Conservative Supreme Court Justice Clarence Thomas has previously spoken favorably of the citizenship clause of the U.S Constitution.
The clause is the basis for birthright citizenship, which President Donald Trump is challenging in the Supreme Court.
Why It Matters
The right of anyone born in the U.S. to claim American citizenship has been a fundamental right for over 100 years.
If the Supreme Court’s conservative majority strikes down that right, it will allow the Trump administration to deport the children of illegal immigrants.
Newsweek sought email comment from Justice Thomas’ office on Friday.
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What To Know
On the day he was inaugurated for a second term, Trump signed an executive order directing government agencies to no longer issue citizenship documentation to babies born in the U.S. without at least one parent being a U.S citizen or a permanent resident.
Immigration groups and Democratic-leaning states immediately launched a series of lawsuits.
On March 13, the Trump administration launched a series of emergency appeals to the Supreme Court for a partial stay on court rulings blocking his birthright citizenship order, arguing that the judges have misapplied the 14th amendment of the U.S. Constitution.
The Supreme Court’s 6-3 conservative majority will have to be convinced that the 14th amendment, which guarantees citizenship to anyone born in the U.S, does not apply to the children of illegal immigrants.
Clarence Thomas, the most conservative of the Supreme Court justices, considered the 14th amendment’s citizenship clause in the 2022 case of U.S v. Vaello-Madero.
In it, Thomas agreed with the majority that Supplemental Security Income benefits are not available to the residents of Puerto Rico because they were not born in the U.S.
He wrote that the citizenship clause of the 14th amendment has ended the wrongs of the Supreme Court’s 1857 decision in Dred Scott, in which the court ruled that slaves could never be citizens, even if they were born in the U.S and moved to non-slave states.
“Once incorporated into the Fourteenth Amendment, the Citizenship Clause ‘forever closed the door on Dred Scott,'” he wrote, quoting from the 2014 book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship.
He also noted Justice Bradley’s opinion in the 1873 Slaughter-House Case: “If a man be denied full equality before the law, he is denied one of the essential rights of citizenship as a citizen of the United States.”
Thomas went on to favorably mention Justice Harlan’s 1896 dissent in Plessy v. Ferguson, in which Harlan objected to segregated train carriages.
“Harlan’s famous declaration underscores the connection between citizenship and equality: ‘Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law’,” Thomas wrote.
That would seem to suggest that Thomas has a firm belief that the 14th amendment’s citizenship clause should apply to all people born in the United States, regardless of race or status.
What People Are Saying
Greg Germain, a law professor at Syracuse University in New York, sees room for Thomas and other conservative judges to rule in Trump’s favor, because the 14th amendment was written to correct the wrongful treatment of black people in America, rather than address the status of illegal immigrants and their children.
Germain said that Trump’s lawyers will have to focus on the second phrase of the citizenship clause, arguing that children born in the US to illegal aliens are not “subject to the jurisdiction” of the United States.
“That seems like a question that will ultimately have to be decided by the Supreme Court. Trump can argue that the phrase about being ‘subject to the jurisdiction’ must have meaning, and should be read as a limitation on birthright citizenship,” Germain told Newsweek.
“The Supreme Court will have to decide whether children of illegal or temporary residents qualify, and whether an interpretation by executive order rather than statute is effective. “
“If I were to guess, I think the Supreme Court would uphold [Trump’s] order for illegal aliens,” he said.
What Happens Next
The Supreme Court will likely hold a hearing within days.
As this is an emergency appeal, it will be handled on an expedited basis, with no oral argument and only limited room for filing documents.
After issuing a brief decision, which would likely not be signed by any Supreme Court judge, the court would likely then move towards a full hearing with oral arguments so that it can decide the issue in full.
