In Trump v. Barbara, the Supreme Court deemed birthright citizenship a constitutional right for the children of illegal aliens and birth tourists. It did so based on a dubious reading of the law, a blindness to its spirit, and a stubborn dismissal of relevant history, policy, and practices. That jurisprudence, I argued in part I, could spell coming doom for the Trump Administration in parallel cases likely to arise in response to its effort to exclude illegal aliens from the census apportionment base. This is a critical initiative given that those figures are used to allocate congressional seats and Electoral College votes across the states, redistrict, and dole out trillions of dollars in federal funds.
However, there is one powerful argument the Court did not countenance in Barbara or elsewhere that could lead it to render a more favorable judgment if and when the census-citizenship issue comes before it.
