Can Trump Undo Our Citizenship Rights? (with ACLU’s Cecilia Wang)

>> Welcome to the Oath and the Office podcast.

“I'm John Fiegel saying we've got a packed one this week.”

Redistricting, the mask comes off and there's a hood underneath.

John Roberts in the 36-unleash a wave of rapidly racist gerrymandering and attack on democracy like we've never seen.

Not to be outdone, the DOJ has a new push to start stripping citizenship and trumps attacking his own judges plus to special guests to seal you one. Legal director at the ACLU who argued the birthright citizenship case before the court.

“So let's bring in the star of our podcast, the author of the Oath and the Office Professor Cory Brechneider.”

It's good to see you, sir. >> Thanks so much, John. I look forward to this every week.

And this is really an amazing episode, one that speaks to the core of why we started this show in the first place.

“Trump's assault on birthright citizenship is a attempt to reverse the 14th Amendment first section, guaranteeing birthright citizenship.”

You're born in the United States, you're a citizen. One of his most blatant attacks on the Constitution and so to have an episode in which we're going to be joined by the person who argued the case.

And it wasn't just any argument, it really was a superb argument. You'll hear really how brilliant this person is, the ACLU weighing this amazing lawyer.

So we have a lot to talk about, of course, the attack on our voting rights and, you know, what's at stake in birthright citizenship is not just about non-citizens being denied citizenship. But also the wider issue we'll speak to about this idea that the Trump administration is actually trying to take away citizenship from those who already haven't. That is correct, that is part of the goal and we have a lot to unpack. So let's dive into it, Corey, of course, to nobody surprise as soon as the Supreme Court told the states that they can go ahead and gerrymandered their districts anyway they want, as long as it's not based, you know, on color, as long as it's not to redress historic and, yeah, as long as it's not to dress historic injustices, but just perpetuate new ones have at it.

And we have seen a feeding frenzy, particularly among the former Confederate states, Republican Party is 90% white, African-Americans vote for Democrats about 85% minimum, and it seems like Republican in this case is really a euphemism for white, so they can hide behind partisanship, but the impact is going to be the same. Tennessee is a state with a 40% black population, and majority black Memphis hasn't lost the vote, they've just lost the power of the vote, and any kind of representation, as that city has been carved into thirds by a white supermajority that's now made those votes diluted and be minority members of all white districts, so it's tricky, Corey, they, you know, some of our liberal friends say, oh, they're going back to Jim Crow, this is something more insidious and new ones, they haven't stripped them of their votes, but they have stripped them of their votes in Congress.

So we're going to see no black Congress people from the south in either party by the time this is done, are we really still watching isolated voting rights disputes, or are we witnessing the beginning of a long term minority rule system that uses courts and maps and election law to dominate? Wow, you know, we talked last week about the Louisiana case, and we've talked before about the assault on voting rights, but what we're really seeing this week, really within a few days, is why the Supreme Court, when it gives a green light to discrimination, people are going to take them up on that, and that's really the story of this week, so the Supreme Court read the 1965 voting rights act, essentially require a kind of color blindness, anytime race is taken into account.

You have to show that it's intentional discrimination that you're fighting against, if you're trying to preserve black votes, if you're trying to preserve black voting power, and what the Supreme Court is really saying is an attempt to preserve black voting power and to create districts in which actually black representatives will be elected. That's no good anymore, even though now let me just let this sink in, in 1965, there was a movement, the Civil Rights Movement, we know these images, we learned about them, some of us grew up with them, others learned about it in school, but people being beaten in many cases near death to try to get an act of very specific law, the 1965 voting right act, and in fact even radical politics, Malcolm X has speech, the balder, the bullet is about how important this law was.

People from all political vantage points, moderates, some conservatives who were worried about the problem of race, liberals, progressives, and even radicals all joined together to push for this legislation. And what happened last week was nothing less than really inviscerating it, it was about legislation to to protect black voting power that recognized that attempts to dilute the black vote in particular wouldn't be allowed, and opening ways both through legislation, but also for legislatures who wanted to make good on the demands of this law, to draw districts in a way that would preserve black voting power and that would, yes, black representatives and the court just ripped into that.

We really to eviscerate this 1965 Civil Rights Act in particular section two, and what's happened as a follow-up is that, you know, basically lawyers used to tell those who wanted to draw lines in a way that would dilute black votes, you can't do that, there's a law that prevents it.

“And now I think Republican legislative tours are hearing the opposite, go for it, you no longer restrict it, just pretend it's about party, not about race, and you can do it.”

That's it, and they are perpetuating an even more racist system, possibly the largest rollback of minority representation since reconstruction, and they're perpetuating this racism, who are really diabolically smart way by saying, racism doesn't exist.

It's not racist, we have nothing against them, we're just doing this for politics, we're not stealing the black vote.

Because we hate black people, we're stealing the black vote, because we are historically unpopular, gas is so expensive, the Epstein files are not going away, and we need to cheat to win an election. So we're not racist, we're not racist, we're just going to put a racist system in place to help us hold power at a time that we are historically unpopular, and again, we touched on this briefly last week, but look at this mentality. Race conscious college admissions to address centuries of discrimination, well, that's illegal, race conscious voting maps to remedy centuries of voter dilution, that's illegal.

But race conscious immigration crackdowns, race conscious policing, race conscious travel bounds, this court really only seems to think professor that we've got to be colorblind, only at the times when race is used to help minorities.

“And what we've witnessed with the Virginia Supreme Court is downright diabolical.”

These Republican governors who have just imposed these just empirically imposed these redistrictings, whereas California and Virginia went to the voters and said,

Republicans are doing this, we don't want to do it, should we do it to save democracy and counter their attempts to steal the house. The voters decided and then three white people, undid the votes of the majority of Virginians, and now they're going to try to redistrict and rob people of their vote. I mean, how significant was the Virginia Supreme Court decisions striking down, the voter approved redistricting system. This isn't really just a legal dispute at this point. It's representing courts just overriding democratic self-government.

