Trump Administration and Congress Must Succeed Where Supreme Court Failed

The Supreme Court ruled 5-4, with Chief Justice John Roberts writing for the majority, that the Constitution grants automatic birthright citizenship to almost everyone born in the United States. Justice Kavanaugh concurred with the majority’s decision, but not the reasoning; thus, we have a 5-4 majority and a 6-3 majority depending on the question at issue. Bright spots and silver linings are difficult to detect, but Kavanaugh does hold out hope for a legislative solution. Meanwhile, based on legal experts, you would have assumed this to be a 9-0 decision against the President’s argument. Now we know that birthright citizenship is vulnerable and legally precarious. 5-4 majorities are fragile, and this one especially so with the vacillating Roberts writing for three leftist justices along with Justice Barrett. What, at first, seemed like a legal Hail Mary was barely stopped at the one-yard line.  

Bitter Birthright Pill to Swallow

Still, this is just the latest example of Chief Justice Roberts playing Lucy with the football, and it is hard to overstate the disappointment. It was Roberts who drafted the opinion blocking President Trump from altering the Census to ask responders about their citizenship status, and it was also Roberts who wrote the opinion blocking the termination of the DACA program because DHS didn’t sufficiently consider alternatives and impacts on the aliens to the Chief Justice’s liking. Of course, it is all the more bitter to realize this same Supreme Court largely sat on its hands while the Biden Administration ignored its duty to enforce immigration law and secure the border. So the Supreme Court watched passively as Biden waved in millions of people in defiance of the law and then snapped furiously into action to stop Trump from cleaning up their mess. 

Now, the Trump Administration must shift strategies to counter the dire reality of millions of illegal aliens present in the country, and all of them empowered to create citizens and then follow the logic of chain migration. They deserve credit for pushing this to the near finish line, but now that avenue is closed. In fact, the Trump Administration’s aggressive efforts across the board yielded positive results at the Supreme Court on issues beyond birthright citizenship, pointing the way forward.

All is NOT Lost

To be perfectly fair to the Supreme Court and John Roberts, this birthright citizenship case comes on the heels of some massive wins for the Trump Administration and national sovereignty. Namely, the Court struck down lower court decisions that held aliens standing in Mexico had “arrived” in the U.S. for purposes of forcing the government to process them and accept asylum claims. The Court also allowed the Trump Administration to terminate TPS designations on the reasonable grounds that Congress stripped courts of jurisdiction to hear legal challenges to TPS determinations. In another case, the Court ruled for the government in limiting the admission of legal permanent residents charged with crimes who leave the country. Taken together, these decisions reflect a common-sense interpretation of the laws enacted by Congress. 

Thus far, the Roberts Court has been a defender of Trump’s power and discretion to use the statutory authorities granted by Congress to restrict admissions and remove aliens. And the laws passed by Congress grant President Trump broad discretion to remove illegal aliens and restrict the admission of foreign nationals. Remember, the Roberts Court signed off on 1182(f) power to ban travel from countries. Also lost in the flood of legal news on immigration policy, the D.C. Circuit upheld the Trump Administration’s policy of expanding the use of expedited removal. While the Supreme Court has blocked Trump’s ability to deny citizenship to the progeny of illegal aliens inside the country, it has fully empowered his ability to deny entry and remove successful trespassers. 

The Trump Administration would be advised to establish a full moratorium on admissions under the authority granted by Congress in 1182(f) while all options are explored with Congress. During that moratorium, the government can terminate all discretionary temporary parole programs and terminate TPS across the board, in addition to ramping up removal operations robustly. Meanwhile, at minimum, Congress should use the authority granted to it in the 14th Amendment to define “subject to the jurisdiction” to exclude illegal aliens and temporary foreign visitors. Additionally, Congress needs to pass an updated version of H.R. 2 and close the loopholes Biden exploited to smuggle in millions. Congress must end asylum and parole abuse, close border loopholes for UACs and family units, end TPS abuse, and expand detention and removal authority for DHS. They should pass the PAUSE Act to freeze all legal immigration. There are no more judges to turn to and no more DHS bureaucrats ready to reply to your sternly worded letter. Congress, the nation turns its lonely eyes to you.

The message from the Court is clear that we are free to remove illegal aliens and restrict entry, but if we fail to enforce the law, then the Court has granted them the power to create citizens. So there is hope yet, and time is too short for despair. The Chief Justice giveth and the Chief taketh away. It is worth noting that while Roberts makes these nakedly political compromises in the hopes of protecting the reputation of the Court, he’s presided over a total collapse in trust of the courts by the public. It is petty, but still nice to know he’s letting himself down along with all his predecessors and fellow Americans. For the rest of us, we must use the tools before us to avert disaster. Even at this late hour, Congress still has time to act, if only they could summon the will. Arcane debates about parliamentary procedure are not going to save this nation or win over any voter. If there is not a majority in Congress willing to protect American citizenship and sovereignty, then a new majority is needed.