Transcript:

Dr. Michele Goodwin: 

Welcome to On the Issues with Michele Goodwin at Ms. Magazine. Now, as you know, we report, rebel, and we tell it just like it is. And in this special episode, we are unpacking the birthright citizenship case. It’s Trump’s attack on birthright citizenship, which echoes a Confederate playbook, as, sadly, so much of Donald Trump’s terms in office have, especially this second term.

It’s been filled with stereotype and stigma about women, about people of color, about people who are LGBTQ.

Now, the Supreme Court just last week heard oral arguments in Trump v. Barbara. It’s a landmark case that seeks to fundamentally rewrite the substance and meaning of one of the most important provisions of the Constitution, and that’s birthright citizenship.

And the president seeks to do that by a presidential fiat, just a swipe of a pen.

For over 150 years, though, birthright citizenship has been protected by the 14th Amendment and widely recognized as one of the most important fundamental rights found in the U.S. Constitution. 

Now, fortunately, the justices appeared skeptical.  Here’s Chief Justice John Roberts:

John G. Roberts, Jr.:

Well, starting with that theory, you obviously put a lot of weight on “subject to the jurisdiction thereof,” but the examples you give to support that strike me as very quirky, you know, children of ambassadors, children of enemies during a hostile invasion, children on warships, and then you expand it to a whole class of illegal aliens here in the country.  I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.

Dr. Michele Goodwin: 

But let’s unpack this.

The birthright citizenship case involves a challenge to Donald Trump’s alarming executive order, which he’s entitled, Protecting the Meaning and Value of American Citizenship.  And for those of you who’d like to look up this executive order, you can find it with the following number. Executive Order 14160.

It seeks to dramatically truncate, if not eliminate, birthright citizenship in the United States. It was signed into law on January 20th, 2025, the first day of his second term. And let me say, it was signed then, but it never actually went into law because of district courts stepping in after a challenge to the executive order and issuing what we would call stays, or injunctions, and I’ll talk about that.

This executive order bars citizenship for children born in the United States to mothers who are unlawfully in the U.S, as well as those mothers who are lawfully in the United States, but only temporarily in the country, such as with work, student, or tourist visas.

Now, notably, there’s a significant difference between a tourist visa and a work visa, or a student visa, by the number of years allowed for in those visas. In many ways, they’re not temporary at all. One is actually living in the United States when one is working and has a work visa, or a student visa.

Last year, Trump’s executive order was blocked by multiple district courts across the United States. They issued what are known as universal injunctions, prohibiting the executive order from going into effect anywhere in the United States.

Following this, the Trump administration then challenged the validity of universal injunctions, which have been around for a while, taking the case to the Supreme Court in a case known as Trump v. CASA.

The Trump administration deferred a hearing on the substance of the executive order, choosing instead that the Court issue a procedural ruling. Now, one could argue that that was very strategic on the Trump administration’s part. It has been a court that has been quite generous towards the Trump administration in many ways. There are a number of scholars, constitutional scholars, who are writing about this. Those who are conservative, as well as those who would see themselves as liberal or progressive.

Now, this challenge last week, these oral arguments before the Supreme Court, marks the second time a procedural or substantive challenge to this birthright citizenship executive order. It’s the second time that it’s before the Supreme Court.

In the CASA case, the Supreme Court struck down universal or nationwide injunctions, holding that district courts could grant relief only to the parties in front of it, or in the case of a certified class action litigation.

So, the substantive issues with regard to birthright citizenship were not ruled upon by the Supreme Court. So, that’s what’s at issue and at stake in the oral arguments that we heard last week, and in the flutter of opinion editorials, and news commentary, and Donald Trump showing up, some say in a menacing way, before the Supreme Court, and they’re noting that because that, too, is extraordinary. There’s not been a sitting United States president that has shown up to the United States Supreme Court for oral argument, and then certainly not, bashing members of the Supreme Court right after.

