I have made various posts on this blog on the issue of birthright citizenship and why I think the Citizenship Clause of the Fourteenth Amendment should be interpreted broadly. See here, here, here, and here. Though most of those were really more on specific points, rather than being a general argument on the subject, though I do link to some who have made such "general arguments" in some of those posts. So, with the decision finally having one up to the Supreme Court and their decision made, it makes sense for me to write some about it.
I hope to write up a more in-depth description of my thoughts on the subject, but I also know that I can spend a lot of time on these things trying to get them "perfect," and sometimes such things just languish as a draft forever. So, to ensure I get something out, I am going to post some very quick thoughts on it.
If one wants to see thoughts on a legal scholar first, though, try this post by Michael Ramsey which (so far) is probably the article by a legal scholar, atl east of the ones I've seen, that best agrees with my personal thoughts. But you presumably want my own.
First, a quick explanation of what the lineup actually was. The majority opinion was written by Roberts and was joined by Sotomayor, Kagan, Barrett, and Jackson. This asserted Trump's executive order (which declared that going forward, children of illegal immigrants or temporary residents would not gain birth citizenship) was unconstitutional. This means, functionally, one would need a constitutional amendment to accomplish the executive order's goals. Kavanaugh wrote a concurring opinion where he indicated his sympathies were with the dissents on the constitutional question, but said that Trump's executive order was unlawful on statutory grounds. This means that one would need to pass a law to accomplish the executive order's goals.
The primary dissent is by Thomas, joined by Gorsuch. This argues that children of temporary residents do not qualify under the Citizenship Clause, but leaves open the question about whether children of illegal aliens do. Alito's separate opinion is more confusing on what it is actually deciding, but seems to think the standard is primarily that if someone is, at their birth in the US, a citizen of another country, they do not qualify under the Citizenship Clause. Gorsuch's dissent is a brief one where, after joining Thomas's dissent, he expresses more explicit doubts that illegal immigrants do not qualify under the Citizenship Clause.
With that, here are my quick thoughts.
As you probably could guess if you read any of my previous writings on the subject, I think the majority opinion got it right. That said, I do wish it had gone into more detail on some things, and addressed some more claims of the dissents. The majority opinion captures all of the most important things, but I still think it could have been done a bit better. For example, I wish it had spent more time addressing the arguments the dissents make about the Civil Rights Act of 1866. It still does, and does so reasonably satisfactorily... but I would have liked to have seen a bit more, particularly if it had incorporated some of the points Michael Ramsey brings up in his Originalism and Birthright Citizenship article, most specifically the following from pages 453-454:
Third, even if one accepts a need to align the Act and the Amendment, it is not clear that it should be done by reading the Amendment narrowly. To the contrary, it appears that the Act’s drafters understood it, like the Amendment, to include U.S.-born children of aliens. Senator Trumbull introduced what became the Act’s Citizenship Clause (with the “not subject to any foreign power” language), leading to the following exchange:
Mr. COWAN. I will ask whether [Trumbull’s proposal] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?
Mr. TRUMBULL. Undoubtedly.
Cowan then argued at length (in expressly racist terms) against adopting Trumbull’s proposed language. Trumbull repeated his understanding later in the debate:
I have already said that in my opinion birth entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a citizen of the United States, and that the bill now under consideration is but declaratory of what the law now is; but, inasmuch as some persons deny this, I thought it advisable to declare it in terms in the statute itself.
No one was recorded disputing the effect of Trumbull’s proposal; the question the Senators debated was whether it was a good idea.
Thus it appears that when Senators said that the Amendment had the same effect as the Act, they took a broad view of the Act (rather than a narrow view of the Amendment).
There are some other points of the dissent I wish had been addressed more directly, but I will save those for if I get my more in-depth post out. The main opinion, while not perfect, is satisfactory. It makes its case well and addresses the main points of the dissent.
Now we move onto Kavanaugh's concurrence. This is an odd one. Kavanaugh says he finds the arguments of the dissents on the Constitution more persuasive, but says he believes the current federal law, despite using the same language as the Citizenship Clause, should be interpreted differently because whatever the framers of the Citizenship Clause thought about it, those who passed the federal law were definitely looking at decisions like Wong Kim Ark and believed that was the meaning of the law they passed. This is not an unreasonable point, but his opinion unfortunately does not go into much detail on this subject. Perhaps this is why no other opinion in this case interfaces with his argument to any real extent. What is also confusing about his concurring opinion is what he actually thinks the Constitution does require. He apparently finds the dissents persuasive enough to not join the majority, but which dissent is the one he finds persuasive? Is his opinion that of Thomas, that of Alito, or some combination of the two? Neither? The brevity of his opinion leaves it unclear.
