Don’t Freak Out When We Lose the Birthright Citizenship Case

Posted For : Rotorblade

Let’s be honest about something that many people supporting the challenge to birthright citizenship may not want to hear. The effort to win this case at the U.S. Supreme Court is very unlikely to succeed. That may be frustrating, but understanding why is more useful than reacting emotionally when the decision comes down.

This prediction is not based on any grand conspiracy or the belief that the justices are incapable of understanding the issue. The more realistic explanation is that the legal system works in ways that often make dramatic changes difficult, especially when long-standing interpretations of the Constitution are involved.

Personally, I agree with those who believe the modern interpretation of the Fourteenth Amendment’s citizenship clause is flawed. Many arguments have been made over the years about the meaning of phrases like “subject to the jurisdiction thereof,” and those debates are well known. But at this stage, the core arguments themselves are unlikely to determine the outcome of the case. The Court is more likely to resolve it on a narrower procedural question rather than addressing the constitutional issue directly.

Before getting into that, it’s important not to dismiss the opposing legal arguments as irrational or foolish. That attitude often leads to underestimating the other side. Lawyers regularly face opposing counsel who sincerely believe in their positions, just as they believe in their own. The interpretation of the Fourteenth Amendment that grants birthright citizenship has existed for nearly a century and a half, which means many judges and legal scholars consider it persuasive even if others disagree.

When lawyers ignore opposing arguments because they seem weak, they sometimes find themselves surprised when a judge takes those arguments seriously. Effective legal strategy requires understanding the other side’s reasoning so it can be addressed properly.

With that in mind, the most likely outcome is that the Court will reject the case brought by President Trump’s executive order on birthright citizenship without deciding the larger constitutional question. Instead, the majority of justices could rule that the executive order itself has procedural problems that prevent it from being enforced.

If that happens, the decision would avoid directly ruling on whether the Fourteenth Amendment requires birthright citizenship. The three liberal justices might write separate opinions expressing their views on the constitutional question, but those opinions would not become the binding precedent of the case.

This approach would follow a long-standing principle in constitutional law: courts generally try to avoid declaring something unconstitutional if the case can be resolved on other grounds. Judges often prefer narrower rulings that sidestep major political controversies when possible.

Birthright citizenship is certainly a controversial subject. Any ruling that dramatically changes a constitutional interpretation that has existed for generations would generate intense public reaction. Courts historically move cautiously in such situations and often leave the status quo in place unless there is a compelling reason to overturn it.

Major constitutional reversals are rare and often take decades. The decision in Roe v. Wade, for example, remained in place for nearly fifty years before the Court ultimately overturned it. Asking the Court to abandon a century-old interpretation of the Fourteenth Amendment is a significant request, and the justices may choose not to do so in this case.

That does not necessarily mean the effort was pointless. Even if the executive order fails, the legal arguments raised during the case could help shape future policy discussions and legislation.

During the arguments, several ideas emerged that might allow Congress to address concerns related to birthright citizenship without directly changing the Constitution. For instance, lawmakers might focus on clarifying what it means to be “subject to the jurisdiction” of the United States.

One justice raised an interesting example: imagine a child born in the United States to Iranian parents, while the Iranian government claims the child as a citizen who owes military service. In that scenario, the child could theoretically have obligations to another country. Questions like that highlight how allegiance and jurisdiction might be defined more precisely through legislation.

Another issue discussed was birth tourism, where foreign nationals travel to the United States specifically to give birth so their child obtains American citizenship. Modern transportation makes this possible in ways that were unimaginable when the Fourteenth Amendment was written.

Some justices noted that the existence of new circumstances does not automatically change the meaning of constitutional text. However, policies addressing birth tourism could potentially be handled through immigration laws rather than constitutional reinterpretation. For example, visa policies or other regulations could discourage or limit travel intended solely for this purpose.

Other proposals could include changes to immigration enforcement policies or penalties related to violations of immigration law. These types of measures might address some of the practical concerns surrounding birthright citizenship while remaining consistent with the current interpretation of the Fourteenth Amendment.

Ultimately, the broader constitutional question is unlikely to be settled by this case alone. The interpretation of birthright citizenship that exists today will probably remain in place for the time being.

Still, raising the issue has begun a national conversation and opened the door for further legal and legislative efforts. One court defeat does not mean the larger debate is over.

Legal battles rarely result in a perfect record. Even successful legal strategies involve losses along the way. In fact, many trial lawyers say that anyone who never loses a case probably isn’t taking enough difficult cases to begin with.

The important thing is to keep pushing forward. The Justice Department under President Trump has achieved significant victories in many other legal battles, even while facing occasional setbacks. Losing a case is part of the process when attempting major legal changes.

Rather than becoming discouraged, the more productive approach is to continue working toward solutions, learning from each challenge, and preparing for the next step in the fight.

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