On the Monday after the U.S. Supreme Court released its decision in Trump v. CASA, Inc., Seattle University School of Law hosted its Third Annual Supreme Court Rapid Response webinar with celebrated experts in law and history from around the nation.
In the case, the Trump administration challenged injunctions filed by federal district judges against the birthright citizenship executive order, issued by the president in January, which would remove the 14th Amendment’s guarantee of citizenship based on being born in the U.S.
“The 14th Amendment guarantees citizenship to all persons born or naturalized in the United States … The Trump administration has challenged that with a bold executive order that claims the authority to redefine birthright citizenship and claims the authority in favor of a narrower understanding of birthright citizenship that is counter to what was, up until moments ago, pretty much a cross-ideological consensus,” said Seattle U Law Professor Andrew Siegel, who organized and led the webinar for a third consecutive year, in his introduction.
The Supreme Court did not directly decide on whether or not birthright citizenship would stay in place, but it did vote 6-3 along ideological lines to limit the power of federal courts to rule against executive actions such as this one.
More than 200 participants from across the U.S. attended the webinar, which examined both the decision to curb injunctions from federal judges and the illegality of potentially ending birthright citizenship.
The first panel, moderated by Seattle U Law Professor Erin Carr, was titled, “What Trump v. CASA Holds and What It Means for Future Litigation Challenging Potentially Illegal Government Conduct.” Speakers discussed the future of federal judges’ ability to check the powers of the executive branch.
The first round of panelists included: Boston University School of Law Professor Portia Pedro; Emory University School of Law Professor and John Lewis Chair for Civil Rights and Social Justice Darren Hutchinson; Louisiana State University Paul M. Herbert Law Center Professor and Associate Dean for Faculty Development and Research Caprice Roberts; University of Michigan Law School Professor Leah Litman; George Mason University Antonin Scalia Law School Professor Ilya Somin; and University of Maryland Burke Chair of American Cultural and Intellectual History Professor Holly Brewer.
Litman called the Trump administration’s orders “some of the more brazen and systematic legal violations that we have seen of late.”
“They are challenging the idea that the executive branch is subject to the law,” she said.
She worried that the court’s decision will allow the executive branch more freedom to continue such actions.
“[The court is] providing the administration with fodder and cover to resist the prospect of judicial oversight and to continue to challenge lower courts’ ability to rule against the administration,” Litman said. “And I think those are some of the more troubling aspects of this decision—the extent to which it emboldens the administration’s lawlessness and provides them with some cover that is more legitimate than their unhinged, frankly, attacks on the lower federal courts.”
Brewer agreed, providing a historical look at the use of injunctions to check executive power.
“Although there might be other alternatives … at this moment, [the ruling] overturns most of the ways that the current president’s orders have been stopped,” she said, adding, “The impact, in the immediate sense, of this decision is to remove the restraints that have been put on this president’s executive orders.”
Siegel moderated the second panel, “What Comes Next in the Birthright Citizenship Cases and in Other Legal Challenges to the Trump Administration’s Actions,” which looked at the future of birthright citizenship and discussed the possible consequences for the next generation of children if this guarantee is removed.
Speakers on this panel included: Georgia State University College of Law Professor Anthony Michael Kreis; Seattle U Law Professor and Center for Civil Rights and Critical Justice Co-Director Jessica Levin; Boston University School of Law Professor and Harry Elwood Warren Memorial Scholar Robert Tsai; Northern Illinois University Professor Evan Bernick; and University of Washington School of Law Professor Jeremiah Chin.
Kreis called the court’s move “the perversion of history.”
“This is one issue where everyone, I think, should be on the same page … We have an unbroken tradition of birthright citizenship that means that people who are born on U.S. soil, by virtue of being born on U.S. soil, are native citizens and that’s that,” Kreis said, noting that this tradition goes back “many, many centuries” to England, before the establishment of the American Colonies.
“The fact that we’re suddenly having this debate now is really shocking … and anti-constitutional,” he said. “The whole point of the 14th Amendment and its codification of birthright citizenship was to foreclose this debate. We were not supposed to be having this discussion.”
Kreis pointed out that if the birthright citizenship executive order is upheld, children would be born stateless.
Levin, who with the Seattle U Law Center for Civil Rights and Critical Justice submitted amicus briefs in support of the litigation opposing Trump’s order, related the history of the 14th Amendment.
“The citizenship clause was enacted to remedy the harm of the Dred Scott decision [of 1857], where the court held that Black people could not be citizens,” Levin said. “The citizenship clause was meant to ensure that race would never again be used to deny belonging. But the historical record provides many examples of how we as a country, time and time again, have failed to live up to the promise of the citizenship clause.”
Over the years, she pointed out, the federal government violated the birthright citizenship clause to discriminate against various groups, such as immigrants from South Asia and women (predominately of Asian American descent) who married non-citizens in the early 20th century.
Levin also expressed concern that the executive order, which is currently slated to apply only to future births, could be changed to be applied retroactively, stripping American adults of their citizenship so they are stateless.
“For communities of color, especially those already targeted by immigration enforcement, this amplifies fear, instability, and exclusion,” she said. “It is all too easy to imagine this administration stripping citizenship retroactively.”
At the close of the webinar, Siegel thanked the panelists wholeheartedly.
“Thanks to this group of wonderful scholars who joined us at a moment’s notice, gave us their best, and tried to explain these complicated issues in very simple terms in ridiculously short time periods,” he said.
Seattle University Law has posted a full recording of the webinar on its YouTube channel.