Easy Sunday: Complications in the delivery room

A baby born in Oregon is a U.S. citizen. Simple.

A baby born in Texas may not be. For them, it is complicated.

This was meant to be an "easy Sunday" post, so let's start with the easy ones. Twenty-two states, plus the District of Columbia, joined in the lawsuit to protest Trump's executive order declaring that the U.S. government would not recognize U.S. citizenship of children born after February 19, 2025, unless they met certain conditions. Those are: Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, Wisconsin, and D.C.  For babies born in these states, it's same-old, same-old. Easy.

The Supreme Court's decision this week wasn't about citizenship by birth in the U.S., at least not directly. It was about whether a judge blocking an unconstitutional order by the executive applied nationwide, or only to the parties to the lawsuit in front of the judge. They decided that only the parties would benefit from a judge's injunction. So, in this week's case, the injunction left out the citizens of the 28 states that were not parties to the lawsuit. 

In the other 28 states Trump's order denies citizenship to people born under these conditions:

-- At the time of birth, the baby’s biological mother is “unlawfully present” (with no legal status) in the U.S. and the biological father was not a U.S. citizen or lawful permanent resident.

-- At the time of birth, the baby’s biological mother was in the U.S. with a temporary visa or permit, and the biological father was not a U.S. citizen or lawful permanent resident.

This means that the legal status of the mother needs proving up, which would be easy if the mother has a U.S. passport. Only about half of Americans have one. She needs to prove her legal status some other way.

If her status is unproved, the father's status needs proving up. It is further complicated because paternity might be assumed or claimed, but that, too, needs proving up.

Proving one's legal status is complicated by the fact that conditions of amnesty or asylum have been in transition.

Immigration of large numbers of people from Latin America and Asia triggered a familiar response in U.S. history -- anti-immigrant nativism. Trump promised to reverse everything: deport everyone and end birthright citizenship. "Anchor baby," and "birth tourism" stories generated support for Trump's policy -- at least on principle.

I expect ending birthright citizenship to be a net-negative in practice. It will be complicated and contentious. Administering the new procedures will be slow and expensive. There will be facts to determine. There will be appeals. It will be chaotic or it will be bureaucratic, two bad outcomes.

The current Supreme Court acts primarily like an unelected political body, carrying out a Republican agenda. I expect them to save Trump from himself by deciding the Constitution says what it says, and go back to the prior status quo of birthright citizenship for all. This is a sacrifice play. Trump will rail against the Supreme Court, which will benefit both Trump and the Court. It will inoculate the Court from the claim that they are in the tank for Trump. That will give them better credibility to keep deciding cases in Trump's favor on other issues of greater importance to Trump and Republicans, especially on race, voting rights, gerrymandering, and presidential power to govern without interference from the Congress or courts, and immunity for Trump on any crimes he commits or has committed.

I predict this split in the states won't last long.

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