Tangle - The Supreme Court’s ruling on birthright citizenship.

Starting point is 00:00:00 From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, a place we get views from across the political spectrum, some independent thinking, and a little bit of my take. I'm your host, Isaac Saul, and it's Wednesday, July 1st. I'm feeling like currently an Ivy League educated law student in the midst of SCOTUS week. we are diving in to many opinions. And today, we're covering the birthright citizenship ruling that has kind of lit the commentariat on fire. Also, in today's podcast, we're going to be talking about people lying when they answer political polls, a remarkable story about how technology is allowing a man to communicate despite his motor neuron disease and much more. And of course, it's worth saying that tonight, I'll be turning my brain off for a couple hours to chant USA, USA, USA, at my TV while pretending I understand how soccer works.

Starting point is 00:01:18 And I expect all patriots to join me in that endeavor. It's going to be a great show. I'm here with Tangle Associate Editor, Audrey Moorhead. I'm going to pass it to her for today's main topic. I'll be back for my take. Thanks, Isaac. First up, we have our quick hits. Number one, NPR mistakenly published and broadcast a report that Supreme Court Justice Samuel

Starting point is 00:01:46 Alito was retiring, then retracted the story minutes after publication. The Outlets' leadership said in a statement that the error resulted from legal affairs correspondent Nina Totenberg mishearing an announcement about retirements on the court and assuming it referred to Alito. Number two, Republican representative from New Jersey Tom Keene Jr. made his first public appearance in four months, delivering a speech on the House floor in which he said he had been diagnosed with depression and hospitalized on his doctor's recommendation. Number three, Democratic socialist candidate Melat Kuros defeated 15-time incumbent representative Diana DeGette and the Democratic primary for Colorado's first congressional district.

Starting point is 00:02:27 Number four. In a financial filing, President Trump disclosed earning $2.2 billion in 2025, including approximately $1.4 billion from his family's cryptocurrency businesses. Number five. Anthropics said the Commerce Department has lifted export controls on its stable five and mythos five artificial intelligence models, roughly three weeks after the government imposed the control over national security concerns. Good evening. The Supreme Court today gutted one of President Trump's signature policies rejecting his effort to end birthright citizenship as we know it. In attacking that 150-year-old right, the Trump administration argued it, quote,

Starting point is 00:03:15 degrades the meaning and value of American citizenship and doesn't work in a modern world where, quote, 8 billion people are one plane right away from having a child who's a U.S. citizen. But Chief Justice John Roberts rejected those arguments in a 26-page majority opinion. While Justice Samuel Alito in dissent called this one of the most important decisions in the history of the court and a serious mistake. The Supreme Court struck down President Donald Trump's executive order attempting to end birthright citizenship, ruling six to three in Trump v. Barbara that the order is unlawful. Three Republican-appointed and three Democratic-appointed justices comprise the majority,

Starting point is 00:03:56 though Justice Brett Kavanaugh dissented in part. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch each authored dissents. For context, on the first day of his second term, President Trump signed an order declaring that a child born in the U.S. is not a citizen if their father is not a U.S. citizen or permanent resident, and their mother is either in the country illegally or only there temporarily. The order was immediately challenged on the grounds that it violated the 14th Amendment's citizenship clause. The Supreme Court heard oral arguments in the case in April. Writing for the majority, Chief Justice John Roberts held that the 14th Amendment was clear in its intent

Starting point is 00:04:32 that children born in the United States to parents illegally or temporarily present in the country should still be U.S. citizens. The Amendment Citizenship Clause, he wrote, excluded the children of foreign ministers and members of 19th century Indian tribes, but no such intersovereign concerns apply to children born of parents unlawfully or temporarily present in the United States. Justice Kavanaugh filed an opinion dissenting from the majority's view that the executive order violates the 14th Amendment,

Starting point is 00:04:59 instead arguing that it was illegal under a federal law enacted in 1940 that mirrored the citizenship clause's language. However, Kavanaugh suggested that Congress could amend that law and change the definition of birthright citizenship. Justice's Alito and Thomas strongly disagreed with the decision. Alito called it a serious mistake, while Thomas said the ruling adds to the sad history of the 14th Amendment, which was designed and understood to secure equal rights for the freed blacks, but has instead been repurposed for political projects that the Reconstruction Congress did not support.

