Birthright Citizenship, Tariffs, Blah Blah Blah: Would One More Ridiculous Supreme Court Error Matter?
The Trump Administration should lose the birthright citizenship case that the Supreme Court heard last Wednesday. Full stop. Professor Dorf's analysis last Thursday of the oral argument in that case made it very clear why the government should lose, and he did so even while giving the other side every benefit of every doubt. Moreover, he is hardly alone in that conclusion. Again, this is not a close call.
This is very much like the Court's recent decision in the tariff case, on which both Professor Dorf and I weighed in a bit more than a month ago. The Trump side's argument was so ridiculous that the 6-3 decision against him was merely evidence that there are at least three Republican appointees on the Supreme Court who are willing to toss logic, law, and evidence aside to enable their political leader's worst instincts.
But what are the non-legalistic stakes in those cases? That is, what if two of the six votes had switched in the tariffs case, and what if somehow five votes materialize to rewrite the Fourteenth Amendment in the birthright citizenship case? When I refer non-legalistic stakes, I mean to ask about the impact on real people as a result of such terrible decisions, which is different from the impact on the Court's already quite tattered reputation. When I asked in the title of this column whether one more ridiculous error by the Court in the birthright citizenship case would matter, I am not saying that the Court's reputation could not go lower. It could, and that would be bad.
Setting aside the cumulative impact of this Court's self-immolation, however, I am interested in the damage -- both the type of damage and the quantitative weight of the damage -- that mistaken court decisions would cause. After discussing why neither the tariff case nor the birthright citizenship case would cause fundamental harm if wrongly decided, I will offer examples of the Court's decisions that truly are terrible in every sense.
So, tariffs. Trump was illegally using the relevant statute (IEEPA, or the International Emergency Economic Powers Act) to extort and punish countries, completely at his whim. I have long argued that tariffs can be used strategically and carefully for good policy reasons, which means that I never bought into the "tariffs are bad because ... free trade!" nonsense from orthodox economists. But of course Trump is incapable of doing anything strategically or carefully, making it an easy call to oppose his abuse of IEEPA.
We need to ask, however, what would happen if Congress had -- inadvertently or otherwise -- written IEEPA in a way that delegated power to Presidents to impose tariffs selectively and without limit. That would be bad, but in that world the Supreme Court would never have heard a challenge to Trump's tariff insanity. It would be bad policy, but it would be bad policy that was duly legislated and thus available for a president's (ab)use. We have a lot of bad policies that Congress has created: at-will employment, wholly inadequate environmental regulations, a disastrous health-care financing system, and on and on. This would join that list.
The point is that we can find ourselves with terrible policy outcomes that result from legally unproblematic processes. If we had a legal regime in which Trump could have continued to do what he was doing (until the Court stopped him in February), that would have created more economic uncertainty and thus reduced business activity, higher unemployment, and so on. That, however, is in the same category as wishing that we had a Congress that would, say, pass a living wage law, or one that would fund better public transportation.
I am therefore not necessarily saying that the damage would be quantitatively insignificant. That is beyond the scope of this column. I am saying that imagining a world with Trump's version of IEEPA and comparing it to one with the actual version of IEEPA is a matter of assessing two policy regimes that any given Congress might have chosen.
This is even more true when we turn our attention to birthright citizenship. I happen to think that birthright citizenship is a very good policy regime, for reasons that I will explicate momentarily. Even so, imagine that the framers of the Reconstruction Amendments had written the citizenship clause in a narrower way that clearly and exclusively dealt with the newly freed people who had been cruelly and unjustly enslaved? In other words, what if the US had adopted a citizenship regime that more closely resembled those in the European countries from which the American power elite (or their parents or grandparents) had moved?