Donald Trump:

Now, it’s very unfair. Republicans, judges, and justices. They always want to show that they’re independent.  I can… I don’t care if Trump appointed me, I don’t care. If…  He doesn’t make any difference to me. I’m voting against him.

Because they want to show their independence. You know, stupid people.

Dr. Michele Goodwin:

At issue in Trump v. Barbara is the explicit language of the Birthright Citizenship Clause and its substantive meaning. The very first sentence of the 14th Amendment states the following.

“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the state wherein they reside.”

Now, this was ratified in 1868. The 14th Amendment sought to address the continued invidious vestiges of slavery. Starting in 1865, after the ratification of the 13th Amendment, which prohibited slavery, former Confederate states enacted numerous laws known as Black Codes, and these black codes barred formerly enslaved Black people from the fundamental liberties and freedoms enjoyed by free white people.

These prohibitions included vagrancy laws, banning Black people from collectively gathering in public. Prohibitions on labor contracting, restrictions on owning and possessing firearms, bans on voting, restrictions on jury service, sanctions against Black people for selling grains and produce.

And forced apprenticeship laws, essentially the lawful stealing of Black children from their parents, believe it or not, thrusting those Black kids back onto plantations for years of uncompensated labor.

These laws were absolutely draconian, insidious in their nature, and a throwback to American slavery.

Now, in his second term, with a swipe of a pen, Donald Trump seeks to wipe away one of the most important provisions of the Constitution and upend Supreme Court precedent. Remember again, the very first sentence of the 14th Amendment is to grant citizenship to those that are born in the United States, and that’s citizenship on a federal level and on a state level. And it was intended to respond to the very horrors that were taking shape, denying citizenship to formerly enslaved Black people. 

But its reach was not only, and has not only been, for the last 150 years, Black people. It’s not been that way at all, as I’ll explain further. But let’s just think about what Justice Ketanji Brown Jackson asked in oral arguments. 

Justice Ketanji Brown Jackson:

One final thing. Prospective. You say prospective we’re supposed to do this, don’t worry about the people who are already here and who would not qualify under your rule. How does this work? Are you suggesting that when a baby is born, people have to have documents, present documents? Is this happening in the delivery room? How are we determining when or whether a newborn child is a citizen of the United States under your rule?

D. John Sauer:

And I think that’s directly addressed in the SSA guidance that’s cited in our brief. What SSA says is there’s currently a system where, for example, Social Security numbers are generated based on the birth certificate. They say this can still be for the vast majority of instances completely transparent. You will still get a — because the —

Ketanji Brown Jackson:

Not on transparent. I’m just talking about the particulars because now you say your rule turns on whether the person intended to stay in the United States. And I think Justice Barrett brought this up.  So are we bringing pregnant women in for depositions? What — what are we doing to figure this out?

Dr. Michele Goodwin: 

Birthright citizenship, listeners, was first announced in the Civil Rights Act of 1866, and you got that right when I said 1866, a Civil Rights Act. I mean, even think about that.

Congress, in 1866, All male, all white male, so very much understanding the urgency of rewriting America. Rewriting America to a better future. A future that would not include the vestiges of slavery. The horrors of sexual assaults and rapes that were inflicted on Black women in order to fuel slavery. So in 1866, after abolishing slavery, they wrote a Civil Rights Act.

And then two years later, they ratified the Constitution once more, seeking to stamp out the insidious echoes of slavery that were brought about through Black codes. For Congress, enshrining citizenship by birth in the United States Constitution was a necessary means of addressing both the discriminatory Black Codes primarily of the United States South and directly rebuking Dred Scott v. Sanford, a horrendous decision that claimed Black people would forever be barred from citizenship in the United States. According to Justice Roger B. Taney and Dred Scott, it’s an 1857 case. In that case, he said that Black people, whether enslaved or not, were “inferior and altogether unfit to associate with the white race.”

