(Photo
by
Jabin
Botsford
/The
Washington
Post
via
Getty
Images)
Yesterday,
in
his
first
day
back
in
office,
Donald
Trump
made
a
pass
at
rewriting
the
Constitution
via
executive
order.
Of
course,
that’s
not
how
any
of
this
works,
and
the
American
Civil
Liberties
Union
has
already
filed
litigation
challenging
the
EO
claiming
to
end
birthright
citizenship
as
guaranteed
by
the
14th
Amendment.
As
the
Brennan
Center’s
Thomas
Wolf
makes
clear,
“Trump’s
executive
order
is
unconstitutional,
in
direct
conflict
with
the
plain
language
of
the
14th
Amendment
and
over
a
century’s
worth
of
Supreme
Court
case
law.”
It’s
also,
you
know,
an
attempt
at
legal
sleight
of
hand
to
make
the
racism
more
palatable.
Wolf
is
optimistic
about
the
integrity
of
the
14th
Amendment,
saying
Trump’s
EO
“will
be
litigated
immediately
and
its
prospects
of
surviving
those
court
fights
are
slim,
even
before
a
Supreme
Court
stacked
with
conservative
justices
and
Trump
appointees.”
He
points
to
the
130-year-old
precedent
of
United
States
v.
Wong
Kim
Ark, and
thinks
that
even
the
conservative
dominated
Supreme
Court
will
err
on
the
side
of
birthright
citizenship.
It’s
reasonable
to
wonder
whether
the
current
Supreme
Court
will
defy
Trump
on
an
issue
about
which
he
has
campaigned
so
aggressively.
It’s
undoubtedly
true
that
the
justices
have
bent
American
jurisprudence
into
novel
shapes
to
avoid
direct
conflict
with
Trump.
But
backing
birthright
citizenship
doesn’t
require
some
unprecedented
feat
of
progressive
jurisprudence.
Just
look
at
the
Fuller
Court,
which
decided
Wong
Kim
Ark.
Two
years
earlier,
it
issued
Plessy
v.
Ferguson,
one
of
the
most
notoriously
racist
rulings
in
U.S.
history.
Even
those
justices
—
who
embraced
the
two-tiered
“separate
but
equal”
regime
of
race
relations
that
ruled
the
United
States
for
generations
—
couldn’t
find
an
honest
way
around
the
14th
Amendment’s
plain
language.
This
precedent
will
loom
—
rightly
and
heavily
—
over
any
move
the
Court
makes.
But
before
SCOTUS
takes
up
the
case,
the
ACLU
is
doing
everything
it
can
to
ensure
success.
Because,
though
the
rock
solid
legal
foundation
of
birthright
citizenship
*should*
be
enough
to
end
the
inquiry
we’ve
seen
some
shockingly
obsequious
behavior
in
the
age
of
Trump.
Like,
I
dunno,
when
the
Fifth
Circuit’s
James
Ho
—
despite
previously
writing
that
it
would
take
a
constitutional
amendment
to
overturn
birthright
citizenship
—
let
Trump
and
the
rest
of
the
world
know
he
was
totally
cool
with
the
retrograde
position
of
birthright
citizenship
that
the
47th
president
is
staking
out.
What
better
way
to
avoid
ambitious
appellate
court
judges
auditioning
for
a
potential
Trump
nomination
to
the
Supreme
Court
than
to
take
your
case
to
a
circuit
—
the
only
one
in
the
nation
—
with
no
active
judges
appointed
by
Republicans?
That’s
what
the
ACLU
did
(along
with
a
coalition
of
state
Attorneys
General
in
a
subsequently
filed
lawsuit).
(Both
complaints
are
available
below.)
Now,
putting
your
lawsuit
in
the
First
Circuit,
even
without
any
active
duty
Republicans,
is
far
from
the
most
problematic
form
of
judge
shopping
that
plagues
our
judiciary.
If
the
GOP
is
particularly
infuriated
by
the
tactic,
perhaps
they’ll
reconsider
their
stance
on
the
Judicial
Conference’s
proposal
on
how
cases
implicating
a
nationwide
injunction
are
assigned.
Indeed,
if
this
question
makes
it
to
the
appellate
level
there’s
even
a
chance
they’ll
pull
a
panel
with
one
or
more
of
the
senior
status
judges
appointed
by
Republicans
in
the
circuit.
But
there
won’t
be
any
judges
low-key
interviewing
for
a
promotion
and
that
makes
it
a
lot
more
likely
the
case
is
decided
on
constitutional,
rather
than
political,
grounds.
Then
we’ll
just
have
to
cross
our
fingers
when
it
makes
it
to
the
Supreme
Court.
Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of
The
Jabot
podcast,
and
co-host
of
Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email
her
with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter
@Kathryn1 or
Mastodon
@[email protected].