“Yeah, I mean, you know, when hope was okay, we've eviscerated the 1965 voting rights act, maybe we'll leave things to the states and what this example shows is no.”

States Supreme Court just like the United States Supreme Court can undo decisions of local majorities, the same way the Supreme Court really undid. Let's just call it what it is, the decision of a national majority to enact that law, the 1965 voting rights act. I do want to, in the big picture come back to something that you said, because I want to make sure listeners of following it. I mean, it really is the case that now if you want it be involved in diluting black votes and making sure there are no black representatives in your state.

The Supreme Court is giving you a road map. It said, even though that's prevented by the 1965 civil rights act, you can't say it explicitly, but just pretend that you're doing partisanship. You're trying to maximize Republican votes and Republican seats, and then we won't say anything about it. Now here's the pernicious part just to expand on your point. Please. If you're trying to rectify a current and past system of discrimination against black voters and draw districts in a way to comply with the 1965 civil rights act demand that really non-discrimination in the vote means respecting black voting power.

If you're trying to enable black voting power, that's highly suspicious and almost certainly unless you can show that you're rectifying intentional discrimination that you have the goods, the kind of smoking gun that's very, very hard to get. Then I don't think so. You can't do it. You mentioned the travel ban. I mean, what a horrible instance. You know, Donald Trump and the travel ban case said, I want to complete in total shutdown of Muslim immigration into the United States. And then he did a little bit his lawyers did a little bit to try to cover that up. That was an example of intentional discrimination. This is just going to illustrate how hard it is to show.

The lawyers covered it up. How did they do it? They added North Korea and Venezuela, which are not Muslim majority countries.

They got rid of the preference for Christian over Muslim refugees that was in the first travel ban. They took out any marker of intentional discrimination.

And unbelievably, the court was like, oh, that's not intentional discrimination. It's just by coincidence relates to that other example ban. They're talking about before the election. And one last sentence, Trump told us repeatedly, I prefer the first travel ban. He let us know that the whole thing was a subterfusion. And the court still didn't do anything about it. In the Virginia case, you know, democracy, we tried to resolve the problem through democracy. The people voted. And here came the Virginia Supreme Court. And over road, a process that took millions of dollars. Many people were involved in the voters of Virginia spoke.

But it's certainly part of the wider story of undoing guarantees and civil rights and non-discrimination the vote.

And again, you know, they seem to think that this isn't racist because they don't have hate in their hearts. This is what systemic racism looks like because they've rigged it that there's not going to be any black Republicans in Congress either. They have rigged it so black people will still get to go vote. And maybe those votes will count for state and local elections in some areas. But in other areas, no, they have found a way to make sure that a majority black neighborhoods are now minorities in a wider white neighborhood.

And this is how the system works. They're arguing that they're defending constitutional originalism, Corey. They're defending judicial restraint.

But when courts overturn voter approved reforms, only after voters approved them. That's an important point.

They didn't come out and say before the referendum, you can't do this. They waited to see how the referendum went.

“And then they came out and said, oh, that's what you want. Well, that's wrong.”

I mean, when courts are overturning the will of the voters after the voters approved them, how should Americans interpret that Louisiana? They're throwing out votes that have already been cast so they can cheat. Yeah, their argument is that, you know, this legislation came too late. The process took too long. And some of the people who voted thought they were voting under the old scheme, not the one that had been voted into Virginia's law. And so the Supreme Court struck it down on the grounds that, you know, this was not there was unfairness.

There wasn't kind of notice that it was retroactive.

But the bottom line is, you know, in the big picture that we have the Supreme Court undoing democracy by really rewriting the 1965 civil rights act.

So it wouldn't be recognizable to anybody at the time. The idea that this is somehow based in the text is beyond foolish. You know, people thought not for white rights. Not for worries about discrimination against white people in drawing maps, which is essentially the Supreme Court is done as rewritten it to mean that. And then, you know, one common thing that you hear from conservatives too is, well, states rights states rights states rights. They're not used to say that. I'm old meant that that estate engages in a democratic process to preserve the vote.

The Supreme Court of Virginia steps in. And, you know, I don't see used to be, maybe there would have been recourse under the 1965 civil rights act that we could have brought this to the Supreme Court. I would have said federal law is a play here. But what I'm hearing from experts is, no, that Virginia is spoken. The 1965 voting rights act has largely been eviscerated and this might be the end of it. I mean, you're right. They only care about states rights when they want to be racist in some way. If the state of New York wants to have gun safety laws, they don't believe in states rights then.

Medical cannabis, some of you have seen so many areas where they don't really care about states rights. They care about their own power and they'll believe whatever they have to believe to push that over.

“So, everyone's saying, all right, how are these Democrats going to fight back? How are we going to save this democracy? How hard are they going to play hardball?”

I mean, I heard that Chuck Schumer was so angry he tore one of the tassels off of one of his loafers like that level of rage. We need more than that and there's a lot of ideas floating around. And I want to ask you about a very interesting legal theory, which is that, okay, if they're going to do this, if they're going to throw out the will of the voters, well, under Virginia's Constitution, they let the General Assembly set mandatory retirement rules for judges. So, if Democrats wanted to approach this and play it, the way Republicans do, you know, dirty but legal, they could constitutionally lower the judicial retirement age, force these judges out of work,

and then appoint all new judges and reopen the entire redistricting fight. Again, it's dirty as sin, but legally it could work. And the amount of rage on Fox News over this idea almost makes it worth it. This provides me of how FDR, when three Supreme Court judges were trying to undo the new deal, he didn't really try to pack the court. He just threatened to pack the court and those judges back down. I'm all in favor, Corey, of Democrats going for this as hard as they can, whether they do it or not.

“I think people just want to see them on the offense and say, all right, if you're going to use procedure as a weapon against democracy, we're going to try that out too.”

Well, go back to the FDR point and it's worth going into a bit of history with this. That exactly as you say, he never carried it out, but the idea was during the new deal, conservative justice is on the Supreme Court. This is going to resemble many, many ways what we're facing now. We're looking at democratically past legislation and not rewriting it in the way the court did with the 1965 voting rights act. They didn't strike it down or say it was unconstitutional. They essentially reinterpreted it until it meant nothing.

