In typical fashion, the Ninth Circuit Court of Appeals completely misread the 14th Amendment’s Citizenship Clause and the congressional speech of its principal framers in a July 27 decision, State of Washington, et al. v. Donald Trump, et al. This ideologically motivated opinion was written by a three-judge panel, composed of two Clinton appointees and a Trump appointee who registered a “partial concurrence and a partial dissent.” Overall, however, it was an embarrassment to the canons of legal reasoning and historical truth. It surely will be overruled by the Supreme Court—hopefully on an expedited basis.
On January 20, 2025, President Trump acted expeditiously to fulfill a campaign promise by issuing an executive order redefining who is “subject to the jurisdiction of the United States.” I believe Trump is to be applauded for bringing the question of birthright citizenship to the attention of the public and provoking debate on this crucial issue. I have questions, however, as to whether an executive order in isolation is a constitutional means of pursuing the cause.
Congress clearly has power under Section 5 of the 14th Amendment “to enforce, by appropriate legislation, the provisions of this article.” One provision is that “no State shall make or enforce any law which abridges the privileges or immunities of citizens of the United States.” This has been controversial, because the language of the amendment is couched in negative terms.