Don’t Freak Out When We Lose the Birthright Citizenship Case

Townhall 

Are you ready to be sad? Because I’m not going to sugarcoat it for you. I’m not going to whistle a happy tune as I blow sunshine up your Schumer. We are not going to win the birthright citizenship case at the US Supreme Court. 

It’s not going to happen for a number of reasons. I wish it would happen. I also wish I could get a unicorn for my birthday. It’s not going to happen, and I want to let you know why so you don’t freak out. It’s not the result of a conspiracy. It’s not because everybody else is stupid, one justice notwithstanding. It’s because that’s how the legal system works. You don’t have to like it. You do have to understand it if you don’t want to be emotionally incontinent every time something in a courtroom doesn’t go your way.

I respect you enough to tell you how it’s going to be. And it’s not going to be what you hope.

First, I’m not going to rehash the arguments about birthright citizenship. I already agree with you. I think the long-standing interpretation of the 14th Amendment is incorrect. I know all the reasons, and I’m familiar with the arguments. You don’t need to convince me. Please don’t fill the comments up with, “Well, Kurt, what about this particular bit of legislative history or that particular definition of ‘jurisdiction?’” We’re past all that. It doesn’t matter anymore. The Court is going to do what the Court is going to do, and I’m going to tell you below what the Court is going to do and why. You don’t have to like it, but you should try to understand it if only to be better prepared for the next fight.

One thing, though. Don’t write off the arguments against our position as crazy or insane or frivolous or stupid. When you do that, you underestimate your opponent. Maybe it’s because I’m a lawyer, and every time I walked into court, I believed in my arguments just as my opponent believed in his. Just because you don’t agree with someone else’s legal argument does not necessarily mean it’s crazy. Oh, believe me, there are plenty of crazy arguments out there. But what we’re arguing against is an interpretation of the 14th Amendment that has been in effect for nearly 150 years. Clearly, many people find it persuasive, even if we don’t. 

Again, I’m a lawyer, so I’m used to disagreeing with everybody, and I don’t take it personally. You shouldn’t either. It’s bad for your blood pressure, and it prevents you from rationally understanding the opposing view, which you must do so you can better attack it. A bad lawyer dismisses his opponent’s dumb argument out of hand and fails to take it seriously. He often walks into court and is surprised to find the judge taking it seriously. A good lawyer respects the opposing argument enough to understand it and, therefore, be able to defeat it.

So, here’s your spoiler. We’re going to lose this case, likely on procedural grounds rather than on the issue of birthright citizenship itself. What it is probably going to be is the justices somehow ruling that Trump‘s executive order banning birthright citizenship is procedurally flawed and unenforceable. The majority opinion is probably not even going to reach whether the 14th Amendment requires birthright citizenship. Now, the three leftist justices will probably write a concurrence to that effect, but that’s not going to be the holding of the case that creates precedent. Their avoiding a ruling on the constitutionality of Trump’s birthright citizenship ban is not necessarily because the other justices are cowardly, though it does provide a great excuse to avoid a great controversy. There is a principle in the law that courts will avoid ruling something unconstitutional if they can do so on some other ground. And they will be most happy to do so here.

You see, judges don’t like weighing in on big controversies. This is a controversy, even if you don’t agree with the other side’s position. Many people agree with the other side’s position. Whichever way the Court rules, it’s going to take heat. You take more heat for upsetting the status quo, so judges tend not to do it. They will, but not necessarily the first time they face an issue. Roe v. Wade lasted 50 years before it was overturned. It is a huge ask to appeal to the Supreme Court to change something we’ve been doing for so long. Do not underestimate the tendency of the courts to maintain the status quo. Obviously, this doesn’t apply to leftist judges, as we’ve seen with the disgraceful conduct of the district courts. They often ignore this norm when it comes to Donald Trump's actions. But the higher courts, particularly the Supreme Court, tend to avoid major changes when they can. And here, they can. They can say Trump’s executive order is somehow procedurally inappropriate, and they don’t need to talk about the 14th Amendment at all. I think it’s likely, though not certain, that they will.

I’m not saying this is right. I’m saying this is reality. You can either accept reality and work around it to win, or you can be mad. Personally, I prefer to channel my energy into victory.

And we can have victory. The arguments were very interesting because they set the stage for some statutory fixes that could pass constitutional muster. We’re not going to get a constitutional amendment that is going to change things in the foreseeable future, but by raising these arguments and spotlighting some of the practical consequences of birthright citizenship, Trump has set the stage for legislation that can address some of these issues while remaining in compliance with the birthright citizenship interpretation of the 14th Amendment.

For instance, you remember a lot of the arguments regarding the clause “and subject to the jurisdiction thereof.” There may be ways to craft legislation to define and expand or constrict that concept. One justice offered a very interesting hypothetical, which was that a child of two Iranian parents is born in the United States, but the government of Iran considers him a citizen who owes it military service. Is he subject to the jurisdiction of the United States? But how about Iran? This concerns his allegiance. And that’s a good question. Does a foreign country considering you a citizen who owes it duties mean you don’t owe allegiance to the United States? Perhaps we can craft a law where somebody who is the child of people who are present here legally is not considered to have allegiance to a foreign government, regardless of what the government says, but a child of people who are here illegally retains their allegiance to their parents’ homeland. After all, nobody disputes that ambassadors’ children are not American citizens because they are not under the jurisdiction of the United States. This bears further attention.

We also saw concerns about birth tourism, particularly Chinese women who come here for a week, drop a brat, then head back to Beijing with a Manchurian citizen. I hate saying it, but Justice Roberts was right – the existence of this unforeseen problem (because they didn’t have jets that could whisk a mom into America and back to China when the amendment was drafted) does not change what the text of the Constitution says. We don’t do the living Constitution thing where the Constitution changes over time by some sort of mysterious process. You change the Constitution by amending it. It might be interesting to see how a statute that says a person born to foreign parents in the United States and then immediately taken away for an extended period is not truly under the jurisdiction of the United States fares before the Court. 

You can also change things with immigration laws and regulations governing foreigners. Why are we offering visas to pregnant Chinese women? Or any pregnant foreign women? Maybe we make birth tourism a crime. And maybe we could prioritize removing pregnant illegal aliens. We could also impose a civil penalty for being an illegal alien who gives birth to an American citizen by birthright citizenship, such as a fine or a perpetual ban on legal presence. We should certainly take pregnant women in custody who are near term and send them to Guantánamo Bay, where they can give birth on Cuban soil. Other folks have other intriguing ideas.

So, there are practical steps we can take to ameliorate some of these problems. But the big problem is the birthright citizenship interpretation of the 14th Amendment. Sadly, that’s not going to get fixed by this case. It just isn’t. But we’ve started a discussion of the subject. We’ve started the fight. And now we just have to finish it. 

But it’s not going to help by freaking out, being demoralized, blackpilling, or whining about how we didn’t get our way this time. If you’re not paying attention, let me help you. We’re winning about 90% of our cases. We lost tariffs, sort of, and we are going to lose this, sort of. We’ve won everything else. The Trump Justice Department’s track record is astonishing. 

There’s a saying among trial lawyers that if you never lose, it’s because you never try cases. If we’re pushing the envelope, sometimes we’re going to push until the envelope tears. That’s a good thing. So, don’t be discouraged. We’re never going to win all our court cases. Sometimes we’re going to lose, and it’s going to hurt. So what? Welcome to real life. The answer isn’t to throw up our hands in despair. The answer is to keep fighting.