It's violating the federal constitution. There's no power in particular of the federal government to enact a new deal.

Now, America was in the Great Depression and FDR realized that this couldn't stand. They couldn't be passing his signature agenda with the support of Congress.

“And here come these unelected Supreme Court coming in and striking it down on pretty dubious legal theories, I think. I mean, longstanding, but ones that certainly since the new deal have been abandoned.”

So one thing that he did, in addition to arguing in court for the constitutionality of his own agenda, was to say, well, what if we add justices? And so the existing justices votes are so diluted. And there's nothing illegal in that. Nothing. We've had different numbers of Supreme Court justices at different points in time. And so through legislation, you could up the number, say to 30. And he getting through the, again, the legal process of nomination and confirmation, new justices.

So now as we're facing this plethora of attacks on our democracy, it's looking more and more like the crisis of the new deal. And I'm not underplaying that crisis. It was a real crisis.

So after you already didn't have to actually carry it out, scholars disagree about the reasons, but I think one reason why the Supreme Court magically changes its mind. In fact, there's something called the switch and time that saves nine, where all of a sudden the new deal goes from being struck down to being upheld.

“Go figure, partly it was about this threat, partly it was about the power of Congress, the justices just couldn't see themselves opposing a democracy in this massive sense.”

So now the question is, should we do this now too? Should we threaten to, if Democrats, of course, would have to retake both Congress and the president, we add justices. Should we play constitutional hardball? This is certainly an example. And I'm a firm yes.

I mean, now that's going to play out, whether the number is 30, whether it's doing it, you know, in a variety of different ways using impeachment.

There are a lot of legal tools to do this that also we can talk about it. I've talked about packing the court. My colleagues say, it's a phrase court reform. So I'm okay. I'll call a court reform. Whatever. I just want to read what I'm needing it. And that is a very good analogy of that point in his view. Yeah, I can't wait to interview and support and donate to candidates who are going to really bring the fight because they care more about democracy than power. Of course, a Republican president during Biden's administration, there were so many opportunities, including a moment where this was at least looked into.

I know. And much to my disappointment, Biden, you know, in so many ways really failed to make the structural reforms that we needed to our council. Because we can't be, we can't, we can't allow it to escape again. He worshiped norms and wanted to be the good guy and didn't want to do this sort of thing, which is understandable.

“But you know, I'm old enough to remember because amnesia is the most deadly airborne virus in this country.”

These Republicans decided one time to change the Supreme Court from 9 to 8 for an entire year, just to deny a black president and up or down vote on his duly appointed Supreme Court nominee. I mean, I remember how right after doing that, they rushed Amy Coney Barrett through an election after votes were already cast before Ruth Bader Ginsburg was even cold yet. All we're talking about is doing the same kind of things that Republicans keep doing over and over again, because Republicans don't respect norms and they don't respect doing the right thing.

Yeah, and for those, you know, there are a lot of objections, of course, to what we're saying, and of course there are. But they're not coming for what those people, I'm sorry, but those subjections came from people who had dick to say, when Mr. McConnell decided we could have an eight person Supreme Court for a whole year. And I point that what the objection normally says is this, the objection says, look, if we engage in court packing or court reform, whatever you want to call it, but constitutional hardball of these different kinds.

Then what's going to happen is that now, once Republicans are in power, they're going to do the same, and there's going to be, you know, 100 members of the Supreme Court or it'll just be a back and forth. I'm already there, and that moment that you're talking about with Merrick Garland's nomination and the refusal to act on it, was the destruction of the norm. And so if one group is just destroying the norms and the other group is pretending that the norms are still there, I don't think so. It's the same thing with redistricting to that California and New York, California has already moved on this, New York needs to move really need to, yes, to reshape votes.

I don't even want to call it Jerry Man. It's a way of protecting against the destruction of democracy. Thank you. It's happened on the other side. It's democratic defense. I mean, Jim Clyburn's seat in South Carolina will disappear. They are not going to try to get rid of him. He's too popular. So they're just going to make sure that the folks who vote for him have votes that don't count for anything. Then the court just allowed Alabama to pick a different map for this year's congressional elections.

Totally last minute. Again, Louisiana is throwing out thousands and thousands of votes because they don't care.

How should Americans understand what's happening in Tennessee historically?

“Well, I think Tennessee, Alabama, where, you know, there's an attempt to get the Supreme Court to intervene here on the basis of the 1965 voting rights act.”

What we're going to see in a lot of these cases is as there's an attempt to dilute black votes, black voting power. There'll be lower courts that intervene in the right way, based on the old interpretation of the 1965 civil rights act. And I shouldn't say, oh, they should say the right interpretation. Thank you. They will push back on a lot of these attempts to destroy districts that ensure black voting power.

But here's the problem. The Supreme Court, I'm almost certain, is going to come in and say that in almost all of these cases you failed to show intentional discrimination.

The breakup of these districts is about partisanship. And that's okay.

“And that's why this decision matters so much because we're seeing on the ground already, you mentioned Tennessee, in Alabama, attempts to destroy black voting power.”

We'll see lower courts, push back, and then the Supreme Court's going to say, did you not read what we did? You know, a few days ago, and that's where we are. Okay, we got to take a quick break back in just a moment. This is the oath on the office. Hey, it's Cory. If you're like me, you may need to take a break from the 24 hour news cycle to recharge and renew your mind, which is why I recommend listening to how to, with Mike Peska, the longstanding advice show and the ambinominated best personal growth podcast.

Back for a new season with the new host, how to with Mike Peska, finds answers to your most pressing questions. I'm a fan of Mike and you might recognize him from being a recent guest on the oath in the office, or from his award winning reporting, or from his role as host of the longest running daily news podcast, the gist. Each episode of how to follow security of a listener invited guests to tackle a real problem, with help from world-class experts who actually know what they're talking about. Think of it as ease dropping on someone else's therapy session, without the copay or awkward silence.