Starting point is 00:05:30 Finally, Justice Gorsuch, who also joined Thomas's dissent, wrote that the Citizenship Clause does not apply to children born to parents who are temporarily in the United States, legally or illegally. However, he suggested that children of non-citizens who intend to remain in the country should be considered citizens. Writing, is a child born here to parents who have long chosen to make this nation their permanent home not a citizen under the 14th Amendment solely because his parents' presence violates statutory law?

Starting point is 00:05:58 If those parents are not domiciled here, then where are they domiciled? Today, you'll hear perspectives on the ruling from the right and the law. left, followed by executive editor Isaac Saul's take. Let's get into it. We'll be right back after this quick break. First up, what the right is saying. The right mostly opposes the practical outcome of the ruling, though many acknowledge the majority's sound legal reasoning. Some say the decision could be a political boon for Republicans. Others argue Republicans should try to amend the 14th Amendment. National Review's editors wrote about birthright citizenship after Barbara. The court took the traditional view of this broad language in the citizenship clause that most people in the

Starting point is 00:06:55 country are subject to the jurisdiction of American law unless they are members of a sovereign Native American tribe or represent a foreign government. The Wong Kim Ark rule has the advantage of ease and clarity, and that plainly gave the court pause in unsettling it. In the specific case of parents traveling through the country, how long do they have to be here to be considered legally domiciled in the United States and what other factors would weigh in such a decision? The majority of the majority of was not persuaded that an alternative test could easily be located in the Constitution. It might have been wiser if the framers of the 14th Amendment had left the outer limits of birthright citizenship to Congress. Congress can adjust to new and changing situations and can

Starting point is 00:07:35 write detailed rules to address distinctions that the courts are ill-equipped to draw based solely on general language. Still, Congress and the President are not powerless even after Trump v. Barbara. Stricter rules could be applied to discourage and deter birth tourism. Illegal immigration of course can be stemmed with the border security and enforcement tools the president already has and is actively using. In PJ Media, Scott Pinsker explored the political upside of losing the birthright citizenship case. Weirdly, today's Supreme Court loss was a net positive for the Republican Party, at least for the 26 midterms and probably for 2028 as well. Traditionally, immigration has been President Donald Trump's top-pulling issue, although he occasionally faced pushback for going too far.

Starting point is 00:08:17 because he lost, the immigration issue is still on the table. It's counterintuitive, but there's a cost to solving a political problem. It removes the issue from the public sphere. Because we lost today, the immigration issue is still relevant, and we can still use it to drive voters to the polls. If the Supreme Court hadn't demonstrated its independence, the Democrats pledged to pack the court and contort the Constitution would no longer look like an insane overreach.

Starting point is 00:08:43 It also opens an opportunity for the GOP to tackle the immigration problem by other means. Now we can have a national debate over what it means to be an American. Is it in our national interest for pregnant immigrants to illegally enter our country, deliver an anchor baby, and then claim lifelong citizenship? Or is that a recipe for abuse, fraud, and government waste? In Fox News, Jonathan Turley said the ruling leaves conservatives with only one path. The majority found the language and history of the amendment to be clear, and relying on prior rulings dating back decades,

Starting point is 00:09:13 concluded that birth alone in this country is enough to confer citizenship, even if born to a tourist or someone briefly on our soil. It is a view that is rejected by the vast majority of countries, which rightfully view birthright citizenship as bonkers, including some which followed the practice and then rescinded it. The United States remains one of the outliers in maintaining this ill-considered practice. The matter now rests not with the court but the country. We have never truly had a national debate over the practice.

Starting point is 00:09:41 The basis and future of birthright citizenship have remained matters almost exclusively for the courts. We must now decide whether to pursue such a debate as a constitutional amendment. While Congress can pass legislation cracking down on birth tourism, there is only so much that such laws can do in questioning why particular births occurred in the United States. Next up, what the left is saying. The left supports the outcome, expressing relief that the majority upheld the established understanding of the citizenship clause.

