When the Supreme Court issues its decision in the
birthright citizenship case, likely this week, the odds are that it will be a
loss for the Trump administration. The Court heard argument in U.S.
v. Barbara on April 1, 2026. The issue is whether Executive Order 14160, “Protecting the Meaning and Value of
American Citizenship,” can end birthright citizenship.
Trump’s effort to rewrite the Constitution is blatantly
illegal. Doing that takes a constitutional amendment, not a presidential whim.
And while there may be a vote or two for the administration’s theory that the
birthright citizenship provision and accompanying laws don’t mean what they plainly say, it seems more likely, following oral
argument, that there are at least six votes for the noncontroversial legal view
that the 14th Amendment means what it has been understood to say for over one
hundred years—people born in the United States are entitled to U.S.
citizenship, with rare exceptions for situations like the children of
diplomats.
If you want a refresher on the issues in this case, find it here.
So don’t be surprised and pleased when the Court rules
against Trump on this one. It won’t be remarkable. It won’t be a signal that
the Court is finally getting tough with the executive branch. This is, put
simply, a case that would not have happened in any other administration,
because no other president would have attempted such a boldly illegal approach
to changing the Constitution. Rejecting Trump’s effort to circumvent the law is
a low bar for the Supreme Court to clear.
We saw a better example of this Court’s view of executive
branch power last week when it agreed to let the administration end temporary
protected status (TPS) for approximately 336,000 people who are legally present in this country
because of natural disasters in their home countries—Haitians who came here
following earthquakes and hurricanes, or Syrians who came due to armed conflict
in their country. The Trump administration suddenly terminated their permission
to remain in the country in mid-2025.
In a 6-3 decision authored by Justice Alito, with a
majority that included Justice Amy Coney Barrett, who has two adopted children
from Haiti, the Court held that the courts can’t review a president’s decisions
about TPS. In other words, Trump can do whatever he wants to these people, and
the courts can’t stay his hand.
Creator: Lynne Sladky | Credit: AP
The only exception, according to the Court, is for
constitutional claims. There was a claim here that the decisions were
impermissibly race-based: TPS was terminated for Haitians, Syrians,
Venezuelans, Hondurans, and Nicaraguans. The majority’s willingness to ignore
evidence that the administration’s decision was based on race was so
transparently in contravention of the facts that it suggests the exception for
constitutional claims exists on paper, but this Supreme Court will never give
it any weight. Justice Alito held that so long as a race-neutral explanation
for the government’s action exists, no matter how much evidence of racial
animus is otherwise involved, a plaintiff is unlikely to succeed on
constitutional claims.
The part of the TPS case that’s most worth reading is
Justice Kagan’s dissent. She started out by noting that the countries the
administration says it’s safe for people to be forced to return to “continue to
be unsafe.” Justice Kagan wrote, “Secretaries [of State] have repeatedly
examined the conditions in the two countries and have repeatedly determined
that they remain too dangerous to permit safe return.”
But Kristi Noem suddenly
decided they were safe. When the case was brought, lower courts ruled in favor
of the TPS holders, finding that Noem likely violated the law when she made her
decision “without first consulting with other agencies about current country
conditions.” Kagan writes, later in her dissent, that “Haiti and Syria are
countries that the State Department continues to list as too dangerous for
travel; they may be yet more perilous for a former inhabitant.”
But it was the argument about race and the Haitian
plaintiffs that revealed the conservative majority’s willingness to tolerate
the unacceptable. Justice Kagan was joined by Justices Sotomayor and Jackson in
calling it “plain to see” that race was involved in the decision to terminate
the TPS designation for Haiti. Kagan wrote that “the evidence is there, plain
to see, in the President’s statements, which the majority (and for that matter,
his own lawyers) cannot even bear to repeat.” Ouch.