You've got questions, they find the answers. Follow how to with Mike Peska on Apple Podcasts, Spotify, or wherever you get your podcasts, and tell them I send you. There is a lot. I mean a lot going on in the news around our government and our laws, and there's one question we hear all the time. Is this constitutional? If you don't remember all the civics classes, you may have taken in school, you can get the answer to that question, and many others by listening to civics 101. The claim podcast from New Hampshire Public Radio. Civics 101 is an entertaining way to learn about how our government works, or at least how it's supposed to work, and you'll hear a lot of surprising stories along the way.

Hosted by Hannah McCarthy and Nick Capoteche, civics 101 will help you understand a bit more about what's going on, and maybe even make you a smarter citizen. You can listen to civics 101 wherever you get your podcasts, and tell them the oath in the office sent you. Welcome back to the oath in the office podcast. I'm John Fugelsign. Corey, let's talk about citizenship for just a minute. The DOJ is reportedly expanding their efforts to take citizenship away from some American citizens, because they feel like it.

“Historically, Corey, how rare is the naturalization as a political tool in this country?”

Wow, it really is a tool of authoritarianism to say if we don't like you. We're going to take not only potentially violate your rights, but violate what the Supreme Court is called the right to have rights, the right of citizenship in the first place, and not only did the court in the past, rebuke these kind of efforts in many cases. There's one that really used that phrase, the right to have rights, which is also made famous by the political philosopher Hannah Arren, and it was a case called Trump vs. Dullis, where the Supreme Court said that it was a violation of cruel and unusual punishment, the 8th Amendment, to strip away as punishment for a crime, the rights of a citizen.

Now, over time, they made an exception for that, which is that if you committed fraud in your application, the theory was, well, you never really became a citizen in the first place, so if you could show fraud in the application process, it was a narrow window. But it was not one that was widely used, and it was one that the court made very clear too. You can't just use that as your excuse for really engaging and stripping the citizenship of your enemies or people that you don't like. Yet, here we are, revisiting this, they're going to try to use this narrow exception, the supposed fraud, in order to go after, I think, a lot of naturalized citizens who they consider enemies.

They've already said, in the Khalil case that non-citizens have no first amendment rights.

Just insane. And now they're trying to say, you don't have a right to citizenship if you weren't naturalized. I mean, I mean, I don't know how to be scared about this. Do we need to start viewing citizenship? Not as a constitutional guarantee, but something conditional, something revocable.

We should view it as anything but we should view it as irrevocable, and one of the amazing things, and it's just coming up in a few minutes,

that Cecilia Wang, the legal director of the ACLU, has done, is present a beautiful argument for why the Constitution, as clear as day, says if you're born in the United States, you're a citizen. So that step one is pushing back there. Now we have to recognize there are multiple fronts. This is the second front that they've opened up against the right to be a citizen. And here we've got to say, too, using this really important case.

“Trap versus dollars. One of the most important, I think, when it comes to our rights as citizens,”

the idea that we have a right to have rights that citizenship can't be stripped away as punishment for a crime. And we've got insist on that, we've got to do it through litigation, and we've got to do it, I think through legislation. These are among the laws that need to be passed if Democrats ever retake the Congress and the presidency. Yeah, it's pretty terrifying. I thought we had safeguards against this sort of thing. Do you think they'll be successful, Corey? I mean, do you think they'll just tell people, you're not one of us anymore?

Well, I think the first test is, and we're about to talk about it, the birthright citizenship case.

And I was really heartened to listen to that case, and to hear the justices defend the Constitution. And I think this is as clear here, too, that you can't just take away somebody's citizenship because you don't agree with them. Now, they're going to look for cases in the beginning in which there might really be fraud. And in those cases, I think the administration, even though they're motive, is not, you know, just to combat fraud. They might get away with them. But as they go deeper, that's where the pushback will have to happen.

And as with birthright citizenship, they're going to try certainly to take away all of our rights. They're trying to destroy democracy. No.

“The administration, Trump is on that's what it's about.”

And we'll fight back as hard as we can. God, we live in the only country on earth to produce white trash oligarchs. We're also seeing Trump publicly attack his own hires. Amy Coney Barrett and Neil Gorsuch after rulings he dislikes. When I say his hires, I mean, you know, the Federalist Society handed him a piece of paper saying this is who you like.

But Cory, how unusual is it for a president to pressure just as it is from his own ideological cult in such personal terms. So nakedly and publicly, I mean, I think I may be heard George Bush's senior complaint about suitor once maybe. Well, it shows you how little he understands about how the constitution is supposed to work. He thinks that he appointed his judges and they're supposed to say this guy is great the same way that the sick events like Steven Miller around him say every day. And they're not saying that.

They are, I think, approving too much of his agenda of the shadow document, which we've talked about and we'll continue to talk about. But what he just saw, the Supreme Court and he walked out mid-Argiment, was these justices essentially saying you can't do that. What he talking about is the 14th Amendment says if you're born in the United States, you're a citizen full stop. And I think that really, he can't quite understand it if you're an authoritarian idea that you were people, you were judges. And, you know, even the way he talks about them kneel in Amy, you know, these are supposed to be my, my people.

They're pushing back. It shows you how little he understands about this system. When you and I met, I wrote a piece for Politico called Trump versus the Constitution of God. Right. And this is the latest iteration of Trump versus the Constitution. I mean, how much do you think about all these struggles, all these constitutional conflicts?

How much is it really, ultimately, about pluralistic democracy itself?

Who gets representation, who gets citizenship, whose votes count equally? Because these guys seem to despise the concepts of democracy while pretending to love it in much the way they despise the teaching of the New Testament while pretending to love it. Well, I think that really is when we talk about defending democracy, what you and I mean, we should use the phrase explicitly is multi-racial democracy, multi-ethnic democracy, pluralistic democracy. When Trump talks about democracy, he means a democracy where the white people are in charge.

