The following is a lightly edited transcript of the July 1 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR Network. I’m your host, Greg Sargent.
Donald Trump lost a big one when the Supreme Court upheld birthright citizenship in a blockbuster ruling on Tuesday. But the way the ruling came down strongly suggests we’re heading into a much longer battle over this going forward. In that regard, MAGA’s furious reaction to the ruling was deeply unnerving. As many pointed out on social media, getting rid of birthright citizenship is going to become akin to Roe v. Wade for the right, especially the MAGA right. How should liberals and Democrats proceed?
We’re talking about all of it with Raul Pinto, deputy legal director at the American Immigration Council. Raul, good to have you on.
Raul Pinto: Thanks, Greg. Good to be on. Quite a day.
Sargent: So the Supreme Court ruled by six to three against Trump’s executive order ending automatic citizenship for anyone born on U.S. soil. Five justices upheld the Fourteenth Amendment guarantee of birthright citizenship. Brett Kavanaugh voted with them, but not on the constitutional argument—he effectively said Congress can theoretically change this with legislation. So only five justices are with us on the constitutional argument. Good, but not good enough. Raul, what’s your immediate reaction to how this happened?
Pinto: Yeah, I would put it as a five-four decision, because it’s a razor-thin margin, right? And as you’re saying, five justices actually said that this was enshrined in the Constitution, that birthright citizenship is actually part of the Fourteenth Amendment. And it’s very discouraging to see that four other justices didn’t agree with that, and that at the end of the day, we may have to battle this again.
Sargent: So Trump and MAGA absolutely exploded in rage over this. Trump said that Congress can now act to end birthright citizenship, which is false, since five justices say it’s protected by the Constitution. But I want to read what MAGA personality Matt Walsh said:
“Now that SCOTUS has opened the floodgates for foreign invaders to flock across our borders and spawn, the only choice we have is to triple down on immigration enforcement, militarize the border, mass deportations, round every illegal up. Don’t pull back when the lesbian activists start screeching about it. Use whatever force is necessary.”
Whatever force is necessary—Raul, that’s a straight-up threat of mass violence, is it not?
Pinto: Yeah. And I do think that the concept of birthright citizenship as established in the Constitution—it’s historical. The decision today was based on historical principles and how the Fourteenth Amendment came about. And so I do find that those views are very extreme, and hopefully cooler heads prevail. But we know that that hasn’t always been the case—i.e., January 6.
Sargent: Right. I think Matt Walsh is essentially saying pretty explicitly that MAGA doesn’t give a shit about the Constitution, and especially the Fourteenth Amendment. They really have special disdain for the Fourteenth Amendment for all sorts of reasons. He’s essentially saying, screw the Constitution, let’s just use mass violence to, quote-unquote, protect the country against invaders.
Pinto: It’s sad that it’s being approached in this particular way. The decision today is rooted in historical precedent as to how the Fourteenth Amendment was drafted, as well as trying to correct some of America’s darkest periods, like the Dred Scott decision. It allowed—the descendants of slaves to become U.S. citizens, as well as Wong Kim Ark, the decision which allowed a descendant of Chinese immigrants to become a U.S. citizen as well.
Sargent: Well, here’s Stephen Miller:
“One of the most destructive and outrageous decisions in the long history of the Supreme Court. American citizenship is not the birthright of the world. It belongs only and solely to Americans. No provision of the Constitution can be read to require our national self-obliteration.”
Let’s talk about how deranged that is. Immigrants are not obliterating us. He treats that as a given. It’s complete fantasy. How does he think people become Americans? He personally is descended from people who immigrated here and were attacked with very similar language.
But, Raul, most important, I think this sets the stage for drastic action. Remember, Miller was already urging Trump to defy the courts if this situation is tantamount to national self-destruction. Surely Miller will expect Trump to do that here, yes?
Pinto: I don’t want to get into Stephen Miller’s head. I really don’t. But what I can say, right, is that immigrants are definitely not ruining the United States. And as a matter of fact, birthright citizenship was still a thing in the first Trump administration and the world didn’t end. And immigrant contributions continued throughout the darkest periods of the administration and beyond.
And so one of the interesting things that it’s important to know is the impact that this decision has on those children that would have been targeted by the executive order. It would have created a second-class system for them.
They wouldn’t have been eligible for Social Security numbers, passports, or any proof that they actually belong to a certain nation. And that’s also something that’s addressed by Justice Roberts.
Sargent: And it’s really good that he addressed that. Because I think at bottom, what MAGA really wants is that two-tiered system. They really want to end the Constitution’s guarantee of equality. That to them is really the big kahuna—ending equality. They want a hierarchical system.
What they want is a large subpool of stateless and rightless people that they can target with state violence. I think that’s the essence of this. And I think it’s good that Justice Roberts made it clear that that was off the table.
Pinto: It is why I think it’s important that the court today said that it is a constitutional right. And as you’re saying, that comes with certain weaknesses. And yes, it was a flimsy majority, but we do have decades of precedent that would have to be overturned for that to happen. I’m still worried. But today’s decision was important, and I think it was positive.