Starting point is 00:10:19 Some criticize the conservative justices dissents as political opinions. Others worry that future births birthright citizenship challenges could still succeed. The New York Times editorial board wrote, The Supreme Court remembers its principles. The Supreme Court's decision on Tuesday to preserve birthright citizenship comes as a relief. President Trump's unilateral efforts to prevent the children of undocumented immigrants from automatically becoming citizens was plainly unconstitutional.

Starting point is 00:10:45 As the majority opinion by Chief Justice John Roberts shows, the history of the Citizenship Clause of the 14th Amendment, ratified in 1868, makes clear that subject, to the jurisdiction refers to the power of the United States to govern people within its territory. Federal and state laws do, of course, apply to the children of migrants. The majority's decision is a relief because this Supreme Court is not always willing to apply the law equally to Mr. Trump. Yes, it rightly rejected his tariffs as a usurpation of Congress's authority to tax.

Starting point is 00:11:15 But the court six Republican-appointed justices have been inappropriately deferential in a string of other cases. The birthright citizenship ruling is a reminder of what a principled constitution bound court should look like. In Bloomberg, Noah Feldman asked, how was the birthright citizenship decision this close? The bad news, and it is very bad, is that the vote in support of this position was five to four, not nine-oh. You read that right. The highest court in the United States came within a single vote of casting aside the text and history of the 14th Amendment and joining the anti-immigrant frenzy that accompanied Donald Trump to the White House nine years ago and has not yet fully abated.

Starting point is 00:11:52 Justice's Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh ride roughshod over the language of the Constitution, not to mention precedent. Their path is determined by their ideological preferences, even as they insist it is based on their constitutional respect. According to the four conservative dissenters, Congress could redefine the words subject to the jurisdiction thereof so that people not lawfully in the U.S. are excluded. Yet everyone in the United States, lawfully or otherwise, is plainly subject to the jurisdiction of the United States. All of us here are obligated to follow U.S. laws and can be punished criminally if we don't do so. These justices are supposed to take the text of the Constitution seriously. So how could they vote the way they did? Ignoring the words of the 14th Amendment and rejecting the straightforward majority opinion

Starting point is 00:12:37 that also relied on both history and precedent. In common dreams, Jordan Liz said the battle is far from over. After several disastrous Supreme Court rulings on temporary protected status, asylum entries, transgender athletes, campaign finance restrictions, and presidential firing power, it may be tempting to see this decision on birthright as a glimmer of hope. Unfortunately, there are reasons to be concerned. Kavanaugh believes that Congress could limit birthright citizenship themselves. A constitutional amendment would not be needed.

Starting point is 00:13:06 The same is arguably true for Gorsuch Thomas and Alito. If Congress were to pass legislation that codifies Trump's executive order and formally defines domicile status in a way that excludes undocumented immigrants and temporary visitors, then those four justices would likely uphold it. What we needed was a clear seven to two decision. Thomas and Alito were always going to dissent, one that acknowledged what the Constitution plainly says and what it obviously grants. As things stand, however, the Supreme Court is effectively one vote away from fundamentally changing who is entitled to U.S. citizenship and what it means to be an American.

Starting point is 00:13:40 While birthright citizenship survived today, this ruling exposes how fragile its guarantee has become. That's it for the right and left, so now I'll pass it off to Isaac for his take. All right, that is it for with the left and the right are saying, which brings us to my take. Amid all the noise, let me just remind people, the 14th Amendment's citizenship clause reads, in full, quote, 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. I did not think this was particularly complicated after oral arguments, and I don't think so now. Again, the amendment is not vague. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States

