Anchor Yourself in Truth & Reality: The Supreme Court 14 1/2 Months Late to the Birthright-Citizenship Party
For fourteen months, the Supreme Court’s conservative bloc has slow-walked the most nakedly unconstitutional move of Trump’s presidency: his attempt to erase birthright citizenship by decree. We all know that an un-corrupt Supreme Court would have waived through the nationwide injunction of Trump’s “no birthright citizenship” January 20, 2025 executive order. That’s not what the Supreme Court did. It paused for five months. Then the corrupt neofascist six issued a partial stay, ordering lower courts to narrow their individual injunctions so that they provided relief only to “each plaintiff with standing”. The ACLU was ready: by July 10, 2025 there was a certiified class of “born and unborn babies who would be deprived of their citizenship” under the EO, and an injunction against its application to them issued by Judge LaPlante to apply nationwide. The Trump administration then asks for cert-before-judgment, and the majority bites. That keeps the written appellate record “clean”: no precedential First Circuit opinion fortifying Wong Kim Ark, birthright citizenship, and tying it tightly to modern practice. That gve the Trump administration the chance to get the Supreme Court to write on a friendlier canvas, with only district‑court analysis to distinguish or bury rather than a long, well-written 1st Circuit opinion. It also gave Trump the opportunity to roll the dice on overturning birthright citizenship before the midterm elections likely show strongly how unpopular Donald Trump now is…
To sum up: the corrupt neofascist majority on the Supreme Court declines to summarily bless the nationwide injunction against the EO when it could, spends a term remaking the law of remedies in Trump’s favor in CASA, and then, when the ACLU exploits the Kavanaugh-crated doctrinal gap with a class action, reaches down and pulls that case up before the only hostile appellate court in the chain can strengthen it. Meanwhile, Trump’s allies in the legal academy have been reversing their previous intellectual commitmenst and spent time frantically inventing “pseudo-originalist” just-so stories to justify making American-born children stateless. The Court’s choice to indulge this nonsense—rather than kill it on day one—is a real constitutional crisis.
And thus it is today, April Fools Day, that is Supreme Court birthright-citizenship Trump v. Barbara Supreme Court oral argument day.
My take: The war against birthright citizenship isn’t constitutional interpretation: it’s a disciplined project to build a serf class of people who need to be quiet and accept lowered pay or be harassed by ICE. As part of this project, the corrupt neofascist majority on the Supreme Court stalled, rewrote remedies, and handed Trump his best shot at dismantling birthright citizenship. By dragging their feet the Court opened a door for Trump to try to create facts on the ground. But the Trump administration was not disciplined enough to take advantage of them. And now it looks like—unlike NFIP v. Sibelius—the shifting political tides make a 6-3 or 5-4 overturning of birthright citizenship very unlikely. Thomas will vote for Trump because Trump is a king who can legislate by executive order and the 14th Amendment applies only to ex-slaves. Alito will vote for Trump because otherwise American-citizen Iranian sleeper agents born here will kill him in his bed. But at least three of Barrett, Kavanauh, Gorsuch, and Roberts would have to find a way to claim that not just those with diplomatic immunity but all illegal immigrants are not “subject to the jurisdiction of the United States”. And while one or two might well find such a way, it is unlikely that three will.
But I could be wrong. These are crazy, corrupt people who have little fear for God or man.
The first thing my feed brings to me are the malevolent, misleading, and mendacious screechings of the Trumpists Randy Barnett and Ilan Wurman:
Randy E. Barnett & Ilan Wurman: Trump Might Have a Case on Birthright Citizenship <https://www.nytimes.com/2025/02/15/opinion/trump-birthright-citizenship.html>: ‘The children of people who are present in the United States illegally…. The parents… did not come in amity. They gave no obedience or allegiance to the country when they entered—one cannot give allegiance and promise to be bound by the laws through an act of defiance of those laws…. They and their children are therefore not under the protection or “subject to the jurisdiction” of the nation in the relevant sense...
I must say that illegal immigrants definitely do come in amity: they come here to work, to trade, to contribute, to learn, to teach. They do give obedience to and are bound by the laws. They are under the protection of and also, should they be suspected of civil or criminal tresspassor offense, subject to the jurisdiction of the United States of America. And so are their children,
The Trumpy claim behind their op-ed—one that they do not dare express aloud—is that illegal immigrants have come here to steal and cheat. That is simply false. And they should be ashamed of the company that they have chosen.
