Let’s talk about the “un”-EO first. Federal District Court judge, John C. Coughenour, temporarily blocked President Trump’s executive order to end automatic citizenship for babies born on American soil, the so called “anchor baby” phenomenon. Three days after Trump issued his executive order, the judge sided with the first four states that sued, saying, “This is a blatantly unconstitutional order.” 22 states, along with activist groups and expectant mothers, have now filed lawsuits to halt order on the grounds that it violates the 14th Amendment. Courts have always interpreted the amendment’s section stating that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States” as applying to (almost) every baby born in the United States.
“Frankly,” Judge Coughenour added, “I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order. It just boggles my mind.” Well, lawyers don’t usually state propositions, even Hail Mary theories like this one equivocally. I think Trump’s lawyers told him that the order would almost certainly be found unconstitutional, and maybe they told him that it is unconstitutional. I am pretty certain it is, and that nothing short of a Constitutional amendment can change the law.
I read a really silly post on “X” from someone who said that “everybody knows” that the Founders never intended birthright citizenship. In the Founders’ generation, every baby had birthright citizenship, and there were no restrictions on immigration. This Trump Executive Order was pure grandstanding, sending a message to the President’s most fervent supporters that “at least he tried,” allowing him to blame the courts. It is unethical for a President to promote a policy he knows, or should know, can never stand just to score political points. It wastes a court’s time and misleads the public. Biden did this too. Yecchh.
The super-duper-constitutional Executive Order, in contrast, aims at ending the federal government’s intimidation and attempts to force social media platforms to censor speech. The “Restoring Freedom of Speech and Ending Federal Censorship” executive order prohibits government agents from engaging in unconstitutional censorship by proxy, which the Supreme Court found did not literally violate the First Amendment. “Under the guise of combatting ‘misinformation,’ ‘disinformation,’ and ‘malinformation,’ the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government’s preferred narrative about significant matters of public debate,” states the order. “Government censorship of speech is intolerable in a free society.”
Bingo! I couldn’t have said it better myself. Boy, this Trump guy is the worst Nazi ever! Doesn’t he know that controlling what the public can say, read, see and hear is critical to ending democracy? The so-called “Twitter Files” demonstrated the frightening degree to which various federal agencies, including the Department of Homeland Security, the Centers for Disease Control and Prevention (CDC) and the White House, pressured social media companies to do their dirty work—that is, censorship—for them. Naturally, CNN ran to Nina Jankowicz, the infamous former DHS disinformation adviser, to explain why the government “persuading”platforms to remove inconvenient ideas, claims and opinion (“Nice little business you got here—be a shame if anything were to happen to it…”) is a good thing. “Disinformation is not a partisan issue; it’s a democracy issue,” Jankowicz said in a statement. “America’s adversaries benefit when our country is internally divided and politically polarized.” Fall into line, Comrade! In unity there is strength! Dissent is weakness! These are the people who were manipulating Joe Biden the past four years. And they called their critics fascists.
Reason opines, “The next step is for Congress to codify this order into law.” That is absolutely correct, and no time should be lost. It will also be fun to make a list of the Democrats who vote against such a bill.
Ethics Alarms 
Perhaps the EO on Birthright Citizenship, which in the modern age seems to be a wide open door to the abuse of residency and citizenship, was also signed to move the Overton Window prior to a future constitution change.
Except that no even slightly controversial Amendment has a prayer of being ratified—and a Constitutional Convention is too horrible to contemplate.
I asked this question a bit ago. Jack referred me to a Reason article which helped somewhat.
Trump is arguing the phrase subject to the jurisdiction there of means legally authorized persons.
CFR defines what that entire phrase means and then refers to another section 515.330 as 2a which further defines who is subject to US jurisdiction. It seems to me that if Congress rewords 515.330 2 a to mean persons lawfully within the US the EO could pass Constitutional muster. Further, because illegal immigrants impact the federal budget such a verbiage change could occur in a reconciliation bill and not need cloture.
When the SCOTUS ruled on birthright citizenship in 1898 in the Wong case the parents were lawfully in the US when he was born. There was a difference of opinion then as now. It is possible the court may reexamine the issue. Trump is merely forcing the court to hear relevant arguments and rule on the issue instead of just letting people come to the US to have babies.
I don’t find revisiting issues in which a troublesome phrase creates differences of interpretation when if Congress meant anyone born here is automatically a citizen they could have simply omitted that phrase unethical.
Even if Trump loses nothing stops parents from being deported and the children of said parents must go with them. The 14th amendment does not guarantee residency nor does it give non citizen parents of children deemed citizens a right to remain in the US If the children choose to come back to the US when they reach age of majority so be it.
The Supremes have done a lousy job maintaining credibility in the legal community, and while it is true that the Wong case could be distinguishable, the Court has been dinging stare decisus a lot lately after killing Roe and Chevron. I think declaring a Constitutional interpretation null and void after 125 years would cause dangerous chaos, and at least Roberts and one of the other conservatives would probably join the liberal bloc to avoid that. You may be right that it isn’t so much of a stretch that the EO wasn’t serious. I haven’t talked to a lawyer yet who thinks it will fly.
Jack,
You are probably correct especially considering the CFR currently defines that phrase meaning everyone born here.
Nonetheless, the simple solution to “anchor babies” and chain migration is if parents get deported the kids go too irrespective of citizenship. No family separation is what is at issue correct? I do not know of any Constitutional right to obviate laws by virtue of citizenship, nor do children have rights of choice with respect to domicile.
As I understand it, the Wong parents were legally here in the country but the law then did not allow them to apply for citizenship.
The legal gymnastics I hear from people supporting this executive order is the language in the Amendment “subject to the jurisdiction thereof”. The argument is that people here illegally are not subject to the jurisdiction of the United States.
I’m not a lawyer, but that seems ridiculous to me. That would imply that they are not subject to our laws such as against murder, rape, burglary, etc. Clearly they are — we prosecute too many of them for those things.
My understanding is that the generally accepted meaning of that clause is for people who have diplomatic immunity. Foreign diplomats are not, in fact, subject to the laws of the United States — so their kids don’t get to be citizens. But even there, if the British ambassador kills the mayor of D.C., even though we might not be able to prosecute him, we can still expel him.