the country's history. It's also very much seems to be part of the plan going forward.
- [71:54]
Mark Joseph Stern
Yes. And I'll say also just for those listening, think about what this would mean if this administration managed to destabilize citizenship for anyone who can't prove that every single one of their ancestors came legally to the United States. And by the way, all lot of us, including myself, when I looked into it, have at least one ancestor who maybe violated those immigration laws. All of those people, you know, I would say millions of people are at risk and naturalized citizens are at risk. The children of immigrants who could get deported are at risk. As we just learned this past weekend, watching children get deported. So this would be the goal, right? Destabilize the secure status of millions of us, and then would we all be deported? Nope, likely not. But, boy, you better be careful not to say anything critical of this administration. You better be careful not to put yourself in the firing line because if you are, you could see your government investigate your status and then deport you. And by the way, based on its approach to Abrigo Garcia, the man who was mistakenly deported at the government's own admission, mistakenly deported to that prison in El Salvador. Once you're gone from the country, they say there's nothing they can do and they have no obligation to get you back even if they made an error. So as you can see, if you combine all these legal rules together, the enormous discretion and power that the president would have to deport anyone he doesn't like, including anyone he thinks is critical of him, which should give us all, should terrify us all, and also, of course, is completely antithetical to our constitutional values.
- [73:25]
Amanda Frost
Amendolates. And if we could, you've made this point that, you know, this is not something we sit around and wait for. You know, this is. This is happening. I always find myself wondering why this immigration broadside is the signature theory of the case. And I know part of it is the sort of Stephen Miller was like hatched in an underground lab to do this. This is his fever dream we're all living in. But I do think it all, every sort of strand of this that we have talked about today feels like it is a really, really deliberate move. And we see this in sort of authoritarian governments all around the world to define and redefine who belongs, who doesn't, who lives in the shadows, who lives in the light. And if you have some thought on why this is the Hill they want to die on, like why they. This issue, having described the ebbs and flows of this issue throughout U.S. history and the ways in which every attempt to make it inclusive and make it broader has failed, in some sense, we are still not what we want to be. But why this as a signature issue at this moment? What does it signify?
- [74:46]
Mark Joseph Stern
The executive order, the title says it all. They want to change the meaning of what it means to an American. And their view of what it means to be an American is someone loyal to this administration. Right. It's been very clear if you're a critic or Vindictive. This administration will target you, as universities have discovered, as researchers have discovered, and as immigrants are discovering. So it is a view of what is the meaning of an American? It means someone in lockstep with this administration. It means someone who looks the way they think an American should look. And we see this when they deport by accident people to El Salvador they claim are members of a gang based on the tattoos, right? Based on, of course, race. No question. They are questioning who gets to claim American citizenship. And by doing so, they are undermining the value of inclusiveness, the values of a nation that has always viewed membership as based on being here among us, rather than a test of answers, history or lineage. So 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. And that is, of course, the same question that we face as a country again and again in our history. That was Chief Justice Taney and Dred Scott saying, you can't be an American. It is impossible constitutionally. And Congress can't make you an American American if you belong to an inferior or subordinate class, whoever Chief Justice Taney and his like thought should fit into that category. 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, other provisions in the 14th Amendment, such as the equal protection clause. And then going forward, we've had this battle again and again. And maybe the more uplifting or optimistic way to respond here is to say we've often had these clashes throughout our history as to what it means to be an American. And we've had to litigate them in not just the courts, but in the arena of public opinion, through our policies, through our approach to our educational system, for example, guaranteeing undocumented immigrants children the right to attend public schools, which we did in the 80s after a debate about that. So this is something we faced again and again as a nation. And I hope that this more recent challenge, we will again rise to that challenge and prevail. 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.
- [77:24]
Amanda Frost
Amanda Frost is a professor of law at the University of Virginia School of Law, where she is director of the Immigration, Migration and Human Rights Program. She writes and teaches in the fields of constitutional immigration and citizenship law. Her most recent book is you Are Not Citizenship Stripping From Dred Scott to the Dreamers. Her upcoming book will be about birthright citizenship. Amanda, thank you so much for your time today. I learned a ton and also I think you painted a real picture of what it is that we are fighting for. So I appreciate it. Thank you.
- [77:57]
Mark Joseph Stern
Thank you so much Dalia.