Jackson wrote a concurrence, but I don't have too much to say on it for now. It exists.
We now move onto the primary dissent, that of Thomas. It's a lengthy one, and is nearly as long as every other opinion put together. I believe this was the first opinion of the case I read. This article about how to read court opinions has a lot of useful information, but unfortunately it's so lengthy that it is about as long as some court opinions. But one key takeaway from it I think is good is this: If you want to try to decide who is right, start by figuring out which position (majority opinion or dissent) you think is more likely to be wrong, then start reading that opinion. This works as a time saver; if you read it and are unpersuaded, then you don't need to read anything more. If you read an argument saying "A is correct" and are not persuaded, you don't need to spend extra time reading an argument saying "A is incorrect." You only need to read more if you think the argument is persuasive, and then you should check out the other side.
Thomas's dissent is sure to convince some people, but I think a big problem with it is that it will make various arguments that look strong initially, but when you look more deeply into them they crumble. There were various points where I read something in it and thought "hrm, that actually seems a strong point" but then looked more into it and realized there was a real problem with the argument. This is why I wish the majority opinion had gone into more detail on some of those things. Of course, that could have enlarged it greatly.
For an example of what I am talking about, consider this part of the dissent:
Even the most expansive executive interpretation of the Citizenship Clause ultimately denied citizenship to a child born here but domiciled abroad. When Francois Heinrich, born of parents who ultimately returned to their native Austria, claimed to be an American citizen, President Grant’s Executive Branch did say that he was “‘originally clothed with American nationality.’” Ante, at 13 (majority opinion). But, it then promptly denied Heinrich’s claim to American citizenship. Heinxrich was instead—despite being born in the United States—a citizen of Austria, where he was domiciled: “Francois A. Heinrich should be held by the United States to be an Austrian subject, and treated as such; . . . he is not an American citizen.” Letter from Sec. of State H. Fish to Baron Lederer (Dec. 24, 1872), in 2 Wharton Digest 395–396.
What Thomas does not mention is that if you look at the letter, the reason he was no long regarded as an American citizen was that, due to an agreement between the United States and Austria, if a citizen of one becomes a citizen of another, then lives in that country for five years, the other country will no longer consider them a citizen. Fish noted that Francois was essentially a dual citizen (gaining American citizenship from his birth in the US and Austrian citizenship due to his parents being Austrian citizens), and that his family moved back to Austria only a few years after his birth. Fish pointed to actions of Francois that Fish thought showed that Francois had embraced his Austrian citizenship, and that that combined with the aforementioned agreement between the two countries met the requirement for him to lose his American citizenship.
Thus despite Francois being considered Austrian and not American in the end, the reasoning for this does not benefit Thomas. By Thomas's logic (as I understand it), he was never an American citizen due to his parents being in the US temporarily, but that is not the case. If he was an American, even if he later lost it due to a law, it's a point against Thomas's position.
If you are wondering why such laws against dual citizenship are no longer in place, they were ruled unconstitutional in court cases in the mid 20th century like Schneider v. Rusk and Afroyim v. Rusk which said that someone can only lose their US citizenship by deliberately revoking it. Whether those cases were right or wrong, the point is that Thomas's explanation does not change the fact this does not work with his interpretation. And this sort of thing occurs repeatedly; an argument is made that looks powerful, but upon closer inspection falls quickly.
We now turn to Alito's dissent. Of the two, it is definitely the weaker one. Alito spends about a quarter of the dissent not actually talking about legal questions, but complaining about US immigration policy. I feel like it's harder to criticize than Thomas's simply because it's so less coherent there isn't as much to criticize. A number of the arguments are shared, but Alito's basic conclusion is that under the Citizenship Clause, someone becomes a citizen if at their birth they do not become a citizen of another country, but I do not think he satisfactorily explains why this does not exclude children who have even one parent who is a foreign citizen, for many (most?) countries grant citizenship to children born abroad if one of their parents is a citizen of that country. Unlike Thomas, Alito also seems to cast doubt on Wong Kim Ark itself.
