A Thought on the Birthright Citizenship Case

Are Article III Restrictions on Federal Courts Harming Public Trust in our Legal System and Major Institutions?

Last Thursday, the United States Supreme Court heard oral arguments in cases over whether a lower court could issue a nationwide injunction against Donald Trump’s executive orders to ignore birthright citizenship.

The Trump Administration’s theories on birthright citizenship would require the Court to not only reverse over a century of precedent but also literally ignore and contradict the plain text of the United States Constitution.¹

The Fourteenth Amendment provides:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.²

It’s a pretty straightforward provision.³

Moreover, as Justice Sonia Sotomayor pointed out at oral argument, the United States Supreme Court has already evaluated this provision multiple times in the past and made clear that birthright citizenship cannot be abrogated. The Court has held that a person born in the United States is not deprived of their birthright citizenship simply because their parents:

• Have fealty to a foreign nation.⁴

• Illegally obtained their citizenship or entrance to the United States.⁵

• Were stopped at the border but gave birth to their children within the boundaries of the United States.⁶

• Are undocumented immigrants who illegally entered the United States.⁷

• Removed their child from the United States to return to their home country.⁸

The Court has also been clear that Congress cannot simply take away birthright citizenship without that citizen voluntarily giving it up.⁹

At oral arguments, none of the Justices seemed interested in the Trump Administration’s offer to judicially rewrite the United States Constitution to make it say what Trump wanted. That’s because the issue wasn’t even technically before the Court.

So what was this legal fight actually about?

As University of Michigan Law Professor and legal scholar

Nicholas Bagley

explained in The Birthright-Citizenship Case Isn't Really About Birthright Citizenship:

The central dispute yesterday morning was not about the birthright-citizenship order itself. Instead, it was about the relief that plaintiffs ought to get assuming that the order is unconstitutional. It’s a procedural question.

It may seem rather confusing. As Bagley added:

At times, that lent the proceedings a weirdly artificial air. President Trump is moving to deny citizenship to countless newborns and we’re fighting about whether courts can say no?

Well, yes. And for good reason. The argument yesterday was about the power of lone federal-court judges to enter what are called “universal” or “nationwide” injunctions. These injunctions prevent the government from enforcing a policy not just on the plaintiffs who filed a given suit, but on anyone and everyone in the United States. As recently as the administration of President George W. Bush, such universal injunctions were very rare. Today, they are a more or less standard judicial response to perceived presidential overreach.

Basically, what the Trump Administration is arguing is that even though Trump’s order is unconstitutional, Article III of the United States Constitution prevents a court from actually enforcing this constitutional provision. In effect, Trump can break the law and use invented legal technicalities to get out of having to comply with it.

It’s a strategy that is rather ironic for a couple reasons.

1. During the Biden Administration, Trump appointed federal district court judges issued hundreds of injunctions against Biden Administration policies and laws enacted by the Democrats.

2. Adherence to such a principle would make the American legal system more like the Mexican legal system in its adjudication of constitutional rights, where laws are only unconstitutional as applied to the litigant. It’s rather ironic that the person who has proclaimed his contempt for Mexicans would want to make the United States (in the name of making it “great again”) more like Mexico.

Will Trump’s strategy work?

It’s unclear but it does seem to raise a larger problem in American law, particularly in our federal court system.

What would it say to the public if the Trump Administration wins?

Basically, the administration can do illegal things but there’s no way to challenge those illegal acts. Sure, the United States Constitution says that there’s birthright citizenship. But like a stop sign in Italy, it’s suggestion only.

Now, there are very good reasons for limiting the availability of nationwide injunctions. As

Nicholas Bagley

argues, “universal injunctions can’t be squared with the traditional judicial role of the courts, which is to resolve disputes between parties, not to protect theoretical parties who aren’t in court at all.”

Without giving a complete explanation of the constitutional procedural rules - there are entire courses in law school taught on the subject - a reader should know that there are many times when the courts cannot hear a case because of Article III of the United States Constitution which limits federal courts to hearing only actual cases and controversies.¹⁰

There are good reasons for these rules. The federal courts cannot be turned into a Frank Costanza style airing of the grievances.¹¹ The Constitution prohibits that as a matter of the separation of powers under Article III.¹²

In federal court, one cannot simply bring a case, instead, one must have what is known as “standing”.¹³

What does one need to have standing to bring a federal case?

1. Actual Injury. That is where one has an actual injury from the conduct of the government that is more than simply speculative or conjectural.¹⁴ It is not enough to simply bring a case against the government for violating the law; one must show that they are directly harmed by the government’s action.¹⁵

2. Causation. The defendant being sued must be the one who has caused this actual injury, not some other third party.¹⁶

3. Redressability. The court must be able to legally address the injury in question.¹⁷

The argument against allowing a lower court issuing a nationwide injunction against Trump’s executive order on birthright citizenship stems from this key limitation.

