President Trump has made birthright citizenship a pivotal policy stance for his second term. While Trump can implement his changes, their longevity will depend on whether the Supreme Court agrees with him or not. In short, they won’t.
Contrary to popular belief, the President of the United States cannot create or implement US laws, nor can the President change or erase existing laws or the Constitution.
The act of legislation lies exclusively with Congress; however, the laws that Congress does enact must be signed into law through the power of the presidential signature.
This practice is an artifact of monarchial rule, the royal assent.
Whether or not a law will stand as valid is entirely up to the Supreme Court to decide.
This entire process is not simply a visualization of the Separation of Powers doctrine but of the construct of jurisdiction.
And with Trump’s position on birthright citizenship, jurisdiction is the only issue the Supreme Court will be concerned with.
Because the constitutional issue that Trump has created with his policy stance on birthright citizenship is not one of immigration but one of pure jurisdiction.
The question this Supreme Court would likely analyze is: Does Congress have the power or authority to enact a law that substantively alters the original meaning of a constitutional right?
Simply stated, does Congress have the jurisdiction to redefine the application of the constitutional right of birthright citizenship?
An Originalist View of Jurisdiction
The current Supreme Court has a 6-3 political division – six conservative justices [three Trump appointees] and three liberal justices.
This division crucially influences the Court’s rulings, as conservatives embody a constitutional philosophy called constitutional originalism – while liberals believe the Constitution is a living document.
Originalists [conservatives] believe that the meaning of the US Constitution was locked in time when it was ratified and does not change or evolve due to the effects of modernity.
While originalist philosophy is rooted in the Federalist Papers and how Alexander Hamilton, James Madison, and John Jay thought the Consitution should be understood, it did not become the official position of US conservatives until the Reagan Administration – a staunch originalist himself.
The late Justice Antonin Scalia [appointed by Reagan and the bete noir of liberals] said the US “Constitution is dead” – meaning it is not a living document that has evolved with time. It still is as it was when it was written.
As Trump appointee, Justice Amy Coney Barrett, stated during her confirmation hearing when asked how she approaches the Constitution:
I understand it to have the meaning that it had at the time people ratified it.
Originalists try to capture the Constitution’s original meaning by examining the words used and how the text would have been understood by the people at the time it was written.
In this approach, case law has little influence on the Court’s thinking or ultimate decision.
A quintessential example of an originalist ruling is District of Columbia v Heller (2008).
Heller is an exposé on originalist interpretation, as the late Justice Scalia authored the ruling.
In the 5-4 ruling, Chief Justice Roberts and Justices Alito and Thomas joined J. Scalia (the remaining justices were not yet seated on the bench).
Heller is the landmark case that interpreted the Second Amendment to embody an individual right to own a firearm for lawful reasons – even though the Second Amendment never mentions the individual.
While Heller relied little on Second Amendment case law to arrive at the final ruling, J. Scalia [at 2786] noted, “None of the Court’s precedents forecloses the Court’s interpretation.”
While this Court is likely to rely a bit more on case law than Heller did, it is still a very comparable approach that this Court would likely take to birthright citizenship.
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While it is impossible to accurately predict what the Supreme Court will do in any case, this is the likely conclusion this Court would reach.
Whether this Court would hold H.R. 140 [or a similar law] constitutional or unconstitutional, however, this fact remains: such a ruling would not impact or alter the constitutional right of birthright citizenship for children born in the US to EB-3 and EB-5 Golden Visa holders.
EB-3 and EB-5 Golden Visa holders are permanent Green Card residents of the United States and enjoy 14th Amendment rights and protections as US citizens do.
If being a Green Card permanent resident in the United States is your dream or goal, now is the best time to leverage the EB-3 or EB-5 Golden Visa programs.
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