Starting point is 00:14:43 and of the state wherein they reside. Maybe you think that amendment is a bad amendment. Maybe you think it is poorly written. Maybe you think subject to the jurisdiction thereof has such force and importance that all the words around it don't mean what they say. Maybe you think Congress should pass a law or states should amend the Constitution to end birthright citizenship. But the language is right there. Yesterday, senior editor Will Kback graciously gave me some credit for rightly predicting the result of the late-ariving ballots case, while he also noted that many court watchers and left-wing writers were preemptively freaking out about the outcome, suggesting the conspiracy brain misinformed court was going to outlaw late arriving ballots. Then many of those people went

Starting point is 00:15:31 silent when the ruling went the other way. Well, today, I think it's only fair to note the reactions from many of the ascendant, post-liberal, reactionary right-wing pundits who are absolutely unraveling after the majority Republican-appointed court upheld birthright citizenship. Sean Davis, the CEO and co-founder of the influential conservative website, The Federalist, is suggesting sterilization of all foreign visitors and the disillusion of the union. Matt Walsh called the ruling evil, accused Justice Amy Coney-Barritt of being a DEI hire, and argued that the worst Supreme Court justices of all time have been women. That's just the fact.

Starting point is 00:16:14 Stephen Crowder, the popular YouTube host, who, by the way, his mom is French-Canadian and he grew up in Quebec, said, quote, Amy Coney Barrett and John Roberts just decided that little ho's sway, born to illegal Haitians in Springfield, Ohio, is just as American as you and me, end quote. Jeremy Carl, a senior fellow at the Claremont Institute, wrote, if you think it's a coincidence that the conservative justice, Roberts, with no biological children, and the justice Barrett with two Haitian adoptees, are fundamentally libs when the chips are down, you have a lot to learn about politics.

Starting point is 00:16:50 These reactions aren't just confined to formerly fringe, now mainstream pundit, either. Fox News's Brian Killiatt suggested to an agreeable Homeland Security Secretary, Mark Wayne Mullen, that we might start banning pregnant women from traveling to the U.S. Stephen Miller, the White House senior advisor, said they were taking a serious look at this idea. This was a totally predictable and completely rational ruling from a 6-3 Republican-apportion, court to call these responses from the right abnormal or unhealthy would be the understatement of the week. Frankly, I'm surprised the ruling wasn't more lopsided.

Starting point is 00:17:29 When we covered oral arguments, I predicted this decision would come down 7-2 or 8-1, and I'm having a hard time accepting that it was much closer than it should have been. For instance, on Monday, I wrote about the court's decision on two immigration cases. In one of them, Justice Alito used much of his opinions. to describe the plain English meaning of, quote, arrives in, arguing that when someone arrives in the United States, it means they are in the United States, not a port of entry standing in Mexico. Therefore, he said, the Trump administration did not have to grant asylum to migrants until they arrived in the United States because that's what the language said, and thus they could block them

Starting point is 00:18:10 from entering. I said that I agreed with this rationale because it makes sense. Yesterday, associate editor Karina Pacheco noted her support for Justice Alito's plain English interpretation of election day, not week, fortnight, or month, but day. Therefore, she and Alito concluded, elections should not go on for weeks or months. Well, what does Justice Alito think it means when the 14th Amendment says anyone born or naturalized in the United States is a citizen? What is the plain English meaning of that phrase? One might consider this answer a layup for such a staunch textualist. Yet instead, Alito focuses on, quote, careful analysis of the text of the 14th Amendment and the process that led to its adoption,

Starting point is 00:18:55 end quote, and argues that the 14th Amendment, quote, confers citizenship on only those children who at birth owe allegiance solely to this country, end quote. These are words, language, and reasoning that appear nowhere in the text. It's hard not to notice the glaring in consistency. The fact that Alito somehow arrives in a place other than the 14th Amendment's very plain language is both frustrating and alarming and makes it harder to defend him from accusations of motivated reasoning. Further, Alito and Thomas's insistence that we focus on the historical context of the 14th Amendment does not, to me, help their cause. I went over a lot of this historical precedent the first time we wrote about this case, and it is fascinating. The upshot is

Starting point is 00:19:43 that the plain language of the 14th Amendment fits cleanly within the historical record. When Congress was voting on the 14th Amendment, it had also just drafted the Civil Rights Act of 1866, which gave citizenship to, quote, all persons born in the United States and not subject to any foreign power, end quote. Amid debate about the amendment, Pennsylvania Senator Edgar Cohen, objected to the citizenship clause, fearful and might let Chinese immigrants overrun California. Senator John Conniss from California responded that the children begotten of Chinese parents in California shall be citizens, and that the Civil Rights Act had already established that the children of all parentage whatever should be regarded and treated as citizens of the United States.