As I stipulated above, I would view that as a bad policy choice. And to be clear, I do not mean to say that "mere" policy choices are somehow unimportant. I agree with Moira Donegan, a columnist for The Guardian, who wrote last week that "[e]nding birthright citizenship would change the meaning of America." In particular, she argued movingly that abandoning birthright citizenship
would change what it means to be an American, and in so doing it would change what America means. Ending birthright citizenship would effectively end the United States’ experiment in striving to be a creedal nation that delivers democracy to a vast and diverse population of equals. It would make us instead something more vulgar, more common, and less special: a nation defined by ethnicity and heredity, those banal accidents that carry no righteous vision or moral aspiration, but only meaningless inheritance; a nation defined not by the hopes for its people’s future but by the unchangeable facts of their past.
That is a very big deal. On the other hand, the US has done many things that have made the country "more vulgar, more common, and less special." That in no way means that we should simply make additional bad decisions merely because we have already blown it in so many other ways, but the point is that the country would go on, in a form that I would regret to see but that would simply be different from what it could be.
Similarly, Professor Jacob Hamburger's guest column here on Dorf on Law early last year pointed out how much pure waste would be caused by a non-birthright citizenship regime:
[I]mplementing Trump’s order will impose an unnecessary amount of additional paperwork—ironic for an administration that claims to believe in “governmental efficiency.” A further irony is that naturalized citizens and permanent residents, who receive documentation through the immigration process, would likely have a much easier time proving their status than many native-born U.S. citizens who may only have a birth certificate.
That would also be bad. If the Court gets this case wrong, then, it will not only allow Trump to "change the meaning of America" for the worse but to do so by creating wholly unnecessary chaos in people's lives. We should hope that the betting odds are correct that the good guys will win that case.
But if I am not saying that these bad outcomes are quantitatively somehow not too bad, what am I saying? The idea here is that some outcomes are transformative of the country in a way that goes beyond allowing or disallowing certain policy choices. The truly bad outcomes are plenty bad in a policy sense, but they are super-bad in a way that makes the country less of a democracy and less able to resist authoritarian takeover.
When the Supreme Court cut the heart out of the Voting Rights Act of 1965 with 2013's Shelby County v. Holder, that was not only an arrogant assertion of power and a judicial negation of a nearly unanimous act of Congress. It set in motion the devolution of the country's political system, making it possible once again for Republican-run states to bring back Jim Crow-style laws that have made the country less of a democracy. In Rucho v. Common Cause, the Court's conservatives blithely said that there was nothing they could do about gerrymandering, saying (as I have put it many times) that the courts should defer to the political branches even when the issue is fundamentally whether the political branches deserve the deference that presumptively comes with being the representatives of the people.
An inexplicably unanimous Supreme Court in 2024 decided to write the Insurrection Clause out of the Fourteenth Amendment, and that court later in the year issued a non-unanimous opinion giving presidents immunity from some (perhaps all, although the Court's majority was coy about that question) criminal prosecutions, even after leaving office.
The latter decision was ridiculous as a matter of jurisprudence, but its vile real-world impact was entirely a matter of letting Trump buy time and thus escape prosecution before that year's election. The immunity question itself, however, was rather unimportant in the sense that it would have little or no impact on the world. In our nightmares, we worried that Trump might use that as an excuse literally to shoot someone on Fifth Avenue, but the bigger worry is that he will never leave office and thus might never even need to rely on the immunity decision (given that everyone seems to accept that sitting presidents cannot be prosecuted).
The former decision (regarding the insurrection clause), on the other hand, was absolutely devastating to the Constitution, the country, and the world. The Court could and should have said that, although it is possible to imagine difficult line-drawing questions about what constitutes insurrection, there is no reason to require Congress to have passed a law defining it in advance of January 6, 2021. As a direct result of that complete abdication of responsibility by nine presumably sentient adults, we are at this moment waiting to find out whether Trump will indeed decide that "[a] whole civilization will die tonight, never to be brought back again."
So would it be bad if the Court's conservatives (sometimes joined by its liberals) continue to make indefensible decisions? Of course it would. Every bad decision should be condemned. But some things are existential, and some are not. Birthright citizenship is a good idea, but the country and the world could survive without it. That is not true of the decisions that brought us to the brink of disaster.
- Neil H. Buchanan