Top US court evades issue of birthright citizenship

The United States Supreme Court issued a 6-3 ruling, which denied the federal courts the right to block executive orders nationwide. The US Federal Government of President Donald Trump too sought a limited ruling from the Supreme Court. The government challenged the federal courts’ authority to issue orders blocking the executive directives nationwide that a baby born in the United States does not automatically gain the US citizenship. This is part of Trump’s agenda to restrict immigration. Three federal courts in Maryland, Massachusetts and Washington state have issued orders that the presidential order should be blocked nationwide.

That is, the President’s order cannot be implemented anywhere in the country and against nobody. The question before the Supreme Court was whether the federal courts have the authority to issue orders blocking nationwide the implementation of executive directive. The majority of the Supreme Court, the conservative six, have ruled that the federal courts do not have the right to issue orders blocking executive directives nationwide.

The majority opinion written Justice Amy Cony Barrett had however said that the government cannot implement its orders for 30 days, and the federal courts have been asked to look to give specific remedies to those who have appealed, and not provide relief to everyone across the country.

President Trump had of course claimed victory. The Supreme Court was not into playing the political game. The dissident opinion was written by Justice Sotomayor along with Justice Kagan and Justice Jackson. The dissenting judges argued that the federal courts had the right to stop a law that is patently unconstitutional – the President’s order saying that anyone born in the United States does not become a citizen – because there is no other alternative.

The two sides are arguing slightly different positions. The majority opinion as written by Justice Barrett recognizes the issue whether the President order reversing what is guaranteed by the 14th Constitutional Amendment stands the test of law. Justice Barrett says, “…the principal dissent (Justice Sotomayor) argues because the Executive Order is unconstitutional…” the Executive Branch has no right to impose [it] against anyone. The principal dissent’s analysis of the Executive Order is premature because the birthright citizenship issue is not before us. And because the birthright citizenship issue is not before us, we take no position on whether the dissent’s analysis is right.”

It is clear that Justice Barrett is taking technically right and narrow view of the case before the court. But Justice Mayor in her dissent opinion has laid out the case clearly and in a straightforward manner. She wrote: “Children born in the United States and subject to its laws are United States citizens.

That has been the legal rule since the founding, and it was the English rule well before then. This Court once attempted to repudiate it, holding in Dred Scott v. Sandford (1857) that the children of enslaved black Americans were not citizens. To remedy that grievous error, the States passed in 1866 and Congress ratified in 1868 the Fourteenth Amendment’s Citizenship Clause, which enshrined birthright citizenship in the Constitution. There it has remained, accepted and respected by Congress, by the Executive, and by this Court. Until today.”

Justice Barrett and Justice Sotomayor are arguing along different lines. Justice Barrett will find it hard to wriggle out of the implications of the Fourteenth Amendment. She found an easy way out by saying that the issue was not before the Court. The issue will come up before the Court quite soon, and she and the majority conservatives in the Court will have to take a position.