And you see that in so many of his animals, hatred-based policies, the travel ban we mentioned earlier. And the clearest example is trying to revoke one of the places where the Congress couldn't have been clearer in its amendment. The 14th amendment, that if you're born in the United States, you are a citizen. It wasn't just a reversal of the Dred Scott case that said black Americans are not citizens in our Constitution. They're not even legal persons. It was meant to create a much broader, multi-racial democracy.

And one that means what it says when it says if you're born in the United States, full stop your citizen, we're going to apply a test, a parentage of race.

“And this president's trying to destroy it. That's why we're going to focus on this case and such depth today.”

Well, I'm excited for this guest. Let's take a quick break. We'll be back in a moment on the oath in the office. Hey, all. Clay Kershner here. Friends, I hope you'll join me on my audio podcast Justice Matters.

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“It really is an honor today to introduce to you Cecilia Wang who is the ACLU's national legal director.”

Most recently, and this is what we're going to talk to her about, she in the Supreme Court argued that Trump's executive order essentially revoking birthright citizenship was unconstitutional. And she's going to walk us through some of that argument, what it was like to participate in it. And as of course, listeners know, listening to this show, since the beginning, since we've started it, we've regarded this promise to revoke birthright citizenship as really a symbol, not just any ordinary case, but a symbol of Trump's attack on the Constitution.

So, this isn't any ordinary case, it's a historic one.

That was, I listened to it, it was an amazing argument, a historic argument one that will be taught in constitutional law.

“I think for forever, as long as we have a country, we have constitutional law, so Cecilia Wang, welcome to the oath in the office.”

Thank you so much, Corey, it's pleasure to be with you. Can we just start with the big picture we have, of course, the first section of the 14th Amendment that until this executive order many people thought was pretty plain as day. It's as if you're born in the United States that you are a citizen, full stop, and there is this phrase, of course, that we'll get into subject to the jurisdiction. But let's start with the big picture, what's really at stake with this case? So, the immediate stakes in the birthright citizenship case, of course, is whether President Trump's executive order regarding the 14th Amendment citizenship clause can go into effect.

So, he contrary to the plain words of the 14th Amendment and its historical context, as well as statute passed by Congress, who's trained exclude the children of undocumented immigrants. And people who are here in the United States lawfully, but on a temporary visa, temporary sometimes meaning years, from being covered by the 14th Amendment's guarantee of birthright citizenship. So, those are the immediate stakes. Can President Trump carry out his revisionist view of the 14th Amendment citizenship clause through an executive order that purports to reinterpret the 14th Amendment in a way that's contrary to what both, you know,

the Congress and the Supreme Court and all of us ordinary Americans have thought, you know, it's been almost 160 years since the 14th Amendment was ratified. So, those are the immediate stakes, but to take a step back and look at an even bigger picture, what's really at stake is whether the President of the United States can redefine and narrow our national tradition. The condition of birthright citizenship can the President decide that there are people that he disfavors should be excluded, should not have a sense of belonging in our national community.

And those are kind of the larger stakes. And if we take even another step back to look at the really bigger picture that, you know, President Trump came into a second term, really on day one, trying to undo the work of reconstruction, which includes the citizenship clause of the 14th Amendment.

Also, so many aspects and progressive laws that were enacted and implemented as part of the second reconstruction with the civil rights movement and Jim Crow.

And so those are all the stakes from the narrowest view to the broader view. Yeah, I love that you laid it out that way because, of course, the immediate question is about whether this specific executive order is constitutional or not, but the wider question, of course, is what's going on with the President that wants to revoke a symbol of the idea of equality under law and the very symbol of multi-racial and multi-ethnic democracy. Well, it's because it's part of a wider assault on democracy. It doesn't believe in, I think, the idea of multi-racial democracy, not only that you and I believe in, but that the crafters of this 14th Amendment with its birthright citizenship clause, it's guaranteed also a equal protection of the law fought so hard for.

What was it like to argue this case with the President of the United States with Donald Trump sitting right there, I think it was historically the only time that a President showed up and he showed up to hear what you had to say.

“So what was that like? Well, candidly, Corey, I didn't know whether he was in the courtroom or not. We had gotten notice the night before, of course, when he posted, I guess on social media, that he was planning to attend.”

We got to advance notice because we needed to arrive at the court earlier than usual because of the increased security around the President being in the house. And so I knew that he might be there, but even as I was walking into the courtroom, the information I was getting from the clerk's office was that they weren't sure 100% sure that the President would be there. So I didn't notice one where the other, I was very focused on the nine justices. I was focused on my opposing counsel and what he was saying.

And so it didn't affect me one where the other that he was in the room. I didn't find out until later that he was in fact in the room, at least for the first few minutes.

I mean, I mean, one of the signs of your effectiveness is that he evidently walked out made argument and also has recently as I think you know, been talking about why in his words, Neil and Amy have not really been loyal enough them, which I think might have something to do with watching them respond to your arguments in a sympathetic way. I want to ask you about the dynamics in the courtroom, but I also want to ask about the specifics because of course the Trump administration had to come up with a reason why he could essentially undo this guarantee of birthright citizenship and the court and Trump himself, you know, claims to care about the constitutional tax.

So they turned to this idea of subject to the jurisdiction. So tell us about how that argument works and how it relates in particular the related idea that the 14th Amendment birthright citizenship clause was really only about black Americans and a reversal of the dread Scott case and not the broader guarantee that you and I have been talking about and they offer this idea of also related of allegiance.

“So tell us about what their argument is and how he respond to it.”

Yeah. So, you know, as a lawyer, you always want to start the words in the case of the 14th Amendment. So the 14th Amendment says all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States.

And so the only leeway in that text that the president, you know, tried to explore take advantage of was of course that phrase subject to the jurisdiction which you just referred to.

So you start with a text and then you look to two sources to figure out what those words meant to the framers to the Republican drafting committee that wrote the words of the 14th Amendment.

“And we know two things. The first is that the framers of the 14th Amendment wanted to have broad birthright citizenship for almost everyone in the United States.”

But they wanted to encompass these pre-existing historical exceptions to birthright citizenship. And that was what they meant by those words subject to the jurisdiction.

