written by

Julius Knapp III

“Protecting The Meaning And Value Of American Citizenship,” that is the name of the Executive Order directing that the Executive Branch shall not “issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons:

• When that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or
• When that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth

The legal issues associated with this case are significant. I am not a lawyer, and I have not ever taken a course in public policy or civics (outside of the Maryland state mandated coursework), so I will not pretend to completely understand, let alone adequately explain, the complexities of those issues. Nonetheless, the importance of this case is so significant that it demands that we try. Other than the Trump v. United States case, also known as, the Presidential Immunity Case, or the Citizens United v. Federal Election Commission case, I cannot recall a more impactful case. This case could profoundly affect both how the people engage in politics and how the people understand the role of the legal system. And of course, there have been other impactful cases, I certainly do not want to suggest that those other cases are not also important. However, this case may completely reframe the relationship between Americans and the legal and political systems, making it impossibly difficult for justice to be served as it was.

At its core, the Birthright Citizenship case is about two things. First, is whether the Executive Branch can unilaterally determine the citizenship status of people born in this country. The public debate of whether the children born in the United States to non-citizen parents should be considered citizens themselves has circulated for many years if not decades or centuries. My most recent recollection of when this issue was most prevalent in the public discourse, was in the mid-to-late aughts. Then, President Bush had introduced a bill into Congress that would address the long-standing deficiencies of our immigration system. The bill ultimately failed, but two aspects of the bill, anchor babies and maternity tourism, were especially relevant to the idea of birthright citizenship. Considering those aspects, the Fourteenth Amendment seems prone to abuse. Again, I will not discuss the particulars of those aspects; I present them only as examples of the types of issues the Executive Order is trying to address. And here we begin to understand how problematic this is.

Executive Orders are not laws. They merely dictate the Executive Branch to execute the law by adopting some policy. The effect may be the same, but there is an important distinction. Executive Orders may be modified or terminated at any time by the President. So, assuming the Executive Order stands, birthright citizenship may be permitted or ignored on the whims of one person at any time. The implications of this are extensive and raise many new questions. If the children born in this country to non-citizen parents are not American citizens, what country are they a citizen of? If they are not citizens of any country, are they subject to our laws? This is what is meant by the phrase “subject to the jurisdiction thereof” in the Fourteenth Amendment, that for a child born in this country to be subject to our laws, they must be a citizen at birth. What of the children of infidelity, where an American man is claimed as the father and used to establish birthright citizenship, but it is later discovered that a non-citizen man was the father? Would those children’s citizenship be revoked? Moreover, would this eventually establish a “paternity tourism” industry? What if a future President rescinds or modifies the Executive Order? Will non-citizen children who were born in this country during a previous administration be granted citizenship? The uncertainty introduced by these questions, and many other reasons, is what led so many states to sue. Those states obtained an injunction, effective nationwide, preventing the Executive Branch from executing the Presidents Executive Order.

This introduces the second thing the Birthright Citizenship case is about: whether judges can issue national injunctions. Nearly every current Supreme Court justice has criticized the ability of individual judges to issue national injunctions. Indeed, it does appear to be literal judicial overreach. That is, a district court judge, who can only hear cases brought before the court in their district, can almost literally reach into every other judicial district and impose an injunction that every other judge would be obligated to uphold. For such an issue of birthright citizenship with the potential to impact every district, perhaps this should be permissible. The Supreme Court may, however, decide to limit this power. One option would be to limit the effect of injunctions to only the district or circuit where the case is brought. Under this scheme, a party obtaining an injunction in one district might still appeal to the Court of Appeals in that circuit where they could broaden the scope of their injunction. Of course, this would also significantly slow the ability of disparate individuals to obtain national injunctive relief. It could also prevent Judge Shopping, that is the practice of selecting a judicial district that may be sympathetic to the party suing.

Another option would be to limit injunctions to only the party or class bringing the suit. This would have far reaching effects on the ability of the American public obtain relief from an oppressive government. It would require every affected person to either join a class or bring their own suit. For birthright citizenship, the number of cases may be in the hundreds of thousands, creating a logjam in the courts that could stall the court system to the point of being completely ineffective. And for those believing this option to be the best for birthright citizenship, consider the case presented by Justice Sotomayor. That is, if a future president issues an executive order requiring all guns to be seized and destroyed, should it really be the case that each individual person or class would have to bring their own suit to seek relief?

Indeed, the issues surrounding the Birthright Citizenship case are far reaching and varied. It is unclear from the oral arguments how the nine justices may rule. If recent precedents are any indicator, they may choose a kind of middle ground (although, long time readers will recall the middle ground fallacy). This seems to have been the stance the court took in the Presidential Immunity case. In that case, it was ruled that the President had presumptive immunity for official acts. With the benefit of hindsight and additional legal opinion, this is a distinction without a difference. That is, the President is effectively immune from prosecution, full stop. Whatever the Supreme Court decides in this case, a middle ground may be possible, but it is imperative that they not effectively neuter the American public and the judicial system in the process.

Corrections, Clarifications, and Addendums

This article was written and recorded on 5/24/25. Due to the coverage we gave the No Kings! protests, and the Declaration of Independence episode released on July 4th, this episode was released after the SCOTUS case addressing national injunctions which used the Birthright case as a vehicle to rule upon it. It should be noted that many of the concerns Julius brought up in the article would be repeated on national networks after the ruling came out. Julius was not the source, he was just stating the concerns he saw and others expressed similar concerns.

The Pierre Delecto Sticker mentioned at the beginning of the interview. Pierre Delecto was the handle that Mitt Romney used in his lurker Twitter account.

No Brian, it is dovetails.

[17:20] As of July 4th, Trump has issued 165 Executive Orders. They can be found at the Federal Register. On the other hand Whitehouse.gov shows 79 Executive Orders have been issued.

[19:49] The concerns raised about the Big Beautiful Bill restricting the ability of the Judicial Branch to hold administration officials in contempt would be pulled from the final version before final passage.

[24:07] The US Marshals serve as part of the Justice Department under the supervision of the Attorney General. Their mission is to protect the Judiciary -from judges to jurors- and to enforce court orders.

[27:20] Hitler won a poll on his dictatorship with 89.9%

[30:17] The executive orders that Brian was referring to were EO14281 and EO14283. By weakening civil rights enforcement, these executive orders could help foster a “separate but equal” system that was overturned in Brown v. Board of Education.

[46:07] Trump did state on May 4th that he will not be seeking a third term.

[57:58] The Laffer Curve was drawn on a napkin for none other than Dick Cheney and Donald Rumsfeld in 1974 who were at that time officials in the Nixon Administration. It states that in terms of percent of income, tax revenues increase as you raise the percentage. However, once you reach a certain point the revenues peak, and then the more you increase, the less tax revenue is generated because you stifle growth.

[58:30] I also meant to say that the United States went from being the greatest creditor nation to the greatest debtor nation in the world under Reagan, but I couldn’t find the words.

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