We Know Where the Supreme Court’s Change of Heart Has Come From

Opinion|We Know Exactly Where the Supreme Court’s Change of Heart Has Come From

The heart of Justice Ketanji Brown Jackson’s dissent in Trump v. CASA is that the Constitution does not permit the exercise of arbitrary power and is certainly not a document that gives to any single individual the authority to rewrite the law.

This may seem to be a strange dissent to issue in a case that deals narrowly with the legality of nationwide injunctions, the practice by which federal courts block the application of laws and executive orders for the entire nation as a way of issuing temporary relief pending further appeal. But this particular case regarding nationwide injunctions had to do with the Trump administration’s order overturning birthright citizenship, a right established in Section 1 of the 14th Amendment and reaffirmed in subsequent legislation and jurisprudence.

In 1898, the Supreme Court held that birthright citizenship applies to every person born in the United States. The only exceptions are those people who do not fall under the jurisdiction — which is to say, the laws — of the United States. In 1868, at the time the amendment was ratified, that meant foreign diplomats and members of Native tribes.

The children of everyone else are citizens if they are born on American soil. Driven by his nativist vision for the United States, President Trump sought to subvert this, with an executive order limiting birthright citizenship to only those with at least one parent who is a citizen or lawful permanent resident. The order, issued on the president’s first day back in office, was set to take effect on Feb. 19.

This was an outright attack on the Constitution. However much Donald Trump and Stephen Miller might want it to be otherwise, undocumented immigrants are subject to the jurisdiction of the United States — they can be arrested and tried in criminal courts, for instance — and thus their children, who are also subject to that jurisdiction, are American citizens if born on American soil.

The blatant illegality of the president’s executive order meant immediate legal backlash. Several states and parties filed lawsuits and a federal court quickly held that the executive order was plainly unconstitutional, freezing it nationwide.