THE PROMISE OF AMERICA

Analyzing the recent Barbara V. Trump Supreme Court case.

Late last week, the nation’s eyes turned to the Supreme Court. As their focus honed in upon the nine (unelected) justices that define the legal landscape of our lives, they saw something unusual and historic: the President of the United States sitting in attendance to take in the proceedings. Putting aside the intimidation that President Trump seemed to convey through his arrival, this was the first time a president ever sat and watched the Supreme Court listen to oral arguments on any case. Why was this case so important for President Trump to attend? What implications does it have on American society? The answer might surprise you despite the arcane and esoteric nature of its description.

The case in question is Barbara v. Trump. Where did it come from? In January of 2025, Trump signed Executive Order (EO) 14160, titled “Protecting the Meaning and Value of American Citizenship.” This EO denied birthright citizenship to children born in the United States to undocumented immigrants and temporary workers with legal visas. You might remember from grade school social studies that the Fourteenth Amendment to the Constitution guarantees that right to every child regardless of the status of their parents.

However, the issue of the controversy arises—at least in the elite, intellectual, and removed world of the Supreme Court—in the language (you probably forget) within the Fourteenth Amendment that states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...“ Nearly all federal judges that heard this case at the District level shot it down and quite conspicuously. Some even called it “blatantly unconstitutional” in their rulings. Where do conservatives and liberals come down on the matter? How should Gadflies come down on it?

Conservatives stood in Court to support Trump’s Executive Order. Pointing to history, the Solicitor General argued that the protections of the Fourteenth Amendment were primarily meant to give citizenship to recently freed slaves and their children. He also pointed out that most countries do not award citizenship merely for birth in their respective countries. The Solicitor then introduced selected historical commentary to suggest that temporary visitors or their kids were never intended to receive citizenship. Beyond history and commentary, he pointed the language in the Fourteenth Amendment that reads “subject to the jurisdiction thereof” in order to insinuate that those without allegiance or domicile should be excluded from citizenship. Finally, he raised policy reasons that should bar citizens to advance the government’s position. Specifically, the Solicitor lamented that this would encourage “birth tourism” and create “a whole generation of American citizens abroad with no meaningful ties to the United States.”

The Court took significant exception to some points offered by the government. Justices scoffed at the notion that policy should control or even be considered in the realm of jurisprudence. This logic extended to the relatively minimal weight they seemed to put on the government’s use of congressional discussions surrounding these laws and references to legal standards from thousands of years ago. They also took notice of the fact that Congress enacted laws in the 1940s and 1950s that endorsed the original views of birthright citizenship.

The opponents of Trump’s Executive Order also had their chance to speak and they did vociferously. Their main argument against the EO is that the Constitution plainly allows citizenship due to birth inside America. It was what Congress passed in 1868 (and meant to overturn Dred Scott v. Sandford) and reaffirmed in the case that ruled on the matter squarely in 1898, United States v. Wong Kim Ark. Responding to the government’s case, opponents dismissed the byzantine logic of the Solicitor and referred the Justices back to the bright line rule of the constitution: people born here are citizens. Finally, they agreed with policy considerations mentioned by some Justices themselves. Particularly, they doubted that this citizenship stance could be enforced practically. It would require women to show papers and prove citizenship right after giving birth and they opined that that would be impossible and perverse. With the debacle in Minnesota just a few months ago, does anyone want ICE roaming hospitals and harassing new mothers?

The Gadflies among you might note some interesting and disturbing things after perusing this legal battle. First, where have all the conservative textualists gone? These are the same group of people that used to decry arguments outside of the plain text of the statutory or constitutional language in controversy including other countries’ standards of laws, congressional testimony, or policy considerations. Second, the hypocrisy of conservatives and others supporting this EO bely their intentions. They are not attempting to protect American citizenship so much as they are trying to exclude certain groups from it. Third, this is not the first time this has happened.

American history is littered with despicable individuals and groups who have sprung up at various times to attack foreigners on the back of racist, nativist intentions covered in the sheep’s clothing of heritage and security concerns: Know Nothing Party (attacking the Irish), Chinese Exclusion Act (attacking, predictably, the Chinese), Ku Klux Klan (attacking African Americans, Jewish, Catholic, and any other person that was not crazy enough to put on a hood and ride around the country like a lunatic).

This is just a pile on of an unfavorable and unfortunate group. More than mere bullying, it has the tinge of racism too. One is reminded of the Willy Horton ads from the 1980s by the way that this EO and its supporters talk about whom they are trying to keep citizenship from and why.

Also, it is pure hypocrisy. If you take a gander at any of the people endorsing it-Trump, the Solicitor General, leading Congressional figures-all of them are from groups that were previously feared and barred from entering the United States. Have we forgotten our history? Maybe we have because we are clearly repeating our mistakes. Have we forgotten our values? Maybe we have because we used to be a “Big Brother” country shining a light of freedom across the globe inviting the poor huddles masses from anywhere to enter always.

Now, it seems that our leaders are trying to make American citizenship as exclusive as a country club membership. America is remarkable for the opposite reasons: open, inclusive, confident, and optimistic. We take pride in being the melting pot for the world. We let all people jump in and add their lives to the mystical recipe of American society. Let us not limit that experience and our exceptionalism out of racist and nativists fears. The broad shoulders we let the world jump on-especially those otherized groups shunned by the rest of society-makes us stronger, not weaker. The weird, oppressed, and degraded groups that followed the promise of liberty we beamed through their lives and showed up at our shores seeking a better life adds to the brilliance of our exceptional legacy. They always have.

How can we claim to be the land of the free and the home of the brave if we lead our lives blinded by fear and racism. Let us not fall into the shadows of doubt and despair but raise our heads high and step into the light of our true American character to find our way forward.

The Supreme Court will decide Barbara v. Trump later this summer.