The ‘Birthright Citizenship’ Case and Federalist No. 78
Does the judiciary branch remain ‘the least dangerous to the political rights of the Constitution’?
By Andrew R. Arthur on May 20, 2025
The Supreme Court heard arguments last week in Trump v. CASA, the “birthright citizenship case”. Many outlets have (quite aptly) noted the oral arguments didn’t focus on whether children born to aliens in this country derive citizenship under the 14th amendment so much as on the power of federal district court judges to issue “nationwide” or “universal injunctions” to shut down executive branch policies indefinitely. Time to take a look at one of our key founding documents, Federalist 78, penned by Alexander Hamilton and captioned “The Judicial Department”.
Executive Order 14160
On January 20, 2025 — inauguration day — President Trump issued Executive Order (EO) 14160, “Protecting the Meaning and Value of American Citizenship", which states:
It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
As I explained in analyzing that EO on January 29, “To the best of my knowledge, up until Trump issued that order, the Social Security Administration and the State Department would issue an SSN and a passport, respectively, to any person with proof that he or she was born in the United States.”
https://cis.org/Arthur/Birthright-Citizenship-Case-and-Federalist-No-78