You’ve heard that right. A Supreme Court justice in the United States said that Black people were “inferior” and altogether “unfit,” even for association with white race. Now, of course, you could take a pause on that and think about association… Black women breastfeeding white babies. Weren’t they cooking the food, cleaning the clothes, associating in every kind of way through households? In New York, in fact. Forty percent, at one point, 40 percent of the households had enslaved Black people, and of course, this was so fluid throughout the American South. But anyway, in Justice Taney’s mind, Black people were not fit to associate with white people, though there was a lot of associating that was taking place.

In the Supreme Court’s view, Black people had no right “which the white man was bound to respect.”  And simply put, according to Justice Taney, Black people, and these are his words.

“Black people were bought and sold and treated as an ordinary article of merchandise and traffic whenever a profit could be made of it.”

The Civil War, followed by Reconstruction, radically reset America’s downward path, and that downward path that largely, the Supreme Court was implicated in.

And birthright citizenship, along with other protections in the 14th Amendment and federally enacted civil rights laws, were crucial. They were crucial to expanding liberty, freedom, and equality for all people in the United States. And this is why this Trump executive order is so problematic.

As tested in the United States v. Wong Kim Arc case from 1898, birthright citizenship was not exclusive to the formerly enslaved or their descendants.

In that case, the court noted that, “the single question of this opinion is namely whether a child born in the United States, of parents of Chinese descent, who are at the time of birth, are citizens of China, but reside in the U.S, where they are permanently domiciled. Whether that child becomes, at the time of his birth, a citizen of the United States.”

And the Supreme Court ruled in the affirmative.

The Trump administration now argues that the 14th Amendment has never been interpreted to extend citizenship universally to everyone born in the United States.

Let’s listen to how Solicitor General John Sauer, representing the Trump administration, made the case before the Supreme Court, and then we’ll hear from Donald Trump again, in his own words, how he understands birthright citizenship.

D. John Sauer:

The question is, if they give birth to someone in the United States, is that person naturally a citizen? That would turn based on the original public meaning of the clause on the lawfulness of their presence, are they domiciled.

Donald Trump:

Actually, nobody knew what the hell was going on.

Simple subject. Simple subject is uhh, look at the time. It was passed right at the end of the Civil War.

It was for the babies of slaves. That’s it. It wasn’t for billionaire Chinese people who have 57 children that become American citizens. They didn’t have that in mind.

But, you know, it’s hard to explain that to some people.

Dr. Michele Goodwin: 

Listeners, let me share the following. Not only is this interpretation inaccurate, but it also takes a hostile view towards the 14th Amendment.

Compellingly, it also presumes powers that Trump does not have.

As noted by the ACLU, which argued the case, “the Constitution, not the President, defines who is a citizen.”

And that’s absolutely right. And this is something that my students in constitutional law know very well, whether we’re talking about advanced constitutional law, or the courses that are taught to students who are in their very first year of law school. 

We know that there is the rule of law, that there is the separation of powers, and we know that framing constitutional amendments, drafting civil rights laws are not the domains of a president.

The Trump administration’s efforts to eliminate birthright citizenship must be understood alongside a stunning year of rash executive orders, many found unlawful and unconstitutional. Already the administration has been sued at least 650 times.

There’s also been the gutting of the Department of Justice.

In this term, there’s been the disregard for the rule of law, and one could even say that at the first term, but it’s so dramatic now, including disobeying hundreds of court rulings, and reckless federal enforcement actions that have resulted in the killings of Americans, including Alex Pretti and Renee Nicole Good, both in Minnesota.

At its core, this executive order is not only a challenge to birthright citizenship, but an attack on a nation that fought back against the villainy and evils of slavery and Chinese exclusion laws.

It is an affront to the civil rights movement’s victory over separate but equal policies of the Jim Crow era, policies that sought to fasten Black people to segregationist, second-class citizenship.

In the backdrop of mass deportations that specifically target people of color. Trump’s birthright citizenship executive order reeks of discriminatory intent.

The very discrimination that birthright citizenship was meant to prohibit.

And listen in. Listen closely.  By his spate of odious executive orders, Trump is writing the modern-day version of a Confederate playbook.