On Tuesday, the Supreme Court handed down one of its most anticipated decisions of the year, rejecting President Donald Trump’s executive order attacking Constitutionally enshrined birthright citizenship. According to CNN legal analyst Elliot Wiliams, “the big shock” wasn’t the decision itself, but the fact that it divided conservatives on the court. The case, Trump v. Barbara, essentially looked at the legality of the 14th Amendment, which was adopted over 150 years ago and was codified by congressional statute in the mid-20th century. Trump sought to bar that right from those born to undocumented immigrants or whose American citizenship has been temporarily suspended. His effort was rejected by the court, with conservative justices John Roberts, Amy Coney Barrett, and Brett Kavanaugh siding with the liberal decision. “The trouble is that there is scant evidence for this dramatically revisionist view,” wrote Chief Justice Roberts of the administration's arguments against the 14th Amendment. While Kavanaugh disagreed with that assessment, he voted to block Trump’s order, citing the federal statute set by Congress. When CNN convened a panel to discuss the ruling, Williams emphasized the conservative split, zeroing in on Kavanaugh’s concurrence in particular. “Brett Kavanaugh's concurrence is fascinating in that the constitutional question, in terms of what the 14th Amendment says,” noted Williams. “That's only five-four on this court. Justice Kavanaugh sort of carves himself out of that and draws this sort of alternative approach of saying that, yes, we don't even need to reach the constitutional question. There's a statutory question and, quite frankly, Congress could have actually effected the same result here that the President tried to do with this executive order. That's the big shock of the day, more than anything else: that the Supreme Court was this closely divided on the effect of the 14th Amendment."According to Williams, “It is a profound decision, both in terms of what it is and means to be an American and also, staving off the absolute legal chaos that would have broken out had they ruled the other way.”He raised the examples of the citizenship of adopted or abandoned children, and other complicated scenarios. “Everybody would have to verify their citizenship and create a generation of legal mess,” said Williams. “And so they staved off a big problem. But the closeness on that constitutional question really stood out to me.”But as the New Republic warns, Kavanaugh’s approach does not necessarily end the threat to birthright citizenship — quite the opposite.As Kavanaugh wrote of his stance, “In my view, the Executive Order does not violate the Fourteenth Amendment. But the Order does contravene a federal statute. Congress could — consistent with the Fourteenth Amendment — amend [this law] or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. But Congress has not yet done so.” As the New Republic explains, this may have just laid out a “road map” for conservatives who want to end birthright citizenship, prompting congressional Republicans to attempt a legislative attack. But with their party projected to take major losses in the fast-approaching midterms, their window to take such action is closing fast.