The legal standard for what the plaintiffs have to prove
is taken from a 1977 case, Arlington Heights v. Metropolitan Housing
Development Corp. They must show that “a racially ‘discriminatory
purpose’ was ‘a motivating factor’ in the termination of Haiti’s TPS
designation.” That means “One factor among many is enough when the factor is
racial to presumptively establish an equal protection violation.” That means
the administration’s decision to terminate TPS should be evaluated in light of
“‘circumstantial and direct evidence of intent’ that is available,” as well as
“‘[t]he historical background of the decision’; the ‘sequence of events leading
up’ to it; and, most relevant here, ‘contemporary statements’ by
decisionmakers.” That is the well-established legal standard that the majority
purported to apply.
Justice Kagan takes the majority to task, writing that:
“The evidence they [the Haitian TPS holders] have offered includes statements
by the President so repellent and racially inflected that the majority declines
to put them in print. (Indeed, one measure of the President’s way of speaking
about Haitians is to compare it with the majority’s, which is unfailingly
respectful.)” She then recites the comments the majority declined to include:
“Haitians are ‘eating the dogs . . . . They’re eating the
cats. They’re eating—they’re eating the pets of the people that live [in
Springfield, Ohio].’”
“Haitians in the United States ‘probably have AIDS.’”
“Haiti is a ‘shithole country,’ which is ‘filthy, dirty,
[and] disgusting.’”
“Haitian immigration is ‘like a death wish for our
country.’”
“Haitians, along with some others, are ‘poisoning the
blood’ of our country.”
She concludes with an example of Trump saying, “Why is it
we only take people from shithole countries” like “Haiti [and] Somalia”? “Why
cannot we have some people from Norway [and] Sweden?”
Kagan assesses the majority’s view of Trump’s comments
like this: “The majority briefly replies that those remarks are not ‘overtly
racial,’ … but it is hard to know what that means.” Then, she reaches the only
conclusion possible on these facts: “Haitians are Black. (Norwegians and Swedes
not so much.) The references—of filth, disease, and primitiveness—are shot
through with racial stereotypes and tropes. It is hard to imagine the
statements being made today of any White community.” It’s not a pretty bottom
line, but it’s honest.
It’s hard to refute Kagan’s challenge to the majority:
“The statements fairly shout, in their racial undertones and overtones alike,
that race entered into the President’s resolve to remove Haitians from this
country.” But six conservative Justices chose to ignore them in order to give
still more power to a president who has shown a willingness to abuse it and a
carelessness about how his decisions affect not only immigrants, but American
citizens.
This isn’t just a case about laws and legal standards.
It’s a case about people, about individuals and their futures. Kagan makes this
clear as well, writing about one of the plaintiffs that “Fritz Emmanuel Lesly
Miot is a Haitian national who has held TPS for fifteen years. He lives in
California where he works in a laboratory researching Alzheimer’s, a job he can
hold only because of his TPS work authorization. Miot suffers from Type 1
diabetes, which is easily treated in the United States. But in Haiti, the same
disease can be a death sentence, given that country’s collapsed health-care
infrastructure.”
Kagan concludes that the plaintiffs “deserve better than
today’s decision.” When the Court rules that Trump can’t rewrite the rules for
birthright citizenship, do not clap. Remember Mr. Miot, and what he will face.
Remember others with TPS, who are all here legally, with permission, performing
important work in our economy.
Shortly after the administration ended TPS,
Senator Elizabeth Warren wrote that “This mass de-legalization has left various
segments of the American workforce, from health care to construction to
hospitality, without the workers they depend on. Notably, the termination of
TPS for Haiti — scheduled for February 3, 2026 — threatens to seriously disrupt
the health care, senior care, and disability care workforce.”
Who wins here? Perhaps it’s Stephen Miller, who will gain
an estimated 1.3 million people he can tack on as statistics to support the
success of his mass deportation master plan. It’s hard to see who else these benefits. These people are not violent criminals, who the administration
promised us it would deport. These are hardworking people who are making
important contributions that benefit Americans, people who have broken no laws,
who only ask to be permitted to remain in this country so they can raise their
claims in court and have them heard.
Some decisions are wrong from the start. Like Dred
Scott, which denied former slaves' citizenship, or Korematsu,
which allowed the internment of Japanese Americans during World War II. This
case will join them in a Supreme Court walk of shame.
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We’re in this together,
Joyce Vance