Dia-AI tells me that I should highlight the sharp and honorable Jamelle Bouie’s response today:
Jamelle Bouie <https://www.nytimes.com/2026/04/01/opinion/birthright-citizenship-supreme-court-14th-amendment.html>: ‘Backing Trump as he tries to rewrite the Constitution by executive fiat is much of the Republican Party and a collection of conservative legal scholars who rushed, in the wake of his decree, to try to give substance to the president’s thin, unpersuasive argument…. [Ilan] Wurman… [who had] argued previously that his originalism compelled the traditional reading of the birthright clause…. Randy Barnett… despite [previously] co-writing a book that [had] never challenged the consensus view.…
Jamelle sums up:
Jamelle Bouie: ‘The drafters wrote the citizenship clause to repudiate… Dred Scott v. Sandford[‘s]… notion that citizenship was a privilege bestowed by the dominant class rather than a natural right…. The revisionist case rests less on new evidence than it does on Trump’s claim to embody the nation and its desires. If he is ascendant, then the people must want a closed, cloistered society. We know this isn’t true…
Step back: The purpose of Trumpian ICE deportation policy is not, in any serious economic sense, to safeguard “native” jobs or to protect public finances; it is to generate and preserve a labor force whose legal precarity can be weaponized at will. Decades of workplace immigration enforcement—from the post‑IRCA raids of the 1980s through the Swift meatpacking raids in 2006 to the new wave of large‑scale worksite operations under Trump—show a consistent pattern: the state periodically descends on workplaces, selectively terrorizes unauthorized workers, and then leaves the underlying production structure intact. Plants keep running, employers adjust their hiring channels, and the local economy quickly re‑equilibrates around a different, often more vulnerable, workforce—refugees today, visa‑holders tomorrow, always people who know that one phone call to ICE can upend their lives.
The net macroeconomic effect is not an enduring increase in wages or employment for citizens; it is a shift in bargaining power away from labor and toward employers, especially in low‑wage, high‑turnover sectors like meatpacking, agriculture, construction, and services. Studies of worksite raids and deportations document how these operations destabilize communities and firms in the short run but ultimately entrench a segmented labor market in which a “deportation‑proof” workforce is prized precisely because it is easier to exploit, not harder. See, for example, recent reporting on how the 2006 Swift raids in Greeley and elsewhere led meatpackers to rebuild around ever more vulnerable refugee labor, reshaping small‑town economies and politics in the process (High Country News).
This pattern is reinforced by the way the federal government allocates its enforcement resources. Over roughly the past decade, Washington has spent on the order of ten‑plus times as much on immigration enforcement as on enforcing labor standards, even though the latter is supposed to protect more than 140 million workers across nearly 11 million workplaces. Immigration enforcement agencies—CBP, ICE, and their siblings—are large, well‑funded, and politically salient; the agencies charged with policing wage theft, safety violations, and union‑busting are small, underfunded, and perennially overwhelmed. The result is an enforcement regime that makes it rational for some low-wage employers to regard immigration law as their primary personnel tool: hire people whose status is fragile, keep them compliant by credible threats of deportation, and rest easy knowing that the probability of being investigated for wage or safety violations is low. The state thus helps construct and maintain a serf‑like labor caste—often including mixed‑status families and U.S.‑citizen children—whose fear of immigration enforcement suppresses wages and deters organizing, dragging down conditions for everyone working alongside them.
That is the real function of Trumpian ICE policy in the political economy of the United States; the rhetoric about sovereignty and “illegals taking jobs” is, for the most part, after‑the‑fact justification for a system that works very well for employers who prefer a frightened workforce to a free one (Economic Policy Institute).
In this context, the right view of Barnett, Wurman, and company is, I think, well set-out by Ken White, over on BlueSky:
A New And More Reasonable Popehat: <https://bsky.app/profile/kenwhite.bsky.social/post/3mih5lrzrec2m>: ‘It’s a very bad sign how many absolute amoral shameless hacks are willing to conjure up bullshit to support it…. Advocacy does have a moral component. Lying about law and history in an effort to make millions of people stateless is not “doing law the right way.” The notion that advocacy is morally neutral or even inherently good if performed according to cultural ritual remains vapid and harmful. To expand…: the enemies of democracy and freedom are not just hacks like Wurman and Barnett, it’s also the people who demand that we treat Wurman and Barnett as good-faith commentators because they talk in law review articles or NYT editorials. Call evil evil…
My key puzzlement: Why did the Supreme Court not nip all of this in the bud fourteen months ago? That was, literally, its primary job: to keep the government for doing the unconstitutional things that the government has been doing for a year. Was the majority’s thinking last June: “let’s push this off—maybe something will happen to create facts on the ground so that then we can rule for Trump when it comes back”? That is an ungenerous interpretation of the view of the neofascist Supreme Court majority. But that does not make it wrong. The generous interpretation is that the justices were trying to avoid detonating a political bomb while Trump was still arguably the recipient of majority support.
