By Lawrence Hurley
President Donald Trump’s plan to roll back constitutionally protected birthright citizenship is just one of several controversial actions that could face a pushback from the justices and could be overturned by the Supreme Court.
Other policies that could be legally vulnerable include an 18th-century plan to invoke an 18th-century law called the Alien Enemies Act to round up and deport certain immigrants, legal experts said. Efforts to reallocate congressional funding for border wall construction and to refuse to spend money appropriated by Congress for environmental policy are also likely to be challenged.
Civil rights groups and Democratic attorneys general will sue Trump over several of his policies. In fact, within minutes of Trump’s inauguration, lawsuits were filed against his proposed Department of Government Efficiency.
But not all claims are created equal, and many fail.
This is especially true if Trump is simply reversing positions taken by President Joe Biden and federal agencies are following the letter of the law in doing so.
Trump administration officials intend to cite new or previously untested theories that are more likely to lose, even with the Supreme Court, which has a 6-3 conservative majority with three Trump appointees.
“I expect the Trump administration to push back hard from the courts when they take illegal actions that are properly challenged in court,” said Jonathan Adler, a professor at Case Western Reserve University School of Law.
Citizenship by birthright
Legal scholars on the left and right have long recognized that birthright citizenship is required under the 14th Amendment to the Constitution.
“All persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States,” the amendment reads.
Enacted after the Civil War, the amendment was intended to ensure that former slaves and their children were recognized as citizens.
Over the years, the consensus on its meaning has not stopped some anti-immigration advocates from pushing for an alternative interpretation.
Trump accepted those arguments in the executive order, focusing on language in the amendment that says birthright citizenship is granted to those “subject to the jurisdiction” of the United States.
The language means that children born to parents who are not legally in the country can be stripped of their citizenship, the argument goes.
However, most legal experts say the language applies only to people not bound by US law, usually foreign diplomats.
The Supreme Court has never directly ruled on the issue, but in 1898, in United States v. Wong Kim Ark, the court ruled that a man born in San Francisco to parents who were both Chinese was a US citizen.
Connecticut Attorney General William Tong said Monday: “We will sue soon and I am sure we will win.” Last month, he told NBC News that he would be “the first to sue” if Trump goes ahead with his plan.
The American Civil Liberties Union filed its lawsuit Monday night.
Thomas Wolfe, a lawyer at New York University Law School’s Brennan Center for Justice, said the Trump administration is asking the Supreme Court to “go against the plain text of the 14th Amendment” and overturn more precedent on the books. more than a century.
Birthright citizenship isn’t the only immigration issue that will end up in court, as Trump has announced a series of executive orders on the issue. One of these is the “Remain in Mexico” policy implemented during his first term, which prevents asylum seekers from entering the country while their applications are being processed at the southern border.
The Supreme Court never ruled on the stay-in-Mexico program during Trump’s first presidency. He issued a ruling allowing Biden to vacate it in 2022.
Alien Enemies Act
Trump is on equally dubious legal ground with his executive order, which paved the way for the use of the Alien Enemies Act, enacted as part of the Alien and Sedition Acts of 1798.
The order directs officials to “make operational preparations” in case Trump decides to trigger a law that would allow the president to detain or deport citizens of other countries when the United States is at war. He played a role in the internment of Japanese Americans during World War II.
But as legal experts point out, it can only be used in times of war, which could limit its availability for Trump, who said Monday he wants to use it to detain members of drug cartels.
Ilya Somin, a professor at George Mason University’s Antonin Scalia School of Law, wrote Monday that the Alien Enemy Act “cannot be used in our current situation” because the nation is not at war. While some Republicans claim there is an “invasion” at the southern border, that won’t be enough to trigger the law, he said.
Somin added in an email that the Alien Enemy Act and birth-citizenship plans are “the two (Trump policies) that are most invalid.”
Use of federal funds
Issues related to federal funding are also likely to be litigated, with uncertain outcomes.
During his first term in office, Trump tried to divert military funding from Congress to help build a wall along the southern border. That was because Congress had not appropriated money for the wall, leading to a legal battle over the president’s authority to decide how the money was spent.
Under the Constitution’s Appropriations Clause, Congress has, as it is often called, the “power of the purse.”
Trump intends to revive and expand this struggle in two ways.
First, he appears ready to continue his fight to complete the border wall, which could lead to the same legal battles as before.
The Supreme Court never ruled on Trump’s first term on whether to allocate money for the wall. He had filed a case on the issue, but Biden controversially dismissed it after he took office in 2021.
Earlier in the trial, the court had allowed some of the money to be spent.
Another Trump proposal is to refuse to spend money earmarked by Congress for environmental programs approved as part of the Inflation Reduction Act and the Infrastructure Investment and Jobs Act. That would lead to another legal battle — this time over the Impoundment Control Act, a 1974 law that requires the executive branch to spend appropriated funds.