IdeaLog
Will SCOTUS uphold the rule of law?
Posted on May 13, 2025
Right now, the federal judicial system is keeping our government from sliding into a dictatorship, but just barely. With six aggressively right-wing Justices, the Supreme Court will side with Trump as much as it can. But will they protect the fundamental rule of law? Two cases will probably tell us.
Of those six Justices, John Roberts is the most likely to defend the law, with Clarence Thomas and Samuel Alito almost sure to side with authoritarianism. That leaves Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett as swing votes.
Because nearly everything Trump has done is illegal, there are the hundreds of Trump cases in the federal court system. There would be hundreds or thousands more if lawyers believed that the courts would ultimately uphold federal law. Lawyers aren’t sure what the six right-wingers will do, but these two cases will tell us a lot.
(1) Birthright citizenship
Trump signed an executive order purporting to reverse birthright citizenship, that is, the rule that almost everyone born in the U.S. is automatically a citizen. This case has an oral argument before SCOTUS on May 15 which, technically, isn’t about the merits of Trump’s order. Rather, it’s about whether or when a federal district court can issue a nationwide injunction. And yet, it will be impossible to discuss the nationwide injunctions without talking about the merits of the underlying case. And this is a case where Trump has no reasonable argument at all.
The 14th Amendment says:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
What does “and subject to the jurisdiction thereof” mean? The Supreme Court already decided that in the 1898 case of United States v. Wong Kim Ark. Wong Kim Ark was born in San Francisco to parents who were Chinese citizens. When he returned from a trip to China, he was denied entry on the assertion that he was not a U.S. citizen. SCOTUS ruled that a U.S. born ethnic Chinese person would only be not “subject to the jurisdiction thereof” if his parents were “employed in any diplomatic or official capacity under the Emperor of China.” Since his parents were not diplomats, Wong Kim Ark was a U.S. citizen under the 14th Amendment. In short, birthright citizenship was conclusively decided 127 years ago and no court has ever disagreed with the Wong Kim Ark ruling.
Senior Judge John Coughenour, an appointee of Ronald Reagan, presiding over one of the cases now before the Supreme Court, said:
“I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is. This [Trump’s executive order] is a blatantly unconstitutional order.”
If the Supreme Court now sides with Trump against the 14th Amendment’s clear directive on birthright citizenship, then we should expect the worst from this Court. Such a ruling would telegraph that SCOTUS is in the bag for Trump, that we cannot expect the Court to defend the most obvious rule of law. We will be inches away from dictatorship.
(2) Alien Enemies Act
The Trump Administration is arresting Central Americans and flying them to a concentration camp in El Salvador on the pretext that such a thing is allowed by the Alien Enemies Act of 1798. The Act says:
Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.
So, the Alien Enemies Act can only be invoked if “there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government…” Obviously, there is no declared war and no “foreign nation or government” is threatening to invade the U.S.
Trump’s transparently absurd argument is that Venezuela controls a criminal gang, Tren de Aragua, which he claims commits crimes in the U.S. Even if Venezuela controlled Tren de Aragua, that simply does not constitute an “invasion or predatory incursion” under the Alien Enemies Act. But, in addition to that, our country’s own intelligence agencies have determined that Venezuela does not control Tren de Aragua.
The Supreme Court already ruled on a small part of this case, ordering that detainees must be given due process rights. SCOTUS did not rule on the underlying issue—that the Alien Enemies Act simply does not apply. Three lower federal courts have ruled against Trump’s use of the Alien Enemies Act.
If SCOTUS ultimately agrees with Trump’s use of the Alien Enemies Act, it would be an endorsement of authoritarianism. It is a disgrace upon the Roberts-led Supreme Court that we don’t actually know what they will do.