That ambassadors, right, you know, foreign ministers, you know, representatives of foreign government, when they're in the United States have immunity. And that's a matter of comedy between the two, not comedy like ha ha, but COM, ITNY, that, you know, these two countries as a matter of mutual respect and in order to be able to do diplomacy, give each other this immunity from prosecution. The ambassador in the United States is treated as if they're physically still in their home country. And so the children of ambassadors were excluded from birthright citizenship under that phrase subject to the jurisdiction thereof. There were a number of other exceptions that originated in the English common law, including the ambassador exception, which the framers wanted to carry over.

The only exception to birthright citizenship that didn't come from the English common law that the framers were trying to carry over after the 14th Amendment was ratified was an exception for members of Native American tribes known as Indian tribes in the technical legal term. So that was it subject to the jurisdiction thereof in the citizenship clause simply meant that everyone born in the United States, who is subject to the jurisdiction of the United States, meaning they have to obey the laws and they have a protection of the laws of the United States is a citizen. And the only exceptions were these narrow categories like ambassadors and under the constitution members of tribal nations.

I mean, I have to say from the beginning, I've been wondering how are they going to create an argument so that the thing that we've all seen with our own eyes, how can they turn it into something that makes this an even plausible executive order? It seems to just clashed directly with the meaning of the constitution and its tax, so they're relying heavily on this idea of subject to the jurisdiction. I guess one thing that I don't know if I want to say it's a full argument resembled an argument is that, well, there wasn't this idea of undocumented people in the 19th century that the immigration systems were just so different.

“If you think of the principle that applied here, that these exceptions and the meaning of who the amendment refers to wouldn't apply to the children of undocumented people.”

So that raises some interesting puzzles about how to think about facts that are different in the 19th century from now, how to think about history and texts.

So tell us how did you handle that and how did you read the justices who, of course, you know, I would say a majority or so heavily focused on the idea that the law is the text. Yeah, so, you know, what you're referring to is kind of, you know, there are two broad schools of thought when it comes to the interpretation of our constitution. And the prevailing one for a majority of the Supreme Court currently is an originalist school of thought, which says, when we're interpreting the words of the constitution, we need to pay attention only to what the framers of those words, whether it's in 1789.

Or in 1868, in the case of the 14th Amendment, what they were thinking, what was the original public meaning that was understood. And, you know, the other school of thought, of course, is what, you know, might be referred to as living constitutionalism. So, you know, the idea that, you know, the framers were in thinking about all possible future applications of their words necessarily.

“And that we do our best to interpret, you know, what the spirit behind those words was.”

As I said, the original school of thought is the prevailing one of the Supreme Court now, and sometimes that creates some real problems of constitutional interpretation.

But not when it comes to the citizenship clause of the 14th Amendment. And we set out a purely originalist interpretation that I just laid out for you and your listeners that the Republican committee that was drafting the 14th Amendment. And indeed, all the members of Congress who debated the words of the citizenship clause were all in agreement that the only exceptions were ambassadors, tribal members, and the other very, very narrow exceptions.

“And it applied to a couple of people at most under the English common law.”

And that would include people born on foreign ships, you know, that were docked in a US port, for example.

And so it was interesting, you know, as I was preparing the little side here, as I was preparing for the argument, you know, lawyers do these practice sessions we call a moots. I had a Supreme Court, a member of this Supreme Court bar, so when he's, you know, very experienced Supreme Court practitioner who said, this is a really weird case because you have the ACLU, making an originalist argument. And you have the solicitor general of the United States talking about policy. And so, you know, I bristle a little bit at the idea that ACLU is normally making policy arguments.

We're making a textualist and original meaning arguments all the time. But in this case, there's just no question that that is what the framers and the state legislators who ratified the 14th Amendment understood the words to me. Now, to get to another part of your question, you know, what is the Trump administration trying to do here and what is their move to try to go against. What everybody has understood about the meaning of the 14th Amendment since 1868 and certainly since 1898. And you know, what they did was they started with a Supreme Court decision from 1898 called Wong Kim Ark, which was the first case in which the US government was trying to exclude the US foreign child of a foreign national from US citizenship.

And this was a case where the Supreme Court held in 1898 that this man, Wong Kim Ark, board in San Francisco to parents who were Chinese nationals was US citizen. And the Trump administration basically used to move that has been tried out previously by a number of people in the far right who are, you know, anti immigrant activists, you know, throughout the last few decades.

And the move that they make is that in the Wong Kim Ark decision, the Supreme Court Justice Gray writing majority opinion happens to mention several times by the government's count 22 times in all in a very long opinion that Wong Kim Ark's parents were domiciled in the United States.

“And so the Trump administration basically has used a move that has been tried unsuccessfully.”

And the past to try to reverse engineer an argument from that happen stance in the Wong Kim Ark decision to say, "Oh, that means you have to, your parents have to have been domiciled in the United States at the time of your birth for you to be a citizen under the 14th Amendment." And so that kind of explains how the President structured his executive order, at least in part, because the one thing that he can't explain still is how he can exclude children born in the US to an authorized immigrants who are domiciled in the United States, right?

And many people, millions of people in this country who over state of visa or who entered without inspection, but have lived in the US and have these strong ties and have no other home in many cases for decades in many cases since they were young children themselves.

So that basically is how we got to the President's theory of the 14th Amendment.

Yeah, that they looked at Wong Kim Ark, which is, of course, about the idea of the plain meaning of the birthright citizenship guarantee that if you're born in the United States, you're a citizen, of course, applies beyond black Americans. And yet they try to use it in a way to say that, no, in that specific case, the facts were that the person had allegiance, Wong Kim Ark had allegiance to the United States because of the fact that he was domiciled here. Let's get into the argument. I mean, it's fascinating. I have to say, too, just giving us those notes and I think people want to hear more about it that coming into this, you thought, wow, I don't always get to argue straight originalism to use the theory of justice,

and justice barrage, and at least supposedly, justice is a Lito and Thomas, but here it just screams out that we have the text, and as you've been telling us, we have this amazing case that says, yes, this is not just about reversing Dred Scott and Dred Scott's evil, holding the black Americans don't have citizenship under the Constitution or even legal personhood, it goes way beyond that, to mean what it says.

