Supreme Court didnt end the birthright-citizen battle it just made it harder to resolve

When President Donald Trump’s birthright-citizenship order reached the Supreme Court, the smart money said it would lose.The question was whether the justices would take the narrow path Justice Brett Kavanaugh ultimately mapped out in his partial dissent, or constitutionalize the whole issue.They chose the latter.In Trump v.Barbara, a five-justice majority held that the 14th Amendment itself guarantees citizenship to children born here to parents here illegally or only temporarily.That result will be hailed as a vindication of the post-Civil War promise of equal citizenship.But the opinion is more sweeping than it needed to be — and, on the originalist question, less inevitable than its defenders pretend.For once, I agree with Kavanaugh’s middle-of-the-road approach.He would’ve invalidated Trump’s order because it conflicts with a 1940 federal law that was eventually folded into the Immigration and Nationality Act.That would’ve been a perfectly respectable way to say, “Mr.

President, you can’t do this on your own.If the elected branches want to revisit these rules, Congress itself has to speak.”Kavanaugh’s route wouldn’t have settled any historical debate, but it’s what courts should do when the statutory answer is relatively straightforward and the constitutional question isn’t.Reasonable originalists can disagree over whether “subject to the jurisdiction” — the key phrase in the 14th Amendment — just means being subject to American law, or a more complete allegiance tied to domicile and political membership.Anyone who says the administration’s position was a Trumpian fever dream hasn’t spent much time with the Reconstruction debates, early executive practice or Wong Kim Ark (an important but not dispositive 1898 case involving the child of resident aliens).That doesn’t mean Trump’s order was automatically valid: Executive orders aren’t amendments to the US Code, much less to the Constitution.The administration tried to...