Numerous lawsuits contesting potentially unlawful actions by the Trump administration exist — 132 cases reported as of March 21, according to the legal news platform Just Security. That’s a considerable number to monitor.
Two significant issues highlighted in these lawsuits stand out as Trump’s most overt breaches of the Constitution, warranting particular focus.
One pertains to whether Trump possesses the authority to unilaterally cancel federal spending mandated by Congress, a matter known as “impoundment.” As future Chief Justice William Rehnquist articulated in a 1969 memo from the Justice Department, “it is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a congressional directive to spend.”
The second issue involves birthright citizenship. The Constitution explicitly states that anyone born within the United States and subject to its laws is a citizen, irrespective of their parents’ immigration status. A Reagan-appointed judge remarked regarding Trump’s efforts to revoke citizenship from certain individuals born in the U.S., “I’ve been on the bench for over four decades, I can’t recall another case where the question presented is as clear as this one.”
The current Supreme Court is not only significantly aligned to the right but also exhibits a concerning level of partisanship. The Court has spent recent years addressing past grievances, overturning cases that have been contested by the Republican Party for decades. It even permitted Trump, the head of the Republican Party, to exploit his official powers for unlawful acts.
Thus, it’s logical to be apprehensive that a majority of justices might simply cater to the desires of a Republican administration.
This context makes the birthright citizenship and impoundment matters critical indicators. No competent lawyer, and certainly no reasonable judge, could deem Trump’s actions in either scenario lawful. The constitutional interpretation of these issues is not seriously contested. Should the Court rule in favor of Trump in either situation, it would be challenging to envision the justices providing any substantial resistance to his future ambitions.
Fortunately, there are preliminary signs suggesting that this may not occur. Regarding the impoundment matter, the Supreme Court recently denied the Trump administration’s request to halt a lower court’s order mandating approximately $2 billion in payments to foreign aid organizations.
The ruling was 5-4, and the Court’s decision likely hinged on a blunder by Trump’s legal team. Still, even a minor setback for Trump indicates that the majority of justices are not so quick to support the leader of the Republican Party that they would seize the earliest chance to do so.
In a similar vein, three cases pertaining to the birthright citizenship issue have recently surfaced on the Court’s shadow docket — emergency motions and related matters assessed, often swiftly, outside of the Court’s usual timetable. As of now, the Court has issued only brief directives indicating they won’t begin deliberating the case until at least April 4, more than three weeks following the Trump administration’s intervention request.
While this delay does not definitively assure the safety of birthright citizenship, the fact that the Court chose to postpone consideration of lower court decisions safeguarding it implies skepticism towards the Trump administration’s arguments. Had they taken those claims seriously, they would likely have addressed the cases more rapidly; in contrast, the plaintiffs in the foreign aid lawsuit were granted just two days to respond to the Justice Department’s arguments.
The legal arguments for impoundment are extremely weak
Trump has claimed extensive authority to eliminate spending approved by Congress, even dismantling entire agencies like the U.S. Agency for International Development (USAID). He also issued an executive order intending to remove citizenship from numerous children of undocumented parents, or those temporarily residing in the United States. To date, the courts have approached both actions with skepticism, which is justified given their manifest unconstitutionality.
Rehnquist’s dismissive take on impoundment speaks volumes. The Constitution offers no support for the notion that the president can withhold funds mandated by Congress. In fact, the only language in the Constitution that pertains to this topic actually contradicts Trump’s position. Among other requirements, the Constitution instructs that the president “shall take care that the laws be faithfully executed,” necessitating that the president carries out any law governing federal spending.
Additionally, it’s significant that at least two Republican justices on the Court have previously expressed doubt about impoundment. Justice Brett Kavanaugh remarked in a 2013 opinion that “even the President does not have unilateral authority to refuse to spend” funds allocated by Congress. Chief Justice Roberts remarked in a 1985 memo on impoundment that “no area seems more clearly the province of Congress than the power of the purse.” (Though, it’s worth noting that Roberts suggested, in an attachment to that memo, that the president might have broader authority concerning spending related to foreign policy.)
The legal arguments against birthright citizenship are even weaker
The case for birthright citizenship is even more clear-cut. The Fourteenth Amendment stipulates 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.” A person is subject to U.S. jurisdiction if the federal government can enforce its laws against that person. Undocumented immigrants and their offspring evidently fall under U.S. law, or else they could not be arrested or deported.
As per the Supreme Court’s ruling in United States v. Wong Kim Ark (1898), the “subject to the jurisdiction” exception to birthright citizenship is narrow and mainly applies to children of “diplomatic representatives of a foreign state,” who possess diplomatic immunity from U.S. law, alongside children “born of alien enemies in hostile occupation.”
At least three courts have issued rulings obstructing Trump’s assault on birthright citizenship. In a motion requesting the Supreme Court to limit these orders, the Trump administration contends that the term “jurisdiction” should be interpreted as “allegiance.” Thus, a person does not attain citizenship if they don’t owe “primary allegiance to the United States rather than to an ‘alien power.’”
Nonetheless, there are two reasons to question whether the Trump administration genuinely subscribes to this argument. One reason is that Trump’s executive order only aims to revoke citizenship from certain children born to foreign nationals — for instance, children of lawful permanent residents remain citizens. But if the Fourteenth Amendment doesn’t apply to those owing “primary allegiance” to an “alien power,” this would imply that all children of foreign nationals should lose their citizenship. The Constitution doesn’t differentiate based on a child’s parents’ legal status, nor does it categorize based on whether the parents are temporarily or permanently residing in the U.S.
The second reason is that, in its brief to the justices, the administration does not seek a full reinstatement of Trump’s birthright citizenship order. Instead, it requests the Court to narrow the lower court’s rulings so that they apply solely to the plaintiffs in the specific lawsuits contesting that order. If Trump’s legal team believed they had a compelling argument, they likely would have petitioned the justices to address the substantive aspects of this case.
The debate over whether lower court judges can issue what are termed “nationwide injunctions,” which suspend a federal policy entirely rather than merely exempting plaintiffs in an individual case from the policy, has persisted for some time. These injunctions are what currently block Trump’s assault on birthright citizenship. Trump’s Justice Department urged the Court to restrict these nationwide injunctions during his presidency, as did the Biden administration. Nevertheless, the Court has allowed some of these comprehensive orders to remain in effect thus far.
While there are compelling arguments against these nationwide injunctions, the Court has consistently resisted efforts to curtail them for years. It would be quite unusual for the justices to suddenly decide to remove lower courts’ power to issue such broad orders in the birthright citizenship cases, where Trump’s claims regarding the merits are frivolous.
In any event, the indications the justices have provided regarding their stance on birthright citizenship point towards Trump’s impending loss. When the Justice Department requests the justices to stay a lower court’s decision, typically one of the justices asks the opposing party in the case to respond to that request by a short deadline — often as little as a few days, and rarely exceeding a week. However, this time, the Court allowed the plaintiffs advocating for birthright citizenship a full three weeks to respond.
As long as the Court remains inactive, the lower court orders preventing Trump’s attempt to undermine birthright citizenship stay in effect. The justices are likely to postpone any action until they examine the plaintiffs’ response. Thus, by extending this case for an additional three weeks, the justices ensured that Trump’s executive order would not take effect anytime soon.
All of this suggests that the Supreme Court is unlikely to support Trump on his two most evident constitutional violations. This doesn’t imply that the Court will effectively check many of Trump’s other unlawful endeavors. However, it does indicate that at least some members of the Court’s Republican majority will occasionally refuse to acquiesce to the leader of their party.
