Once again, President Trump has shown that he may be the only one in Washington with an instinct for strategy. In fact, he seems to be the only one in town who understands how Washington actually works and how to think past one news cycle.
Consider a question that has been much in the news lately: Does the U.S. Constitution guarantee birthright citizenship to children born of mothers who are in the United States illegally?
It’s a tough question. Most constitutional scholars seem to believe that the answer is yes. A not-insignificant number of their colleagues disagree. Any fair reading of their arguments should lead to an honest answer: Probably, but we don’t really know.
How can we find out? There’s only one answer: We need the Supreme Court. In the American constitutional system, the Supreme Court has final say. Until it issues a ruling, no set of scholarly beliefs about the constitution can be considered definitive.
How can we get the Supreme Court to issue such a ruling? There’s only one way. It’s called a “case or controversy.”
There are countries in which the Chief Executive can call the Constitutional Court to ask for an advisory opinion. The United States is not among them. There is no mechanism allowing the president to call the Chief Justice and say: “I’m thinking about an Executive Order limiting birthright citizenship. Got any thoughts on the issue?” In fact, if the Supreme Court replied to such a request, it would provoke a constitutional crisis. Their answer would not be binding, and any Justice who participated in the answer would be recused from ever hearing a related case.
No, the only way for President Trump to get the question answered is by provoking a “controversy” that leads to a specific “case.” With an actual dispute flowing through the courts, the Supreme Court can actually address the issue.
President Trump understands this dynamic. For some reason, his many critics do not.
Follow the simple logic. What will happen after President Trump issues his Executive Order? The first baby born to an illegal alien will have a team of lawyers standing by to fly into court. They will obtain an immediate emergency injunction. Could anyone doubt this outcome? Could anyone believe that the president expects a different outcome? President Trump knows his Executive Order would be lucky to remain in effect for 48 hours before being enjoined.
Then it will go to an appellate court — likely the Ninth Circuit — that the newborn’s lawyers chose as a matter of strategy. Again, President Trump, like everyone else, expects the injunction to stand. That paves the way for a government appeal to the Supreme Court. If the Supreme Court declines to hear the case, no problem! The president will issue a modified Executive Order. The process will play itself out again. And again and again until the Supreme Court rules.
Then what? One of two outcomes is possible. The Supreme Court might rule that birthright citizenship is indeed comprehensive, and that it extends to anyone and everyone born on American soil independent of the legality or other status of the mother. Fair enough. In that case, the situation will return precisely to where it is today, pre-Executive Order, albeit with a greater amount of certainty.
The other outcome is a Supreme Court ruling that some limitations or exclusions to birthright citizenship are possible. Such a ruling — any such ruling — would move the allowable restrictions into the realm of public policy debate. Even a ruling that strikes all Executive Orders and announces that only Congress could enact such limitations would serve that purpose.
President Trump understands that our national debate over immigration is far from over. We need new policies, new laws, and new enforcement measures. When it comes to negotiating a solution — a way forward, out of our current impasse — the more options on the table, the greater the negotiating flexibility.
From the perspective of those eager to reform our immigration laws in ways that deter future illegal entry and promote legal entry, anything that makes illegal status less attractive is helpful. President Trump, most Republicans, and even some Democrats fall into that group. At the moment, between those who favor birthright citizenship for illegals on policy grounds and those who consider it a bad idea, but a constitutional guarantee, the issue is a non-starter. President Trump is taking the only possible path towards adding it to the ideas in the hopper.
The Trump Presidency has been a phenomenal success because President Trump understands the system. It’s a pity that so many who have spent their entire lives inside it do not.
Bruce Abramson is the President of Informationism, Inc., Vice President and Director of Policy at the Iron Dome Alliance, and a Senior Fellow at the London Center for Policy Research. Jeff Ballabon is CEO of B2 Strategic, a Senior Fellow at the American Conservative Union's Center for Statesmanship and Diplomacy, and an advisor to Donald J. Trump for President, Inc. To read more of their reports — Click Here Now.
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