Trump’s bullying on the 14th Amendment isn’t working as planned

When President Trump returned to the White House last year, he made it clear in many ways that he was determined to do whatever he wanted without regard for the law or the Constitution.

One was his first-day executive order claiming to eliminate birthright citizenship, a core constitutional principle enshrined in the 14th Amendment, adopted after the U.S. Civil War: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

For more than 150 years it has been widely understood, and repeatedly confirmed by courts, that people born in the U.S. are American citizens, with a few very specific exceptions like children of foreign diplomats or invading armies.

In our country, citizenship doesn’t depend on who your parents are or where they came from. It’s part of what makes America, America. It’s part of the Constitution. It is supported by two-thirds of Americans.

Trump doesn’t like what the Constitution says: that all children born here are citizens. There’s a process for changing it, but Trump doesn’t have the patience or discipline for that kind of work. So instead, he pretended he could alter the Constitution by decree. This “it’s the law if I say it is” attitude is why “No Kings” is the theme of pro-democracy rallies that have drawn millions of Americans to events in every state.

Last week, the Supreme Court heard arguments on the constitutionality of Trump’s order. Based on the justices’ questions, most observers believe Trump is headed for a well-deserved loss. The claim that the 14th Amendment doesn’t say what it clearly says is an obvious case of gaslighting. Even some of the justices named to the court by Trump during his first term don’t seem buy it. That may be why Trump — who made a big show out of being the first sitting president to attend a Supreme Court argument — stormed out early.

The case highlights the essential role that independent courts play in our constitutional system of checks and balances. They are meant to protect us from authoritarian presidents ruling by decree. And that affirms the importance of the U.S. Senate taking more seriously its responsibility to protect the courts and the Constitution from the kind of judges Trump is naming in his second term — judges chosen because Trump thinks he can count on them to rule according to his wishes.

Trump’s unconstitutional order on birthright citizenship is part of a larger effort by Trump and MAGA leaders to decide who counts as an American and whose constitutional rights are protected:

Trump and his allies try to use deportation to punish political expression and denaturalization to penalize political opponents.

Trump is demanding that Congress pass legislation that would make it harder for millions of Americans to vote. Last week he signed an unconstitutional executive order to restrict voting by mail.

Christian nationalist allies of the administration assert that non-Christians should be barred from public office and that women should not have the right to vote.

MAGA public officials at state and federal levels try to make it virtually impossible for transgender people to live their lives in peace and participate fully in our society.

If Trump’s citizenship order is allowed to take effect, it will punish babies for the actions of their parents, potentially force millions of Americans to scramble to prove their citizenship and effectively “create an underclass of people who lack the legal protections and opportunities afforded to citizens because of their ancestry,” in the words of reporter Pema Levy.

Lower courts have rejected Trump’s attempted power play on birthright citizenship. From a legal perspective, the Supreme Court should not even have heard this case. It could have rejected Trump’s appeal with a one-sentence order upholding lower court rulings and affirming that the 14th Amendment still means what it has meant for more than 150 years.

But maybe it was a good thing to make the administration publicly defend its claims — which one commentator called “the centerpiece of his nativist immigration agenda” — in front of the skeptical justices.

Maybe a resounding rejection of those claims will put to rest the shameless revisionism of some right-wing legal scholars who once backed the common understanding of birthright citizenship but adjusted their views to be in closer alignment with Trump.

A clear repudiation of Trump’s un-American order, coming in the midst of his administration’s efforts to hijack the America 250 commemorations for his personal and political benefit, would give the rest of us a reason to uplift and defend what is best about America. That includes our system of constitutional checks and balances and our commitment to the idea that no Americans are less American based on their faith or family origin.

Now that will be a reason to celebrate.

Svante Myrick is president of People For the American Way.

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