Starting point is 00:20:27 Congress simply thought it was putting the idea of birthright citizenship out of reach of legislative undermining and largely intended it to do just that. or, as Chief Justice John Roberts put it, the amendments framers wanted to, quote, permanently enshrine, end quote, the idea that, quote, a child born on American soil and subject to American law was made an American citizen, end quote. Roberts rightly described the scant evidence for any revisionist reading of this history. Again, maybe you don't like this amendment or its language, but I think it's pretty clear the framers of the amendment understood the ramifications of its wording. Still, the court rules 6'3 to uphold birthright citizenship does not really capture the nuance of what just happened. In reality, justices Roberts, Sotomayor, Kagan, Barrett, and Jackson all joined the critical majority opinion. Justice Kavanaugh concurred that Trump's executive order was illegal but did not concur in the reasoning.

Starting point is 00:21:26 He argued that the order did not violate the 14th Amendment but did violate federal law and suggested Congress could amend that law or enact new legislation to make exceptions for children born in the U.S. to temporary visitors or foreign citizens. Meanwhile, Justice's Gorsuch, Thomas, and Alito all dissented but for different reasons. Thomas' dissent, which Gorsuch joined, argued that the 14th Amendment was narrowly designed

Starting point is 00:21:51 and understood to secure equal rights for freed blacks, but had been repurposed for political projects that it was not intended to address. Justice Gorsuch also offered his own dissent, explaining that he'd distinguished between temporary visitors and immigrants here illegally. He would deny birthright citizenship to the children of temporary visitors, but allow it for the children of non-citizens illegally in the country, but with intent to stay.

Starting point is 00:22:17 Gorsuch focused on the court precedent and the historical understanding of domicile, arguing that an unauthorized immigrant could be domiciled here, and thus their children would be conferred citizenship. As reasons Robbie Soab noted, that makes it more like a 7-2 decision on the issue of whether the children of immigrants here illegally are citizens and the core political lens a lot of people are viewing this case through. And in reality, it was probably 8-1 or 9-0 on that question. Both Alito and Thomas left open the idea that the children of at least some unauthorized immigrants who live here would qualify as citizens because their parents were domiciled.

Starting point is 00:22:56 In other words, there really was consensus on one of the core political questions downstream of the narrow legal question. As a matter of pure outcome, not legal debate, I actually find Gorsuch's view the most align with my own. The children of someone intentionally and obviously domiciled here, even illegally, should be citizens, while the children of someone who travels here temporarily and happens to give birth on U.S. soil

Starting point is 00:23:22 or only stays long enough to give birth, should not. Not so long ago, even stricter restrictions on birthright citizenship were mainstream among Democrats. I don't believe this is what the 14th Amendment says, but I do think it would be the best case scenario for how we address some of our modern-day immigration issues. Whether Congress or the courts can get there at a future date is an open question, but it is not the question the court resolved correctly on Tuesday. We'll be right back after this quick break. All right, that is it for my take, which brings us to your questions answered. This one is from Jennifer in Toledo, Ohio. Jennifer said, I just read about ghost students to frauding colleges, universities,

Starting point is 00:24:18 the government, and taxpayers out of millions of dollars. I don't understand how people can make money off this scheme. I thought that when people were awarded scholarships, grants, and or financially, the amount they were awarded was deducted from what they had to pay. Can you explain this? Okay, great question about a fascinating story. A recent Department of Education analysis found that the government has dispersed nearly $90 million of fraudulent student aid, including $30 million to people who were dead. In 2023, three California women were indicted for using the identities of prisoners to falsely enroll in community college and obtain student loans, defrauding the government of roughly $1 million.

