Trump Attacks Supreme Court Over Pending Birthright Citizenship Case

In a Truth Social post on Monday, President Donald Trump demeaned the Supreme Court over the yet-to-be-argued case regarding the 14th Amendment’s birthright citizenship clause, while also blasting the court over its ruling that his global tariffs were unlawful.

Trump predicted that, if the high court had found his tariffs unconstitutional, they would likely find his executive order seeking to reinterpret the birthright citizenship clause to be improper, too. Many legal experts have said that Trump’s executive order, seeking to redefine a portion of that clause into meaning something different than what it has meant for the past century and a half, is indeed out of line.

Trump was xenophobic in his attack against the Supreme Court, saying the justices will “rule in favor of China” and other nations, claiming those countries are “making an absolute fortune on Birthright Citizenship” — seemingly alluding to an unfounded theory that the country is engaged in a massive “birth tourism” scheme to overtake the U.S.

The court, Trump suggests, should interpret the clause as “written to take care of the ‘babies of slaves'” after the Civil War, contending that the “EXACT TIMING of its construction, filing, and ratification” means it should only be read that way. He further asserted that a decision in favor of keeping the status quo on birthright citizenship — and not allowing him to rewrite it through executive order, which would be unconstitutional — would be “so bad and deleterious to the future of our Nation.”

Trump’s executive order seeks to end birthright citizenship as it applies to any child born in the U.S. Instead, under his order, if neither parent of a child born in the country is a U.S. citizen, then the Trump administration interprets that child to not be a citizen, either.

It’s unclear where Trump is getting his opinions from, but he has previously tried to ban “birth tourism,” and right wing pundits have spoken about the idea in recent days.

In a recent FOX News interview with right-wing author Peter Schweizer, who co-founded the far right group the Government Accountability Institute along with former Trump adviser Steve Bannon, Schweizer bizarrely claimed that China is “at war with the Christian civilization of the United States.” He asserted that China is exploiting birth tourism by having its citizens birth 100,000 babies each year in the U.S., who then return to the U.S. to legally vote in elections in favor of Chinese interests.

Schweizer did not provide evidence on which to base his claims, and in fact, he has failed notable fact-checks in the past. “Schweizer’s style is not to fabricate or allege illegality,” journalist Joshua Green explained in an NPR interview in 2019. “Instead, he uses his reporting to lay out a suggestive timeline that leads readers to a conclusion that, hey, something is dirty here.”

There is no official data on the number of births from foreign tourists — one conservative-leaning think tank estimates that as many as 33,000 may happen per year, far less than the 100,000 from China alone that Schweizer is claiming. But another centrist think tank, the Niskanen Center, says that conclusion is in itself a vast overreach, with less than 2,000 such births happening annually.

Even if the 100,000 figure were accurate — and no evidence suggests that it is — it would represent just 2.8 percent of the 3.5 million births happening in the U.S. each year. Put another way, it would take 35 years for any country, birthing 100,000 babies in the U.S. for the conspiratorial purposes Schweizer claims they are, to overcome just a single year of births, making the claim even more absurd and clearly based on bigoted nonsense.

Indeed, most experts deride the “problem” of birth tourism as so rare that it’s essentially a myth.

Despite these facts, Republicans in Congress have introduced legislation that would ban a “birth tourism industry” from taking shape in the U.S., relying on similar xenophobic claims that the president has promoted.

Even if Trump did indeed get some of his thinking from Schweizer or other xenophobic sources, it’s largely a moot point, as constitutional amendments cannot be changed through executive order. Instead, they require Congress to pass a resolution, or for two-thirds of states to approve one themselves — after which three-quarters of all states must ratify it before the Constitution can be changed.

Despite that fact, the conservative Supreme Court agreed in December to take up the case, signaling a willingness by at least four justices to hear more of the Trump administration’s arguments. The case will be argued before the court in April.

Critics derided the court’s decision to hear arguments when it announced justices would hear the case.

“This case is a right-wing fantasy, full stop. That the Supreme Court is actually entertaining Trump’s unconstitutional attack on birthright citizenship is the clearest example yet that the Roberts Court is broken beyond repair,” said Brett Edkins, managing director of policy and political affairs for the advocacy group Stand Up America.

The 14th Amendment was enacted in 1868, and states that “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.” Trump’s executive order singled out the phrase “subject to the jurisdiction thereof,” dubiously alleging that it meant a child’s parents are subject to different jurisdictions than the U.S. if they are from a different country, and thus a child born in the country shouldn’t automatically receive citizenship.

That argument has already been litigated. In 1898, in a case called United States v. Wong Kim Ark, the court affirmed that the phrase “subject to the jurisdiction thereof” was describing the children of diplomats or, in cases of national emergency, where a foreign invasion resulted in an aggressor country having children born in the U.S. In those two cases, the court determined that the birthright citizenship clause shouldn’t apply — but the court did explicitly rule that children born to immigrant parents on U.S. soil should be given citizenship.

The ruling by the Supreme Court has since been upheld multiple times.

The Legal Defense Fund, which was one of the groups that sued against Trump’s executive order when it was first issued, has explained the dire complications that would arise if the Supreme Court rules in the president’s favor.

“For generations of families, birthright citizenship has represented the promise that their children can achieve their full potential as Americans and pursue their dreams,” the group says on its website. “President Trump’s executive order will stigmatize and send a message of exclusion to many others who will have their citizenship questioned because of their race or who their parents are. Excluding people born here will create a permanent underclass of people who have never been to another country and may be rendered stateless.”