JUANA SUMMERS, HOST:
Also from the Supreme Court today in a split decision, the justices reaffirmed that the Constitution does guarantee citizenship automatically to virtually all children born in the U.S. The Supreme Court weighed in after President Trump issued an executive order that said that citizenship would not be granted to babies born to parents who enter the country illegally or who work here legally on temporary visas. Trump's order was based on a narrow interpretation of the citizenship clause of the 14th Amendment, that it was only ever meant to apply to formerly enslaved people after the Civil War. Earlier today, we called up Amanda Frost, a professor at the University of Virginia School of Law, to get her take on today's decision, starting with the court's response to the Trump administration's argument.
AMANDA FROST: Five of the justices said he misunderstood the Constitution, that the Constitution did require near universal birthright citizenship, and then a sixth justice, Justice Kavanaugh, said that a federal statute barred Trump from implementing his executive order.
SUMMERS: Now, this executive order, which is now struck, was just one part of the Trump administration's broad crackdown on immigration. As we look forward, are there other related cases working through the courts right now that we should have our eyes on?
FROST: Well, I should say the Trump administration has succeeded in several of its major immigration efforts before the Supreme Court this term. So just last week it issued its decision announcing that the court said it could not review the Trump administration's decision to terminate temporary protected status for Syrians and Haitians, but that decision could apply to all the individuals, over a million people, with temporary protected status in the United States, potentially leading to their removal over the coming year. And as well, the Supreme Court upheld the Trump administration's view of an asylum provision that said individuals who are not yet in the United States cannot seek asylum, even if they're at the border.
SUMMERS: Earlier today in a comment on Truth Social, President Trump called on Congress to pick up his cause. I'm going to quote him here. He wrote that "Congress should start today to work on ending expensive and unfair to our country birthright citizenship." And I wonder, from your perspective, is that a strategy that could pass legal muster in a way an executive order could not?
FROST: Absolutely not. I mean, the Constitution is the supreme law of the land, and five members of the Supreme Court said the Constitution does not permit the interpretation that Trump was forwarding before them. So a statute would fare no better than an executive order. But let me just say that if the nation is concerned about various issues that come up regarding birthright citizenship - for example, birth tourism, which appears to be a small number of people but nonetheless is a reality - there are ways to combat that that don't end birthright citizenship for hundreds of thousands of people going forward. In fact, there is a law on the books that would prevent birth tourism if the Trump administration would enforce it. Similarly, if we don't like undocumented immigration, there are ways to combat that without penalizing the innocent children of undocumented immigrants who were born and lived their whole life in the United States.
SUMMERS: Yeah. Over the course of President Trump's presidency, we've seen him push repeatedly to redefine who is an American. In fact, as many may remember, the president attended the arguments in April over birthright citizenship, which is the first time a sitting president has attended that sort of hearing. Can you talk a bit about how this administration has already eroded citizenship rights in this country?
FROST: Well, first of all, simply by issuing this executive order and raising these arguments, the president took what was a fringe idea and moved it into the mainstream discourse. And by a fringe idea, I mean, very few people supported this view of the citizenship clause. In fact, I don't think this precise line where he was trying to carve out children of undocumented immigrants and temporary lawful immigrants had ever been drawn before by anyone. So this president was attempting something brand new that had not been accepted by presidents before him, by the Supreme Court in multiple decisions in both dicta and holding and by legal scholars. So this was a fringe idea, and I think he has effectively moved it into the mainstream forefront of discussion, although this Supreme Court decision might shut it down.
SUMMERS: This decision also checks executive power in a way that this court has not always done. What's that tell you?
FROST: Well, that tells me when the Constitution is clear enough and when the policy at stake is important enough, the Supreme Court will push back on claims of executive authority. In the other immigration cases where President Trump did prevail this term, there were statutes issued by Congress that did give the president some discretion and leeway. And there was a debate about exactly how much, but the court sided with the president. But here, the whole purpose of the citizenship clause was to take away the question of who could be a citizen of the United States from the political branches, from the whims of the majority. And for that reason, I think the court recognized that and upheld the near universal view of birthright citizenship that our nation has consistently followed pretty much since 1868.
SUMMERS: UVA Law Professor Amanda Frost, thanks so much.
FROST: Thank you.
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