The case for impeaching four Supreme Court justices over birthright citizenship

For 40 years in the constitutional law classes I teach at Tennessee State University, I have asked all my students to raise their hand if they are a citizen of the United States. 

Usually, after some hesitation, everyone or almost everyone raises their hand and I promptly challenge them, ”prove it to me.” Since we do not have membership cards for U.S. citizenship, after thought and discussion, students usually say “I have a birth certificate.” 

Of course they don’t really have one with them, putting them at risk in these days of Immigration and Customs Enforcement, ICE, policing the streets, but they mean they can get an official copy somewhere from someone. So my next question to them is “Where is your parents’ birth certificate? And when you figure that out, what about your grandparents and great grandparents?” 

Is a break in documentation in an earlier generation enough of a problem to deny your citizenship? Possibly ‘yes’ under the Trump executive order which four Supreme Court justices want to enforce.

In Trump v. Barbara, the Supreme Court ruled five to four that an executive order President Donald Trump issued on the first day of his second term limiting who can become a citizen of the United States violates the 14th Amendment of our Constitution. The one-vote margin is a shameful and embarrassing reflection of the intellectual failures of four of the justices and a clear example why many American citizens hold the Court in such low repute. 

Other than the naturalization route, becoming a citizen in our nation happens at birth, depending on our parents. Generally, if they, or at least the mother, is in the U.S. when she gives birth, the baby is an American citizen. The 14th Amendment of our Constitution declares the law:  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…” 

This is not confusing, difficult, or challenging language. We can all read it and understand it. You do not need a Ph.D. It simply states that everyone born here is a citizen if they are subject to the laws in this country. The many immigrants that Trump wants to bash with his executive order are clearly subject to U.S. laws as illustrated by the daily arrests and imprisonments by ICE and other law enforcement agencies.  

So the four Supreme dissenters do not even try to argue otherwise. Instead they make a convoluted and fractured argument that the 14th Amendment language of “subject to” means your parents had a fixed and permanent location (domicile) in the U.S. and the intention of remaining here. Trump asserts that any immigrant parents and their children can be denied citizenship if they did not intend to stay permanently in the country. 

US Supreme Court upholds birthright citizenship, rejecting Trump order

How do Trump and his ICE troops divine that intention? They don’t: they just assume it (which raises yet another 14th Amendment problem of lack of proof and lack of a hearing).

But the Supreme Court analysis by the four dissenters — Justices Samuel Alito, Clarence Thomas, Neil Gorsuch plus Brett Kavanaugh, the latter of whom voted with the majority while claiming the majority was wrong about the 14th Amendment meaning, is even worse.

There is no limit, no mention in any of the text, of any requirement related to domicile or lack of intent to stay which is the entire basis for the primary dissent by the losing justices. They seem to think it proper and lawful to express an opinion that the 14th Amendment citizenship clause should contain a limitation related to the domicile of the baby’s parents and their intent to remain, but in fact there is no such reference. 

Their entire argument is not stated, not reflected, not found in the 14th Amendment defining citizenship. So much for justices relying on the text and what the Constitution actually states. I guess in their next opinion, Alito and company will renounce strict construction, originalism and textuality that they and their ilk have used as an attack weapon against liberal Justices for decades.This flagrant political reading by the dissenters should be grounds for impeachment and removal. 

Tennessee attorney general joins legal fight against automatic birthright citizenship

Imagine our country as conceived by Trump and these four justices. Half the country committed treason from 1861 to 1865 and were restored to citizenship by acts of Congress after the Civil War, but what about their children and their children’s children? Would they be saved by the 14th Amendment? Yes, according to the majority opinion in Trump v. Barbara, but not according to the four dissenters unless they can prove they intended to stay in the Union. 

What about the Pilgrims, Puritans, Quakers, Catholics, Protestants and Jews who fled to this country to escape religious persecution? What about the Spanish, Dutch, French, Swedish, English, Irish, Scots, Germans, Chinese, Japanese, Hispanics, Asians, Africans, Muslims and so many others coming here for work and new lives? Were they and their children committed to staying on a permanent basis, thus establishing domicile? 

Probably not: They were seeking political, religious and economic freedom and would stay only if they found it. What about descendants of the prisoners who made up much of the early Georgia colony? Did they intend to permanently stay? What about the formerly enslaved persons, freed in the 1860s by the 13th Amendment? Were they domiciled? Were they intending to stay or had they intended to escape their criminal assault, kidnapping and enslavement? Because they so clearly intended, and deserved, to flee and escape, they would not qualify as citizens under the legal fictions espoused by the four justices.

This dreamed up (trumped up?) prerequisite of domicile for citizenship is nothing but a massive political fiction with no basis in constitutional law. Trump only appears to want as citizens those people who look and think and feel like he does, and Alito, Thomas, Gorsuch and Kavanaugh have fallen in line.

Despite our many faults, failures and foulups, everyone would probably like to live in the United States and be a citizen of the greatest nation in the history of the world. We are fortunate that immigration has helped make our country great. 

Are all immigrants wonderful and nice people? Probably about the same percentage as all the folks who live in your neighborhood and your city because, after all, everyone in your community is an immigrant or descendant of immigrants. We should embrace and celebrate our American land of opportunity, freedom and law, including our legal right to have our representatives in Congress vote to impeach Justices Thomas, Alito, Gorsuch and Kavanaugh as lacking the integrity and judgment that are required in order for them to continue to function in their office.