![\"inauguration,](\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/2025\/01\/GettyImages-2194473783-300x199.jpg?resize=300%2C199&ssl=1\" "\\"\\"")
<\/p>\n(Photo by Jabin Botsford \/The Washington Post via Getty Images)<\/p>\n<\/div>\n
Yesterday, in his first day back in office, Donald Trump made a pass at rewriting the Constitution via executive order. Of course, that\u2019s not how any of this works, and the American Civil Liberties Union has already filed litigation challenging the EO claiming to end birthright citizenship as guaranteed by the 14th Amendment. As the Brennan Center\u2019s Thomas Wolf makes clear<\/a>, \u201cTrump\u2019s executive order is unconstitutional, in direct conflict with the plain language of the 14th Amendment and over a century\u2019s worth of Supreme Court case law.\u201d<\/p>\n It\u2019s also, you know, an attempt at legal sleight of hand<\/a> to make the racism more palatable.<\/p>\n Wolf is optimistic about the integrity of the 14th Amendment, saying Trump\u2019s EO \u201cwill be litigated immediately and its prospects of surviving those court fights are slim, even before a Supreme Court stacked with conservative justices and Trump appointees.\u201d He points to the 130-year-old precedent of United States v. Wong Kim Ark,\u00a0<\/em>and thinks that even the conservative dominated Supreme Court will err on the side of birthright citizenship.<\/p>\n It\u2019s reasonable to wonder whether the current Supreme Court will defy Trump on an issue about which he has campaigned so aggressively. It\u2019s undoubtedly true that the justices have bent American jurisprudence into novel shapes to avoid direct conflict with Trump. But backing birthright citizenship doesn\u2019t require some unprecedented feat of progressive jurisprudence. Just look at the Fuller Court, which decided Wong Kim Ark<\/em>. Two years earlier, it issued Plessy v. Ferguson<\/em>, one of the most notoriously racist rulings in U.S. history. Even those justices \u2014 who embraced the two-tiered \u201cseparate but equal\u201d regime of race relations that ruled the United States for generations \u2014 couldn\u2019t find an honest way around the 14th Amendment\u2019s plain language. This precedent will loom \u2014 rightly and heavily \u2014 over any move the Court makes.<\/p>\n<\/blockquote>\n But before SCOTUS takes up the case, the ACLU is doing everything it can to ensure success. Because, though the rock solid legal foundation of birthright citizenship *should* be enough to end the inquiry we\u2019ve seen some shockingly obsequious behavior in the age of Trump. Like, I dunno, when the Fifth Circuit\u2019s James Ho \u2014 despite previously writing<\/a> that it would take a constitutional amendment to overturn birthright citizenship \u2014 let Trump and the rest of the world<\/a> know he was totally cool with the retrograde position of birthright citizenship that the 47th president is staking out.<\/p>\n What better way to avoid ambitious appellate court judges auditioning for a potential Trump nomination to the Supreme Court than to take your case to a circuit \u2014 the only one in the nation \u2014 with no active judges appointed by Republicans<\/a>? That\u2019s what the ACLU did (along with a coalition of state Attorneys General in a subsequently filed lawsuit). (Both complaints are available below.)<\/p>\n Now, putting your lawsuit in the First Circuit, even without any active duty Republicans, is far from the most problematic form of judge shopping<\/a> that plagues our judiciary. If the GOP is particularly infuriated by the tactic, perhaps they\u2019ll reconsider their stance<\/a> on the Judicial Conference\u2019s proposal on how cases implicating a nationwide injunction are assigned.<\/a> Indeed, if this question makes it to the appellate level there\u2019s even a chance they\u2019ll pull a panel with one or more of the senior status judges appointed by Republicans in the circuit. But there won\u2019t be any judges low-key interviewing for a promotion and that makes it a lot more likely the case is decided on constitutional, rather than political, grounds.<\/p>\n Then we\u2019ll just have to cross our fingers when it makes it to the Supreme Court.<\/p>\n ACLY birthright lawsuit This is just smart lawyering. The post The ACLU\u2019s Strategic Play In The Birthright Citizenship Case appeared first on Above the Law. (Photo by Jabin Botsford \/The Washington Post via Getty Images) Yesterday, in his first day back in office, Donald Trump made a pass at rewriting the Constitution via executive order. Of course, that\u2019s […]<\/p>\n","protected":false},"author":0,"featured_media":101336,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,17],"tags":[],"class_list":["post-101335","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law","category-legal_matters"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/01\/GettyImages-2194473783-scaled-RzmMcp.jpeg?fit=2560%2C1702&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/101335","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=101335"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/101335\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/101336"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=101335"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=101335"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=101335"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
<\/a>State AGs
<\/a><\/p>\n
\n![\"Kathryn](\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/2021\/06\/IMG_5243-1-scaled-e1623338814705-150x150.jpg?resize=150%2C150&ssl=1\" "\\"\\"")
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast<\/a>, and co-host of Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email her<\/a> with any tips, questions, or comments and follow her on Twitter @Kathryn1<\/a>\u00a0or Mastodon @[email\u00a0protected].<\/a><\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"