Speaking for a 6-3 majority in Trump v. CASA, the Supreme Court case involving birthright citizenship, Justice Amy Coney Barrett wrote that while the “executive has a duty to follow the law, the judiciary does not have unbridled authority to enforce this obligation.”
That sentence should strike fear into the heart of every American. And it was the last thing the Framers had in mind when they designed the U.S. Constitution.
If anyone had heard those words when the Constitution was debated, it would have been rejected out of hand. Opponents of the Constitution — and there were many — agreed with Patrick Henry that the proposed new government with its presidential office “squints towards monarchy; and does not this raise indignation in the breast of every true American?”
Barrett’s controversial statement arose from a legal challenge to Executive Order 14160 signed by Donald Trump on Jan. 20. It identified circumstances in which a person born in the United States is not “subject to the jurisdiction thereof” and bluntly stated: “The 14th Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.”
The 14th Amendment came into being as a result of the infamous 1857 Dred Scott v. Sanford decision, a ruling described by Supreme Court Justice Felix Frankfurter as “one of the court’s great self-inflicted wounds.” Chief Justice Roger B. Taney declared in his ruling that slaves had no constitutional rights and were analogous to property, or as Frederick Douglass put it, were no different from horses, sheep, or swine sold on the auction block. Douglass called the decision an endorsement of the slaveholders’ mantra: “A firmer hold and a tighter grip.”
In making its case to the Supreme Court, the Trump administration cleverly did not ask it to rule on the executive order’s constitutionality, but whether federal courts could issue nationwide injunctions against its enforcement.
The court ruled that enforcing Trump’s executive order would only apply in the 22 states and the cities of San Francisco and the District of Columbia that were a party to the lawsuit; it did not apply elsewhere until a final ruling on the order’s constitutionality is issued sometime in the Supreme Court’s next term.
A New Hampshire federal judge has restored the nationwide ban on enforcing Trump’s order thanks to a class action lawsuit filed by the American Civil Liberties Union following the Supreme Court’s decision.
Immediately following that ruling, White House spokesman Harrison Fields said the Trump administration “will be fighting vigorously against the attempts of these rogue district court judges to impede the policies President Trump was elected to implement.”
According to Trump’s retelling of American history, birthright citizenship is a “historical myth” that applied only to the “babies of slaves, very obviously.” He further stated that the 14th Amendment “has never been interpreted to extend citizenship universally to everyone born within the United States.”
Wrong.
In several decisions issued after the 14th Amendment was ratified in 1868, the Supreme Court ruled that persons of various nationalities who were born in the U.S. are citizens who possess the full rights and responsibilities of citizenship.
Nonetheless, Trump said he was “grateful” to the court, calling Barrett’s decision “brilliantly written.”
The three dissenting justices in Trump v. CASA were hardly filled with gratitude.
Justice Sonia Sotomayor called the ruling a “travesty.” She was particularly disturbed by the precedent it created.
“No right is safe in the new legal regime the court creates,” she wrote. “Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship,” she wrote
Justice Ketanji Brown Jackson was particularly aggrieved by the court’s plain disregard of the language contained in the 14th Amendment. “A Martian arriving here from another planet would see these circumstances and surely wonder, ‘what good is the Constitution, then?’” she wrote.
“What really is this system for protecting people’s rights if it amounts to this — placing the onus on the victims to invoke the law’s protection, and rendering the very institution that has the singular function of ensuring compliance with the Constitution powerless to prevent the government from violating it?’”
Jackson finished the thought, writing “Those things Americans call constitutional rights seem hardly worth the paper they are written on!”
With the Supreme Court’s decision in this case, yet another dagger is aimed at the very heart of the Constitution. Retired federal appeals court judge J. Michael Luttig says: “It is no longer possible for the Supreme Court to stop this president.”
A grateful Trump is relishing his newfound powers. After signing the One Big Beautiful Bill Act into law, Trump confessed: “I think I have more power now [than I did in the first term.]”
He’s right. And therein lies a mortal threat to the republic.
In 1860, the Republican Party Platform stated that the “maintenance of the principles promulgated in the Declaration of Independence and embodied in the federal Constitution” was “essential to the preservation of our republican institutions,” adding that “the Federal Constitution, the rights of states, and the union of states must and shall be preserved.”
But Trump’s Republican Party refuses to abide by those inspiring words.
In their new book, “Subverting the Republic,” political scientists Nicholas F. Jacobs and Sidney M. Milkis, write, “The republic is sick.” More to the point, the patient is on life support.
Back in 2020, Minneapolis police officer Derek Chauvin pressed his knee on the neck of George Floyd for nine minutes and twenty-nine seconds, until he died. Like the slaveholders of yesteryear, Trump and the Supreme Court have “a firm hold and a tighter grip” on the very lifeblood of the U.S. Constitution. It’s already eight minutes and counting.
John Kenneth White is a professor emeritus at The Catholic University of America. His latest book is titled “Grand Old Unraveling: The Republican Party, Donald Trump, and the Rise of Authoritarianism.”
