A former U.S. Attorney tore into President Donald Trump’s attempt to work around a Supreme Court defeat against his birthright citizenship plans.
During an episode of Talking Feds, Harry Litman described a pair of executive orders signed by Trump earlier this week as “laughable” and said he expects them to swiftly fail because they’re built on “cockamamie” arguments. The Supreme Court ruled against Trump’s attempt to end birthright citizenship in the case Trump v. Barbara last month.
Both executive orders that Trump issued in response “emerge from a place that is laughable, really, in terms of whether the law supports it,” Litman said. The first order is “unconstitutional as can be,” and the second is “very suspect,” Litman said.
The core problem is that both rest on a reading of the 14th Amendment that only Justice Clarence Thomas embraced, Litman said. The majority of the Supreme Court explicitly rejected the reading, however, with Chief Justice John Roberts writing in his opinion that “subject to the jurisdiction thereof” means simply being subject to U.S. law, a blow to the reading Trump is using for his orders.
The first order rests on what Litman called a “cockamamie argument” that children of people who entered unlawfully aren’t “subject to the jurisdiction” of the United States. It tries to carve out new categories, like alien enemies, members of designated foreign terrorist organizations and people who enter specifically to give birth. Litman called the test straightforward.
“Are alien enemies subject to the laws? Of course they are,” Litman said. “Are terrorists subject to the laws? Of course they are.”
Litman bluntly added that the 14th Amendment gives “zero power for the president to decide who is a citizen.”
The second order, aimed at “birth tourism,” could survive if narrowly applied to border screening, Litman said, but not if it’s used to strip citizenship from anyone already born on U.S. soil. He concluded that one order “is going down as soon as they use it, and the second will depend on how they use it.”
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