Immigration law wins for Trump do not necessarily suggest a citizenship victory

Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices.

The Justice Department will soon be back before the Supreme Court defending President Donald Trump’s birthright citizenship policy. The Trump administration has won most of the lawsuits over immigration matters that have reached the court, as well as last summer’s face-off touching on birthright citizenship. But unlike the citizenship policy’s first trip to the court, which focused on federal judges’ power to block presidential directives nationwide, Trump v. Barbara, scheduled for argument on April 1, directly addresses the legality of Trump’s executive order limiting who is treated as a U.S. citizen at birth. And the administration’s string of victories on immigration doesn’t necessarily smooth the path for success this time around because Barbara isn’t about immigration law at all, but it is about citizenship law. Historically, the court has been much less willing to let the president do what he likes when it comes to setting the terms of citizenship.

Creating and implementing immigration law is well within the federal government’s authority. The court has long given the executive branch, working with Congress, remarkable flexibility to determine who can enter the United States and under what conditions. Drawn from cases stretching back to the late 19th century, a principle known as the plenary power doctrine gives the president and Congress power to regulate immigration with little judicial oversight. As the court explained in an 1892 decision involving a young Japanese woman stopped from entering the United States through the port of San Francisco, the president, acting to enforce a law enacted by Congress, is authorized “to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”

The administration’s remarkable streak of victories at the court includes a variety of Trump’s most prominent immigration policies. Last summer, for example, the justices sided with the Department of Homeland Security’s decision to revoke parole, a legal permission to enter and remain in the United States used frequently by the Biden administration, from approximately half a million citizens of Cuba, Haiti, Nicaragua, and Venezuela. Similarly, the justices allowed DHS to revoke a different form of legal permission, known as Temporary Protected Status, from Venezuelans. The justices also permitted DHS to deport migrants to countries where they do not hold citizenship or have any other tie.

And even cases in which the administration lost came with a silver lining. When the justices stopped DHS from deporting people under the 18th century Alien Enemies Act, the court merely demanded the immigration officials give people more than 24 hours’ notice. Other times, defeats over immigration policies didn’t involve immigration law at all. When the court announced that Trump could not federalize National Guard troops to deploy them to Chicago in order to enforce immigration laws, it based its decision on a section of federal law that applies to the armed forces.

Citizenship and immigration are often tied together in politics, but, in law, citizenship isn’t immigration. “Congress regularly makes rules that would be unacceptable if applied to citizens,” the court wrote in a 1977 case. Congress can alter “[w]hatever license” migrants “may have obtained” to enter and live in the United States, but citizenship “is regarded as the highest hope of civilized men,” according to the court. Unlike the rules that apply to migrants, citizenship is simply too important to allow politicians to tinker with it so easily. “The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship,” the court wrote in 1967.

Given its importance, the court has shown much less deference to the executive’s prerogatives when it comes to citizenship than when it comes to immigration law. In 1988, the court turned down an attempt by the federal government to strip a man of U.S. citizenship despite claims that he had lied on his naturalization application and failed to admit his role in the Nazi-era murder of 2,000 civilians in Eastern Europe, mostly Jews. In an opinion by Justice Antonin Scalia, the court set a high bar for the government’s attempts to take away citizenship on the basis that it was obtained illegally through false statements. More recently, during the first Trump administration, the Justice Department argued for a broad view of a federal law allowing prosecutors to convict people for making false statements during the process of applying for citizenship. It didn’t manage to convince a single justice.

Perhaps the most important reason that the court’s deference to Trump’s immigration policies likely won’t affect its view of his birthright citizenship policy is that citizenship at birth is uniquely grounded in the Constitution. The 14th Amendment, added after the Civil War as part of the Reconstruction era’s legal project of reunifying and rebuilding the tattered nation, leaves no doubt that birthright citizenship is sacrosanct. Migration, by contrast, explicitly appears just once in the Constitution in a reference to slavery: The Constitution’s migration clause guaranteed that states could continue the “Migration or Importation” of people until 1808. Instead of a constitutional foundation, immigration law was created by Congress or executive branch agencies. And the labyrinthine patchwork of immigration laws and regulations created by them bears little relationship to birthright citizenship, which was added to the Constitution precisely to avoid politicians’ shifting wishes.

It’s tempting to imagine the Trump administration’s string of immigration victories at the Supreme Court as the pathway that it will ride to a successful fight over birthright citizenship, but the legal differences between immigration law and citizenship law should be too fundamental to fall for that temptation.