Lastly is Gorsuch's dissent, which does little more than take one additional step past Thomas's dissent. Thomas said he was leaving it undetermined whether children of long-term illegal residents of the United States qualified under the Citizenship Clause. Gorsuch expresses outright skepticism they do not, although he does not definitively say they do.
That brings us to a good transition on something: Notably, none of these opinions say that children of illegal immigrants are categorically excluded. Thomas devotes his dissent almost entirely to the question of transient visitors, and explicitly says he is leaving the issue of illegal immigrants undecided, with Gorsuch taking an even more more skeptical view on them being excluded. Alito's suggestion would leave most of them not to qualify, but still some would. And Kavanaugh says, at least on statutory grounds, that they are included.
While I am glad the Supreme Court gave the ruling they did, I am not so happy about the lineup. Instead of a 5-1-3 decision, there should have been more in the majority. This is both because I think the majority is right, but also because it emboldens rhetoric against it... as we can easily see. I have seen so many people dismiss it, saying it was only joined by the liberals and the conservatives they view as wafflers. Had it been more lopsided--even a simple 6-3 rather than 5-1-3-- such rhetoric would have faded. And on the other side, we can see liberals citing this near-loss as proof of how bad the Supreme Court is, if they were to come so close to getting this wrong when it should have been 9-0.
Part of the problem, I think, is many people have not familiarized themselves with the arguments in the issue. This is frustratingly common when it comes to Supreme Court cases, where people express strong opinions but can't actually explain much of anything of what the case is actually about. Some, in fact, just look at the lineup and judge it based on that. To some extent, that is understandable; most people can't sit down and read every single opinion to have an opinion on it, and one probably can find certain justices that they are more likely to be in agreement with and try to get a feel for it just by who ruled what way. Indeed, if I were asked "if without knowing anything else about a case you knew Sotomayor, Kagan, and Jackson were on one side of a decision, while Gorsuch, Thomas, and Alito were on the other side, who do you think would be more likely to be right?" I'd certainly say it would be more likely to be the side Gorsuch, Thomas, and Alito were on. But that's certainly not always the case, and here is one where I think they were very wrong.
I am especially irritated by the hate one sees towards Barrett. In this term alone, conservatives got plenty of wins from her... but because of this (and the voting deadline case) they just ignore all of them. I saw one person make the baffling complaint that she was really bad on the issue of immigration, as if she hadn't just ruled for the Trump administration's immigration policies in two cases several days prior (Mullin v. Doe and Mullin v. Al Lado). This creates the puzzling rhetoric that liberals blast her for ruling against immigrants while she has an adopted Haitian child, but then conservatives are blasting her for for bias towards immigrants on account of that child. Perhaps she simply is approaching these cases neutrally as a matter of law, hence the different outcomes?
It is possible this temporary hatred towards her will fade. One remembers the backlash against Neil Gorsuch after the Bostock decision, and you barely hear about that now. And it seems it is more the rowdy online conservatives who are making noise; more sober ones like Jonathan Turley, who is certainly a conservative and who is no fan of birthright citizenship, note:
The attacks on Barrett ignored that there are good-faith arguments on both sides of the birthright citizenship case. They also ignore that she regularly voted with the conservatives and for positions of the Administration. For example, she voted to support states in requiring transgender athletes to compete with their biological sex. She previously was the most vocal justice in rejecting transgender status as a protected class akin to race or religion.
Or, indeed, this entire article from National Review. For me, this decision has essentially cemented Barrett as my favorite justice on the Court. She is the only justice on the Court who got both Dobbs v. Jackson (the decision overturning Roe v. Wade) and this one right. In fairness, Jackson was not on the court in Dobbs v. Jackson (ironic considering the name), but she probably would not have joined the majority opinion.
So I am satisfied with the decision, but it could have been better, both in its writing (some points could have been expressed better) and in the lineup (the dissenters are wrong in the merits, but even more problematically this error has harmed discourse on the subject).
And so that's the end of this post. Maybe these thoughts were not so "quick" after all. Again, I hope to get up a longer post that goes into it in more detail, but knowing my speed, that could be a bit of a wait, if it ever happens. But for now, those are my thoughts on it, which are sure to lost within all of those others who have posted their thoughts on the issue.
No comments:
Post a Comment