Sargent: One of the core tactics that this administration is using, that MAGA is using to try to ethnically cleanse the country, is to use whatever legal lever they can to make life fundamentally unlivable for immigrants. What they were really hoping for was to be able to create this new second-class caste that could then be subjected to all sorts of maltreatment and discrimination, and wouldn’t have any legal protections of pretty much any kind. Let’s listen to MAGA personality Tim Pool.
Tim Pool (voiceover): Kagan, Sotomayor, Ketanji Brown Jackson—we know exactly what they think, and they want to burn this country to the ground. Unfortunately, Trump won’t make the moves needed, Congress won’t make the moves needed, and Republicans should pack the court right now. Thirteen federal district circuits, thirteen Supreme Court justices. And Trump can add a good old four more conservative court members, which guarantees we will never lose another ruling again. But he won’t. So I can only say this: without men of action, your nation be damned. We do not have men of action.
Sargent: Note how he says they want to burn the country down—meaning you and me want to burn the country down, because we want to uphold birthright citizenship as a constitutional mechanism. And note how he says only men of action can save us. He’s basically saying we need Caesar, isn’t he?
Pinto: It’s such a dog whistle, right? But it is also extremely important to point out that many of the children of immigrants who would have been subject to the executive order—America is all they’re going to know as a home. And they are going to be rooting for the U.S. in the World Cup and part of the social fabric of this country.
And so I find it troubling that that is the rhetoric that happens on the other side, because they can become as patriotic as you and I and uphold those American values that we hold here.
Sargent: Right. America is the only country that many of these kids are ever going to know.
Pinto: Absolutely. Absolutely. And not only that, but ending birthright citizenship would have again left them without a real home, despite the fact that their parents may have been in the country for a long period of time. The Fourteenth Amendment is very clear. And Justice Roberts says, we are grounding this decision on the Constitution. And that’s important.
Sargent: Yes, it was really important that he said that. I just want to return to something that you said earlier, which really resonated with me, which is that Donald Trump has actually succeeded in, quote-unquote, securing the border. He’s used a lot of tactics that I think are obviously heinous and indefensible. But what’s interesting to me is that MAGA can’t even accept that as a victory.
Trump constantly says he’s reduced border crossings to zero or whatever—that’s a bit of an exaggeration, but it’s true that he’s gotten them way down. And MAGA can’t say to themselves, well, we won on that, we got what we wanted, because they need to feel like they’re being invaded by immigrants at all times.
And here’s why. Their movement isn’t actually just about securing the border. It’s about ethnically cleansing the country. They want mass removals. They want to roll back the demographic evolution of this country and reverse-engineer it in some sense. And that’s why they can’t accept Trump securing the border as a victory, because it doesn’t count as ethnic cleansing, which is the thing they really want.
Pinto: Well, you also have to remember that this decision comes on the heels of two other immigration decisions that went in the Trump administration’s way. One of them limited access to asylum at the border, and the other allows the Trump administration to end temporary protected status for hundreds of thousands of people.
So the general rhetoric that the world is going to end because we have birthright citizenship is just incorrect. Or that this court is by any means sort of favorable to immigrants because of a birthright citizenship decision that is actually rooted in the Constitution—that’s just incorrect.
Sargent: Right. They can’t even accept the ending of TPS in effect as a victory, and the ending of asylum in effect as a victory. They want those things, but they don’t constitute the dramatic mass removals, the enormous ethnic purging that they really want. I think that’s the essence of this.
Pinto: Yeah. And I would say that, exactly what you’re saying—if you’re ending birthright citizenship, there are thousands of children who would have been undocumented and potentially subject to immigration enforcement with their family members. And so that is obviously problematic, because now you’re expanding the universe of folks who would be subject to removal.
Sargent: That’s exactly what they want to do. So let’s just close this out. What do Democrats and liberals do now? I mean, if you look at this situation, it’s now clear that this is going to take on the cast of a major cause—something like targeting Roe v. Wade the way the right did for decades. They are clearly going to set in their sights the ending of birthright citizenship. Do you think that that’s a major thing that we should take seriously, and how should we proceed?
Pinto: Yeah, as we said at the top, it’s concerning that the margin of victory was that small. I do think that precedent and history is on our side, and it will be going forward. But obviously we are concerned, and there are concerns with that.
I would say that ending birthright citizenship is not popular among the American population. Most Americans support birthright citizenship. So I take some solace in that. I take some solace in the fact that Justice Roberts, who sided with the majority on the other cases that went the other way on immigration—I would say that if he’s able to think through this issue and see it as a constitutional matter, I think that’s important. And if precedent continues to be important to the U.S. Supreme Court, then we will continue to get good rulings on this issue.
That doesn’t mean that we won’t see attempts to try to do this through legislative action. But it is a constitutional issue now. Granted, I will give you the fact that there could be a different interpretation and someone can come in and agree with the other four judges.
But it is important, then, for that majority of individuals who is in favor of keeping birthright citizenship for children born on U.S. soil, that we are expressing those views to Congress so that that doesn’t happen. Because I do think that at the end of the day, Americans are not going to stand for that.
Sargent: I’m going to choose to be optimistic about this as well. We won today, and that’s a big deal. Raul Pinto, great to talk to you. Thanks for coming on.
Pinto: Likewise, Greg. Thank you.