David French: The Birthright Citizenship Ruling Should've Been 9-0

**Tim Miller** (0:12)
Hello, and welcome to The Bulwark Podcast. I'm your host, Tim Miller. Glad to welcome back to the show, opinion columnist for The Failing New York Times. He's also co-host of legal podcast, advisory opinion, advisory opinions. He was a JAG officer. There are a lot of opinions today, and so we've got him on the podcast. It's David French. How you doing?

**David French** (0:31)
Tim, it's great to see you. Do we have anything to talk about today?

**Tim Miller** (0:34)
Anything interesting? We have a few things. We have a few things. Like about two minutes before I got down, I got a blaring headline in The Bulwark Slack, Samuel Alito resigns, I was preparing some Martha Anne Alito jokes. She had flipped the flag upside down at her home to mark the moment, but apparently NPR just kind of fucked up. So that's good. So now we just have to go through the rulings instead.

**David French** (0:54)
All I saw was no resignation. I did not know that anything else went out like that.

**Tim Miller** (0:59)
Somebody had popped something off. It happens. You know, you get an itchy trigger finger on the publishing button. So we'll keep an eye on it as the show continues. But the news of the morning, the biggest news of the morning is that birthright citizenship is alive and well in the country. It was the 6-3 decision. They struck down Trump's EO.
6-3 was pretty notable to me. The 3 number as opposed to or 2 Gorsuch was the third dissent, but I was wondering what your takeaways are.

**David French** (1:29)
First top line takeaway is, thank the Lord, this is over. What a ridiculous diversion to try to change.
Centuries of American law and precedent, because of your malice against immigrants. I'm glad the Supreme Court ended this thing. I'm glad that's over. I am surprised by the 3 I wouldn't have been surprised if it was 7-2 after oral argument. I am a little surprised that Gorsuch joined in this. So I'm surprised by how narrow the margin was. It was more of a 5-1-3. Kavanaugh was concurring in part and dissenting in part. But bottom line, 6-3.

**Tim Miller** (2:08)
Yeah, I'm just on Kavanaugh. This is all coming in quick. But it seems like he basically said that the law Congress passed in the 1950s is the reason why birthright citizenship is still allowed and that Congress could overturn that law if they wanted to. So it wasn't on constitutional grounds. Is that right?

**David French** (2:27)
Right. So the 14th Amendment says in its text that it empowers Congress to pass laws to facilitate the enforcement.
And so, yeah, the bottom line is Donald Trump 6-3, Donald Trump could not do it. You had five very solid votes for the idea that, look, this is just the Constitution. The Constitution says, and then you have Kavanaugh, the statute says. And so all of this is sort of like weird, real time digesting. There might be something at the end of this, Tim, where somebody says they NPR-ed it. They said something that they shouldn't have said about and interpreting. But we're trying to, you know, we're in real time trying to figure this out. But the bottom line is, it's gone, it's dead. The Trump EO is gone, it's dead. Birthright citizenship is still the law of the land.
I don't see any reasonable prospect for it not being the law of the land. Anytime in the near to medium term future, this debate is settled for now. And thank the Lord.

**Tim Miller** (3:26)
Well, good. In time for America 250 too. We can wave our little American flags and know that...

**David French** (3:31)
Isn't it great we're not fundamentally changing American citizenship to be more exclusive on America 250?

**Tim Miller** (3:37)
It is great. It is great. It's not that great that the president of the United States wanted to fundamentally change the nature of American citizenship to make it more exclusive on America 250, but the fact that he failed, in some ways it's poignant, honestly.

**David French** (3:50)
Half full. We're in a half full, glass half full podcast.

**Tim Miller** (3:54)
All right. Well, we'll see how that goes. This is not a new one. We have a couple other cases from yesterday and today I want to get to, but I just want to throw this in the immigration bucket, which was the TPS ruling last week, which I've been waiting to get your take on. Always when they analyze the Supreme Court cases, you have to separate inside yourself, what are your feelings about the actual law and actual ruling and feelings about the policy itself, because sometimes those are in conflict. On the policy itself, I'm just so outraged by it. It's so tragic. It's insane. The idea that somebody that came to this country under temporary protective status has been working, had kids here, goes to church, is a good member of their community, and now, who knows, they can be worried that federal agents are going to knock on their door and send them back to a failed state. It's crazy, just on a practical level. On the legal side of it, and I know you and I agree on that, on the legal side of it, this is more your expertise, but I was seeing some interesting analysis of this last week about basically the court saying that this is outside of their purview.