“So, you know, born in the United States, you are a citizen, so tell us what it was like as you are arguing the case with this preparation. I mean, did you feel like the originalist arguments were clear?”

Did you feel resistance in places that you were surprised by?

So, you know, I think we went into this argument very confident in our arguments, not only because, you know, we had written a brief that reflected, as you said, the plain words of the 14th Amendment, and also, you know, the English common law context for American citizenship, right, which the Supreme Court explained in the One Kimark decision in 1898. But we also had confidence because we had such a broad array of friend of the court briefs that were submitted on our side, including very conservative legal scholars and lawyers who, you know, all joined forces to say, look, the original public meaning of the 14th Amendment is really clear.

The other thing that gave me a lot of confidence, and really, not just confidence, but I felt Corey, like, I was channeling the voices of millions of Americans who, like me, are 14th Amendment citizens born when our parents weren't yet naturalized, and our ancestors, you know, most Americans, unless you're a descendant from someone who was enslaved, person of African origin, or if you are descended from people, or if you're an indigenous American,

all of us have some ancestor at some point in our family's history, who's been in the situation.

And I really felt that I was standing there at the lectern in the Supreme Court, channeling all of those voices of people living and our ancestors to really stand up for that original public meaning of the 14th Amendment.

“You know, you've mentioned a few times that the president, I think in a really cynical move that's meant to try to divide people says, look, 14th Amendment citizenship was only for black Americans.”

And there was a really wonderful Amika Spray, front of the court brief, filed by the historian Martha Jones, who's written the definitive history of black Americans, free black Americans, struggles for birthright citizenship, both before and in the wake of the judge's cot decision.

They wanted universal birthright citizenship.

“And those efforts by black Americans fed into the radical Republicans who framed the 14th Amendment.”

You know, there's nothing in the words of the 14th Amendment that say, this is just to give citizenship to black Americans and to overturn transcott. If that was what the framers of the 14th Amendment meant, they would have written very different words. And the beauty of the 14th Amendment and the first sentence of it, the citizenship clause, as a reconstruction document, you know, after first abolishing slavery, 13th Amendment, then you get to the 14th Amendment. I started out by wanting to provide for equal rights for all people in the United States, but then they added the sentence at the beginning that dealt with citizenship. And it was centrally about completing the project a free black Americans who were fighting for universal birthright citizenship.

There was so much history, such a rich history, behind this argument in those amicus briefs, not only Professor Jones's historical brief, but a really lovely brief filed by Professor Tyler Ambinder and Professor Garrett apps, which I actually referred to during the argument when, you know, Justice Lido was asking, you know, well,

“the framers of the 14th Amendment in 1866, as they were writing those words, there was no such thing as an undocumented immigrant at that point, because Congress only enacted restrictions on immigration a few years later, the first one was in 1875.”

So, you know, it can't be that the 14th Amendment encompasses the children of undocumented immigrants, and there are many responses to that based on the history. First and foremost, there was a debate about the citizenship clause, where senators, you know, were all acknowledging that the children of immigrants would be citizens under this language. And there were those senators who opposed that and said, we don't want the children of people they called gypsies, Roma or Chinese immigrants. We don't want their children to become US citizens, and that's exactly what these words do.

And then you saw other senators, including really movingly, Senator John Kanes, who was an Irish immigrant himself, Senator of California, who responded directly to the views of the opponents of the 14th Amendment, saying, yes, the children of so-called gypsies, the children of Chinese immigrants, much as they are reviled right now and a disfavored minority in my home state of California. They're children are all going to be citizens, and that's exactly why I'm voting for this amendment. And there's all that rich history. You have the brief that I started to mention that, and by their ex-brief, also talked about the fact that in right before, then the 10 to 15 years before the 14th Amendment was framed in 1866.

“There were millions of Irish immigrants who came to the United States because of the famine in Ireland, and the No Nothing Party, which was ascended in the 1850s in Congress, you know, was just virulently xenophobic and anti-Irish anti-Catholic.”

And they believed that these Irish Catholic, impoverished immigrants were un-simulable. The No Nothing Party members felt that these Irish Catholic immigrants were less than human. And yet even though No Nothing Party believed that the US board, they didn't want to go get a part.

Even the No Nothing Party didn't want to go as far as Trump. That's an amazing detail.

Exactly. And so there was such a rich history about the movement of free black Americans for universal birthright citizenship and the experience of Irish Catholic immigrants. And the experience that incredibly moving colloquy between Senator Cowan of Pennsylvania, who opposed birthright citizenship, and Senator John Connais of California, who spoke as an immigrant himself saying, "This is the beauty of birthright citizenship."

All of that, you know, I was trying to channel all of that while standing there in front of the Supreme Court.

It's an amazing moment in American history. And, you know, as I listened to it, I was thinking, you know, teaching the 19th century teaching reconstruction, that this is an amazing drama because what's happening is you have an administration trying to essentially destroy the result of a war. We're trying to create the idea of equal protection that everybody born in the United States as a citizen. Of course, this one case is part of as we were talking about in the beginning, the wider fight for what Frederick Douglass long called equal protection and the words that make it into also the 14th Amendment for a section equal protection under the law.

You hear that you were channeling thinking about this history because in a way you weren't just championing all of us. You were championing these long ago heroes fighting for democracy and fighting for multi-racial democracy specifically. And, you know, so often the Trump administration brings up the people who lost that fight, the violent races. I love the idea that even the known that it's understood that the next generation, you couldn't discriminate there, come on people and Trump has gone too far. So, what an amazing firsthand account of really living history, I guess, is what I would call it. That's what you were doing and channeling these voices.

“And, you know, often when we talk about the text, it can sound very technical, very semantic, but what you brought out, I think, in this conversation, is the text is there for a reason.”

