Washington A number of controversial executive acts, like President Donald Trump’s proposal to revoke the constitutionally guaranteed right to birthright citizenship, are expected to encounter opposition from courts and may be overturned by the Supreme Court.
A plan to use the Alien Enemies Act, a legislation from the 18th century, to pick up and deport certain immigrants is one of the other plans that may be legally problematic, according to legal experts. Refusing to use funds appropriated by Congress for environmental measures and attempting to re-allocate legislative funds to construct a border wall would probably also face opposition.
Numerous Trump measures are likely to be the subject of lawsuits from civil rights organizations and Democratic attorneys general. Indeed, within minutes of Trump assuming office, lawsuits were launched to challenge his intended Department of Government Efficiency.
However, many lawsuits will fail, and not all lawsuits are made equal.
This is particularly true if Trump is just rescinding President Joe Biden’s positions and government agencies are acting in accordance with the wording of the law.
Even though the Supreme Court has a conservative 6-3 majority and three Trump appointments, it is where officials from the Trump administration plan to utilize novel or unproven arguments that they are most likely to lose.
“When the Trump administration engages in unlawful activities that are legitimately contested in court, I anticipate significant opposition from the judiciary,” stated Jonathan Adler, a professor at Case Western Reserve University School of Law.
Birthright citizenship
Both conservative and liberal legal scholars have long held that the 14th Amendment of the Constitution requires birthright citizenship.
According to the amendment, “Everyone born or naturalized in the United States and subject to its jurisdiction is a citizen of the United States.”
The purpose of the post-Civil War amendment was to guarantee the citizenship of former slaves and their offspring.
Some opponents of immigration have persisted in demanding a different interpretation notwithstanding the years-long consensus on its meaning.
Trump has embraced such arguments in his executive order, concentrating on the clause in the amendment that states that anyone who are “subject to the jurisdiction” of the United States are entitled to birthright citizenship.
According to the reasoning, children born to parents who entered the nation illegally may not be granted citizenship.
The majority of legal experts, however, assert that term only applies to those who are not subject to US law, typically foreign ambassadors.
Although the Supreme Court has never made a formal decision on the matter, it did decide in United States v. Wong Kim Ark (1898) that a man born in San Francisco to Chinese parents was a citizen of the United States.
Attorney General William Tong of Connecticut declared on Monday, “We will sue imminently, and I have every confidence we will win.” He threatened to be the “first to sue” if Trump carried out his plan, he told NBC News last month.
Monday night, the American Civil Liberties Union filed its own lawsuit.
The Trump administration is requesting that the Supreme Court “defy the plain text of the 14th Amendment” and reverse precedent that has been in place for more than a century, according to Thomas Wolf, an attorney with the Brennan Center for Justice at New York University School of Law.
Trump announced a number of executive orders on immigration, so birthright citizenship is not the only issue that will go to court. The Remain in Mexico policy, which was put into effect during his first term, prohibits individuals who are applying for asylum at the southern border from entering the nation while their petitions are being reviewed.
During Trump’s first administration, the Supreme Court never issued a decision regarding the Remain in Mexico program. In 2022, it did render a ruling that permitted Biden to revoke it.
Alien Enemies Act
With his executive order that authorizes him to employ the Alien Enemies Act, which was passed as part of the Alien and Sedition Acts of 1798, Trump is in a similarly dubious legal position.
The directive instructs officials to “make operational preparations” in the event that Trump chooses to use the statute, which gives the president the authority to detain or deport foreign nationals when the US is at war. During World War II, it contributed to the incarceration of Japanese Americans.
However, as legal experts have noted, it can only be used in times of war, which may restrict Trump’s access to it. On Monday, Trump stated that he intended to use it to apprehend drug cartel members.
The Alien Enemies Act “cannot be used in our current situation” since the country is not at war, according to a Monday letter from Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School. Despite the fact that some Republicans have claimed that there is a “invasion” at the southern border, he stated that this would not be sufficient to activate the statute.
According to Somin’s email, “the two [Trump policies] most likely to be invalidated” are the Alien Enemies Act and birthright citizenship schemes.
Using federal funding
Federal funding disputes are also likely to be litigated, with unclear results.
Trump attempted to use congressionally granted military funds to assist in the construction of a wall along the southern border during his first term in office. This was due to the fact that Congress had not approved funds for the wall, which sparked a court battle over the president’s authority to allocate funds.
According to the Appropriations Clause of the Constitution, Congress possesses “the power of the purse.”
Trump plans to resurrect and intensify this battle in two ways.
In the first place, he seems prepared to fight again to complete the border wall, which may result in some of the same legal disputes as previously.
During Trump’s first administration, the Supreme Court never made a decision on whether he could reallocate funds for the wall’s construction. After Biden took office in 2021, it dropped the case it had taken up on the matter as moot.
The court did permit some of the funds to be used earlier in the case.
Refusing to spend funds that Congress has appropriated for particular uses is another of Trump’s proposals; this could be related to environmental initiatives that were authorized by the Infrastructure Investment and Jobs Act and the Inflation Reduction Act. That would lead to yet another court battle, this time over the 1974 law known as the Impoundment Control Act, which mandates that the executive branch use money that have been appropriated.