However, if the Court rules against the issuance of nationwide injunctions, I don’t think the public will see a solid application of Article III principals. Instead, the public is likely to view the Court as saying that we live in a society of governmental lawlessness, where courts cannot reign in what are clearly illegal acts.

While designed to preserve our system of democratic governance, the restraints on our federal courts to hear disputes may have the effect of reducing trust in the system.

There are a number of times when the failure to hear the merits of important cases has the effect of leaving major issues unresolved. Instead of people feeling like their side got their day in court - win or lose - they are left feeling deprived of resolution from the system.

Take the conspiracy theory of birtherism - the belief that Barack Obama was secretly born outside the United States in Kenya and thus was ineligible to be the President - as a prime example.

This conspiracy theory was pretty illogical on its face. Yet, as time wore on and cases were filed in court challenging President Obama’s eligibility, belief in this theory only grew among the public.

No court could ever hear the case for a variety of Article III grounds. But significant segments of the general public didn’t understand that. Instead, they saw federal courts punting on an issue - if indeed President Obama had been born in Kenya, the courts could do nothing about his ineligibility for the office. This only fueled the conspiracy theory and made ever increasing numbers of Americans believe it was true.

The conspiracy theory, which was partially funded and driven by Donald Trump, only ceased when President Obama released his birth certificate to the public on his own volition.

It’s not hard to see how the federal courts’ rigid interpretation of Article III can lead to distrust among the general public.

Consider the following. The government or an elected official does something that many Americans believe the law or Constitution says that they can’t do.

When citizens go to court to resolve the matter, they are told that the case can’t be decided. The outcome doesn’t say that the government’s or elected official’s action is indeed legal or constitutional. The outcome just says that it cannot be stopped by the courts and there’s no real resolution.

To the average citizen, what perception is created?

1. The laws don’t mean anything.

2. People in power can always get away with what they want because the courts will just make things up to let them get away with it.

3. There’s no legal recourse in our judicial system against harm by others.

4. Our democratic system is broken.

Some might argue that there are always citizens with sour grapes over any court loss. People can get very angry when courts issue decisions they disagree with (myself included).

Here though is the wrinkle. When a court rules on the merits of a case but against a rational citizen’s preferred position, that rational citizen at least knows that the case got heard in court and while the courts may be wrong, the law simply needs to be changed. Whatever the natural disappointment, the rational citizen knows there is a legislative and political process to fix things.

None of this occurs when a court fails to rule on the merits of cases.

Let’s look at a few examples of standing depriving a court of jurisdiction to hear the merits of a case that only increase public distrust in the courts:

• The Bush Administration engages in what appears to be blatant First Amendment violations but the Supreme Court allows it to continue unabated because they say no one can challenge it.¹⁸

• A man sues the LAPD for using a dangerous chokehold against him but the Supreme Court tells him he can’t bring his suit to bar the chokehold because he can’t prove that he’ll personally be choked by another renegade LAPD officer in the future.¹⁹

• Proponents spend tens of millions to pass Proposition 8, have it challenged as unconstitutional, have it struck down, and then are told by the Supreme Court that they can’t defend the law in court.²⁰ Thus, the law they worked so hard to pass is dead but not because the Court determined it was actually unconstitutional.
  
  Side Note: It was unconstitutional and a horrible proposition that greatly harmed the LGBT community. However, one has to consider the feelings of supporters and their belief in our legal system to fairly and properly administer justice when engaging in the democratic system. When that belief has been diminished, that ultimately destabilizes the country.

We often wonder why trust and confidence in our nation’s institutions seems to be eroding and is at all time lows. There’s no one single answer.

But perhaps we should look at our legal system and see the gaps where citizens feel like their courts cannot give them redress and cannot hold the other branches of government in line.

Since 2016, California has served as the beacon of resistance against Trumpism.²¹ But what sets California apart from other states, including those that are just as diverse but where Trumpism has been incredibly popular?

There are many unique differences to California’s legal system. Let’s take a look at one.

Unlike federal law, California law allows for both citizen suits and taxpayer suits to be brought by those who wish to challenge unconstitutional actions by the government without the traditional constraints of standing doctrine.²² This allows for government and elected officials to be better policed by the public and it enables resolution of disputes with disappointed litigants turning to the political process.

Is it the sole reason that California has successfully resisted Trumpism?

No. But it certainly plays a role. Because even if courts rule in ways that people dislike, there is far greater resolution of disputes. People are heard and people know that they can use the political process for change. As a result, there’s continued trust in the legal system and the political process.

While I hope the Supreme Court affirms the nationwide injunctions in these birthright citizenship cases, however the Court rules, the restrictive nature of our federal courts is worth an evaluation. Because while our courts cannot become grievance-fests, the courts should surely be able to find more ways to resolve disputes and enforce our nation’s laws.

Doing otherwise will only further erode trust and confidence in our judicial and democratic systems.

1. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.