Starting point is 00:24:59 These fraudsters are called ghost students. receiving federal student loans is basically a three-step process. First, prospective college students apply for aid through the free application for federal student aid or FAFSA. Future students input their financial information and their prospective schools so the government can consider their level of need. Second, after a student is accepted into a school and opts into the available federal funds, the government disperses a personalized aid package into the student's account with that school. This is true even for tuition-free community colleges since many students receive aid packages

Starting point is 00:25:36 to help with books, travel, or costs of living while enrolled. Third, the schools disperse the aid. For any package that disperses more in aid than the student's tuition costs, the school will send the aid costs to the student after a 30-day period which is meant to prevent fraud. Quote-unquote, go-students exploit vulnerabilities at each stage of the process.

Starting point is 00:25:57 First, they steal Social Security numbers from other people in order to apply for aid under false identities. Then they enroll in colleges with low or no tuition. Most colleges verify enrollment in classes after dispersing aid, and some do not require students to provide social security numbers when they register for classes. That means that fraudsters can even register and attend some classes themselves under fake identities until the schools pay them out. Then they ghost them.

Starting point is 00:26:24 In California, where community colleges are free and forbidden by law from requesting social security numbers of students, the California Community College Chancellor's estimated last spring that over one-third of all applicants were fraudulent. All right, that is it for your questions answered. I'm going to send it back to Audrey for the rest of the pod, and I'll see you guys tomorrow. Have a good one. Peace. Thanks, Isaac.

Starting point is 00:26:53 Next up, we have the under-the-radar story. Two-thirds of Americans believe people lie in political polling. Does that mean most polling is flawed because it relies on self-censored responses to politically sensitive questions? What do Americans really believe? In a recent series of polls, divided along political, ideological, racial, and economic lines, a new initiative called the Honesty Project

Starting point is 00:27:14 asked respondents for their public and private opinions on contentious issues. The polling found that Americans are privately more patriotic than they express publicly. Gen Z shows higher private support for political violence, and a majority of polled Americans privately believe other Americans are the country's greatest threat.

Starting point is 00:27:31 The overall data appears to coalesce around one common truth. Americans may be performing a certain flavor of politics and public, while harboring much more complicated and sometimes completely different beliefs in private. The free press has the story, and you can find the link in the show notes. Finally, last but not least, we have our Have a Nice Day story. Six years ago, 48-year-old Casey Harrell was diagnosed with a motor neuron disease that left him paralyzed. But through his brain computer interface, a device that was a device that was a device that

Starting point is 00:28:02 operates through microelectrodes in his brain's speech motor cortex, Harold can send texts and emails, operate a computer, and keep working in his climate advocacy position. A recent study analyzing nearly two years of Harold's home use of the device, found that he had communicated 183,060 sentences, 92% of which he labeled at least mostly accurate. Harrell said, quote, This has allowed me to keep working and earn money and insurance for my family. This is reconnecting me with the friends and family who are too shy or too afraid, to come over and not be able to understand me.

Starting point is 00:28:35 Nature has the story, and you can find the link in the show notes. That's it for today's show. If you would like to support our work, head over to readdangle.com, where you can sign up for a newsletter membership, a podcast membership, or a bundle membership that gets you a discount on both. We will be right back here tomorrow. For Isaac and everyone else on the team, this has been Associate Editor Audrey Moorhead.

Starting point is 00:28:58 Have a nice day and peace. Our executive editor and founder is me, Isaac Saul, and our executive producer is John Wall. Today's episode was edited and engineered by Dewey Thomas. Our editorial staff is led by managing editor Ari Weitzman with senior editor Will Keeback and associate editors Audrey Moorhead, Lindsay Canuth, and Bailey Saul. Music for the podcast was produced by Diet 75. To learn more about Tangle and to sign up for a membership, please visit our website at reTangle.com.

Tangle - The Supreme Court’s ruling on birthright citizenship.

There aren't comments yet for this episode. Click on any sentence in the transcript to leave a comment.