In the last 48 hours, President Donald Trump has revived two issues on which the Supreme Court ruled against him at the end of this term: restricting birthright citizenship and firing Federal Reserve governors.
On Thursday, he issued two executive orders to limit the reach of the 14th Amendment’s promise that everyone born on American soil is conferred automatic citizenship. On its last day of the term, the Supreme Court rejected Trump’s previous attempt to deny citizenship to the children of people illegally or temporarily in the United States.
The categories of people Trump would exclude from birthright citizenship in the new orders is much narrower: The first targets the children of an “alien enemy,” of a foreign government employee or of a parent who committed fraud to obtain his visa. The second would prevent travel authorization to any “alien” seeking to enter the United States for the purpose of “birth tourism,” a greatly ginned-up moral panic on the right centered on inflated networks of people funneling pregnant women into the United States briefly so they can give birth.
The second order seems to stem directly from the right’s reaction to the Supreme Court’s June ruling in Trump v. Barbara, the birthright citizenship case. Rep. Andy Ogles (R-TN), who just lost his primary, proposed new legislation to ban pregnant foreigners from entering the United States, an idea popular among his political allies. Federalist CEO Sean Davis went so far as to suggest that all female foreigners be banned from the U.S., or, alternatively, that foreign visitors be sterilized upon entry.
Some parts of the orders just rehash laws that already exist — it’s currently illegal to commit fraud while obtaining a visa — and some seem legally fantastical — any kind of ban on pregnant tourists in particular would be inherently discriminatory.
But Trump and his anti-immigrant zealot of a Deputy White House Chief of Staff Stephen Miller have been seething about the Barbara decision since it was handed down. The new executive orders keep their favorite issue in the news, and have the added bonus of potentially vexing Chief Justice John Roberts, should they come before the Court.
In news that broke Friday, Trump has also resurrected his crusade to fire Fed Governor Lisa Cook, a Democratic appointee, a mission the Supreme Court kept the door open to in its June ruling. The Court allowed Cook to stay in her role while Trump’s attempt to remove her on charges of mortgage fraud proceeds, finding that she wasn’t given appropriate notice of why she was being fired, or a chance to defend herself. But Roberts was explicit that the ruling did not altogether preclude Trump’s effort to remove her for “cause,” which is legal.
“To be clear, the ultimate question of whether the President can remove Cook for cause will depend in part on the underlying facts,” he wrote. “In this opinion, we have not addressed the facts, as they have yet to be found or analyzed under the relevant legal standards.”
The majority found the government’s threshold of cause to be too low, mere pretext for removing a governor the president doesn’t like, and Cook’s too high. It settled somewhere in the ill-defined in-between.
In a letter dated August 5 and obtained by Politico, Deputy Chief of Staff Dan Scavino essentially restarted the process of firing Cook, this time giving her written notice and an opportunity to respond.
“The Supreme Court recently determined that you are entitled to notice of the allegations against you and an opportunity to respond prior to your removal,” he wrote. “The Criminal Referral and this letter set forth the allegations. This is your opportunity to respond.”
He gave her 21 days, until August 26, to make her case.
If the administration rejects her defense, as seems probable, the clash will likely end up back in court. If it gets up to the justices again, they’ll be pressed on the harder question: What amount of “cause” is enough to fire members of an agency they deemed uniquely important and necessary to insulate against at-will, political firings?
In both the executive orders and the letter, Trump is making his sentiment clear. This Court exists to help him achieve his political ends; any deviation from that supporting role will be met with public criticism and a war of attrition to wear down the right-wing holdouts into complacency.