And this text, in particular, the 14th Amendment for a section, is a realization, not just a symbol, but an encapsulation of the fight for multi-racial democracy and literally on the heels of the most violent conflict in American history.

So, what an amazing thing for our listeners to hear that that was in your mind, as you were doing it. Many of us would be thinking, "Oh no, are my notes in the right order?"

I'll believe me. I was thinking that too.

“Can I ask Cecilia, what an amazing discussion, but I just, as we reach the end of this amazing discussion, wanted to ask you about, of course, to me anyway, this looks like a great moment.”

Where this Supreme Court is about to rebuke the president of the United States with his really racist and anti-democratic executive order.

But I just invite you to talk about where you see the, of course, as the legal director of the National ACLU, you're thinking strategically about how to stop all of these attacks on our democracy. So, how does this fight fit in? And what are you thinking about when it comes to the wider assaults on democracy? If you wanted to, we've been talking for instance about the DOJ trying to revoke citizenship of naturalized people, the next step, and they're in war on democracy.

“But really, any thoughts about this wider assault on democracy and what is you as legal director are in the midst of doing in this fight?”

Yeah, I would say, you know, this actually happens to be a tough moment, you and I are talking the day after the Supreme Court issued an order that vacated an injunction that we won through litigation against racially discriminatory congressional district map in the state of Alabama. We'd won the case in the lower federal court, and then won in the Supreme Court three years ago. And then, of course, a couple weeks ago, the Supreme Court issued a decision in Louisiana congressional redistricting case.

So, we're on with LDF called Louisiana versus Calay and really undermined and gutted the section two of the voting rights act, you know, the crown jewel of the civil rights era legislation passed by Congress in 1965 in order to give voters a tool to go into court and fight against race discrimination and voting laws. And, you know, immediately over the next couple of weeks since the Calay decision came down, including last night, the ACLU and LDF and other partners around the country, but particularly in the south, have had to rush into court, I literally have lost count of how many emergency applications we filed in the last couple weeks.

And in some cases, you know, with the Supreme Court last night issuing this order that changes the rules when voting is already underway in Alabama in the primary election that where election day is may 19th and people are doing early voting right now under the map that now has been vacated by the Supreme Court. And so, there's a lot coming at us, you know, the goal, so, of course, is currently considering, again, the state of Louisiana's effort to block people's access to Mr. Pristo and medication abortion nationwide, right?

You know, I want to just say that those efforts have really borne fruit. The ACLU has filed, I think, the count currently is at 184 lawsuits. We have filed since inauguration day last year.

And in cases that have already been closed, we've got about a 62% success rate. And in the cases that we're still fighting, you know, we're winning many of those battles and getting real relief from federal courts for people who are harmed by this administration's policies.

“But that's just one piece of the story. People in these states that are now fighting for democracy after the Supreme Court's decision in Louisiana versus Cali, you know, are packing state houses.”

Louisiana voters, you know, packed the state house in Baton Rouge a few days ago in order to express their views that we want to be able to vote and have our votes count equally with everyone else's regardless of our race. We want you the legislature of Louisiana to enact a fair map that gives black Louisiana voters the same weight as white Louisiana voters. People are marching in Tennessee, we're just as we file a lawsuit and a application for emergency relief from the federal court. Thousands and thousands of Tennesseans are marching in the streets to say, we are fighting for the life of our democracy in the United States right now. And, you know, in addition to filing all those lawsuits, the ACLU has trained 87,000 people in zoom meetings about their rights to protest, you know, what we can do to sustain our democracy and the rule of law and equality under the constitution.

“There's so many places where Americans are making a difference, whether it's lobbying your city government to enact”

Procival rights and procival liberties legislation or taking a streets to protest what the president is doing. There's so many things that we're all doing in this moment of real challenges of real struggles.

We're at feels like the federal government, the executive branch is trying to push us backwards and undo reconstruction and undo the civil rights within.

Yeah, so well said. And, you know, I think it's also a sobering but importantly honest place to end, which is as great a moment as this was before the Supreme Court to have the president sitting there as essentially the justices through their questions and through their analysis and through your arguments. We're reviewing him and his white supremacy and his attack on our democracy as great a moment as that is in the end right. It has to be a multifaceted strategy that we're using to stop this because when it comes to the court's decision in the 1965 voting rights act interpretation.

In the Louisiana cases, you say it's doing the opposite of respecting the text. It's really undoing what was also a monumental second reconstruction of fight for our democracy and taking a law that took a mass movement to create and undoing it. And we've been covering that on the oath in the office alongside your important argument in the birthright citizenship case. And I guess as we wrap up what I'm hearing you say and I know of course the ACLU has a multifaceted way of defending democracy. But that litigation is part of it and that can inspire what is also a fundamental part which is citizens rising up defending our own rights and in various strategies using politics and democracy to defend democracy.

And using stories using history, using arts using comedy, COMD, why this time to tell a story about not just what the constitution says, but you know the country that we are hoping to build towards and always trying to do better and to, you know, ensure that freedom and equality are lived reality for everyone.

What a great place to end, Cecilia Wang. Thank you for your efforts. Thank you for your amazing argument before the Supreme Court. And thank you for your words about history.

The way that our historic fight for democracy inspires our current fight. That's really been a pleasure to have you on the oath in the office. Thank you for joining us. Thank you, Corey. Thank you for all your work.

“I want to thank Cecilia Wang for coming in and being so brilliant and professor. I want to thank you for talking me off a ledge. What is the best way for our listeners to follow you, Corey, and keep up with your work?”

Well, we have the oath in the office. Substack. We have all over. You can review us. Be sure to subscribe wherever you're listening to us right now. You can watch us on YouTube.

It's first section guaranteeing that anyone born in this country is a citizen. It really was a special episode.

“Amen. And I want to thank everyone who puts the show together, especially Beowulf and Wendy, and I want to thank you, professor, as always.”

You guys can hear me every night on Syria, sex, and progress, or in the mornings on the John Figelsign podcast, and my books called Separation of Church and Hate.

Professor, thank you so much. I'm a pleasure John.

We will see you guys next time on the oath and the office.