But I do incline to the ungenerours interpretation: they were deliberately letting the clock tick to assist Trump. This Supreme Court has a history of dragging things out so that Trump can create facts on the ground that alter realities, and that may allow them to later issue pro-Trump rulings that they do not dare issue immediately.
Or maybe I am a paranoid psycho.
But I am just doing the normal thing economists and historians do when confronted with repeated asymmetric outcomes: infer that revealed preferences may differ from the Court’s stated ones—in this case, putting as many thumbs on the scale as they dare on Trump’s behalf.
And we have:
Jay Willis: <https://bsky.app/profile/jaywillis.net/post/3migzxixv422z>: ‘Sam Alito asking an extended hypothetical question about whether members of an Iranian sleeper cell would get U.S. citizenship is only lending further support to my theory that season 5 of '24' pickled the brains of an entire generation of Republican voters…
With:
ElieNYC: <https://bsky.app/profile/elienyc.bsky.social/post/3migtyovlw22u>: ‘My friend just said "Shorter Sotomayor: 'Daniel Webster called you a fucking idiot. Thoughts?'" That's the best description available for what's happening here…. Alito is now talking about microwave ovens. Hopefully later he’ll to custome kitchen deliveries. He’s gotta move refridgerators. He’s gotta move color tvs. Sorry, uhh, *legal* analysis is “I have no idea what Alito is talkign about but it’s probably evil in some way I haven’t thought of yet.”…
Amy Coney Barret asks an extremely relevant question. Sauer/Trump's point is that birthright citizenship only counts for parents who have *allegiance* to the US. ACB points out that CAPTURED SLAVES.. had no "allegiance" to the US, and arguably wanted to escape. But their childrens were citizens. She’s talking about people “illegally trafficked” here. Which, obviously, blows up the whole “allegiance” argument. We have ACB. Sauer just had to say that slaves had an “intent to remain” in the US. Motherfucker WHAT??
Roberts again: "You mention in your briefing about 'birth tourism.' Do you have any... information about how... common that is... how much of a problem that is?" Sauer: uhh... media reports... from China. Roberts: "Having said all that, you do agree it has no impact on the legal analysis.”…
Evil Clarence Thomas. He asks how much any of the debate about the 14th A has to do with immigration. His point here, is gonna be, that the 14th A only applied to freed slaves and NOBODY else. That’s what MAGA wants him to say, and he seems inclined to say it….
Alito is now bringing up Iranians. He’s basically asking about “sleeper agents,” the conservative belief that babies of immigrants can be raised as Manchurian Americans who will somehow turn on us when they are *activated* at a later date. And while I know that sounds like crazy pants bullshit to come up at a Supreme Court hearing... remeber that Alito watches Fox News all the time and is NO DIFFERENT than your racist uncle who does the same.
Wang hits him back with "that means that children of Irish, and ITALIAN immigrants would also not be a citizen." Alito is the son of Italian immigrants….
What I *don't* think is a possibility is 5-4 Trump wins. We have ACB. We have Roberts. We almost certainly have Gorsuch (possibly as a concurrence). I CANNOT count to 5 on a Trump win here. So... good. I mean TERRIBLE that it's gottent his far. But good…
And Ken White’s view of the actual Supreme Court proceedings:
A New And More Reasonable Popehat: ‘Lots of good coverage of today’s [birthright-citizenship Supreme Court[ argument to choose from…. A few points. First: it looks good for the rule of law winning, but I thought that before the [presidential] immunity decision, so I am not 100% sure. Second: it’s a travesty this bullshit was treated this seriously — and it did real harm to the nation and democracy that it was indulged…
While off in the side ring of the chaos-monkey circus:
Donald Trump claims that Indianapolis is a city in Minnesota, shortly after turning on Somali-Americans as “low IQ. I can generalize. They’re low IQ people. They’re bad people…” <https://bsky.app/profile/did:plc:4llrhdclvdlmmynkwsmg5tdc/post/3mihqo2kdj225?ref_src=embed>
In that context, I think we can see what this attempt at rewriting the law has really been about. See the birthright-citizenship fight inside a broader Trumpist project: using immigration enforcement to construct a compliant, rightless labor caste. The administration’s ICE policies are not about jobs-for-Americans or border-control. They are, rather, about creating a second-class citizen serf population that can be underpaid, ignored, and threatened with deportation at any moment—even when its members are American citizens by any sane reading of the 14th Amendment.
The corrupt neofascist Supreme Court majority’s pattern of delay and indulgence is best understood as assistance to that project—but actually ruling that “not subject to the jurisdiction of the United States” applies not just those with diplomatic immunity but to all illegal immigrants—or possibly illegal immigrants plus student- and H1-visa holders plus maybe even those with green cards—is something that gets at least two but is unlikely to get five votes, even with current court membership.