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In their analysis, the scholars suggest Trump’s case could be stronger than critics anticipate once it reaches the Supreme Court. They pose a key question: “Has a citizen of another country who violated the laws to enter and remain here pledged obedience to those laws?”
Though illegal immigrants aren’t hostile enemies, they state: “They gave no obedience or allegiance to the country when they entered—one cannot give allegiance through an act of defiance.”
The professors argue that individuals entering unlawfully can be removed without the judicial protections granted to citizens, reinforcing that illegal entrants and their children fall outside the 14th Amendment’s protections.
On the exclusion of children born to lawful but temporary residents, they note it as “a more complicated question not addressed here.”
The pair also highlight that the Supreme Court has never directly ruled on birthright citizenship for illegal immigrants, observing: “The Court has presumed applicability to illegal residents in a footnote, but it was neither argued nor central to the case.”
Despite four federal judges blocking Trump’s order, conservative legal voices are rallying behind him. Mike Davis of the Article III Project asserts: “President Trump is acting fully within his Article II powers. Activist judges are creating a constitutional crisis based on politics. If it reaches the Supreme Court, so be it.”
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Harvard’s Jeannie Suk Gersen notes Trump’s legal endgame: “This makes Trump’s legal strategy intelligible,” she wrote in The New Yorker, suggesting he anticipated the path to the Supreme Court.
With the stakes sky-high, the nation braces for what could become a landmark Supreme Court battle on birthright citizenship and presidential power.