- [78:05]
Amanda Frost
That is all for this episode. Thank you so much for listening in and thank thank you so much for your letters and questions and comments. You can keep in touch@amicusatslead.com or you can find us@facebook.com Amicus Podcast Mark Joseph Stern and I are reunited with our beloved Amicus Plesketeers in this week's bonus episode where we're talking about the Oklahoma religious charter school case that threatens foundational principles of public school education education in America. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or you can visit slate.comamicus+ to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. Sarah Burningham is Amicus's Senior producer. Our producer is Patrick Fort, Hilary Fry is Slate's Editor in chief, Susan Matthews is Executive editor and Ben Richmond is our Senior Director of Operations. We'll be back with another episode of Amicus next week.
- [79:23]
Dahlia Lithwick
Today's episode is sponsored by NerdWallet's Smart Money podcast. Money can be confusing. Should you invest in ETFs, get a travel rewards credit card, buy a house or just build a really fancy pillow fort.
- [79:36]
Amanda Frost
That could work. No shame in pillow fort game, or.
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Dahlia Lithwick
You could just tune in for clear.
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Amanda Frost
Research backed financial insights.
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Dahlia Lithwick
I'm Sean Pyles, a certified Financial Planner professional.
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Amanda Frost
And I'm Elizabeth Ayola. We're the hosts of NerdWallet's Smart Money.
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Mark Joseph Stern
Podcast where you bring the money questions.
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Amanda Frost
And we bring trustworthy information backed by.
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Mark Joseph Stern
NerdWallet's expert analysis without the jargon or the sales pitch.
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Dahlia Lithwick
Our nerds do the research so you don't have to. We'll help you understand your options so you can make the best decision for your situation. From optimizing your investments and maximizing credit card rewards to making big money moves with confidence.
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Mark Joseph Stern
Plus, we keep it real. No lectures, no judgment, just tips and tools you can use to build wealth and take control of of your finances.
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Amanda Frost
Think of us as your financial gps, helping you navigate your money decisions and.
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Mark Joseph Stern
Avoid expensive wrong turns.
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Dahlia Lithwick
Whether you're planning for retirement, weighing a big purchase, or just want to make your money work harder for you. We've got insights that you can use in real life.
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Amanda Frost
So if you want practical, straightforward, and.
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Mark Joseph Stern
Actually useful financial knowledge, plus a little.
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Dahlia Lithwick
Bit of fun along the way, follow.
- [80:46]
Amanda Frost
NerdWallet's Smart Money podcast on your favorite podcast podcast app.
- [80:49]
Dahlia Lithwick
Trust Us Future youe Will. Thank you.
- [80:56]
Mark Joseph Stern
I'm Leon Nayfak and I'm the host.
- [80:58]
Dahlia Lithwick
Of Slow Burn Watergate.
- [81:00]
Mark Joseph Stern
Before I started working on this show, everything I knew about Watergate came from the movie all the President's Men. Do you remember how it ends? Woodward and Bernstein are sitting at their typewriters, clacking away. And then there's this rapid montage of.
- [81:13]
Dahlia Lithwick
Newspaper stories about campaign aides and White.
- [81:16]
Mark Joseph Stern
House officials getting convicted of crimes. About audio tapes coming out that prove Nixon's involvement in the COVID up. The last story we see is Nixon resigns. It takes a little over a minute in a movie. In real life, it took about two years. Five men were arrested early Saturday while.
- [81:33]
Amanda Frost
Trying to install eavesdropping equipment.
- [81:35]
Mark Joseph Stern
It's known as the Watergate Incident. What was it like to experience those two years in real time?
- [81:40]
Dahlia Lithwick
What were people thinking and feeling as.
- [81:42]
Mark Joseph Stern
The break in at Democratic Party headquarters went from a weird little caper to a constitutional crisis that brought down the President?
- [81:49]
Dahlia Lithwick
The downfall of Richard Nixon was stranger.
- [81:51]
Mark Joseph Stern
Wilder, and more exciting than you can imagine. Over the course of eight episodes, this.
- [81:56]
Dahlia Lithwick
Show is going to capture what it.
- [81:57]
Mark Joseph Stern
Was like to live through the greatest political scandal of the 20th century. With today's headlines once again full of corruption, collusion and dirty tricks, it's time for another look at the gate that started it all. Subscribe to Slow Burn now.
- [82:09]
Dahlia Lithwick
Wherever you get your podcasts.