No, Congress Can’t Just Overrule the Supreme Court on Birthright Citizenship

President Donald Trump failed in his efforts to persuade the U.S. Supreme Court into upholding his executive order on birthright citizenship, which would have stripped that constitutional guarantee from millions of babies born on U.S. soil.

Now a Republican lawmaker is hoping to effectively overrule that Supreme Court decision with a proposed bill that would resurrect Trump’s unlawful order and place it in the federal statute books. As The Hill reports, “Indiana Republican Sen. Jim Banks on Monday introduced a bill that would codify President Trump’s Day 1 executive order reshaping the definition of birthright citizenship in the U.S.”

There’s just one problem with Banks’ scheme: Trump lost the birthright citizenship case Trump v. Barbara on constitutional grounds, which means that any federal law repeating Trump’s already rejected position would be equally unconstitutional under the very Supreme Court precedent that Banks is now hoping to evade. In other words, this proposed bill is an unconstitutional dud.

This is the kind of basic legal reasoning that elected officials should be able to understand. For example, let’s say that a Democratically controlled Congress passed a law that banned all private handgun ownership in Washington, D.C., a federal enclave that falls under congressional control. Would that law pass constitutional muster?

No, it would not. Why? Because of the Supreme Court’s 2008 decision in District of Columbia v. Heller, which struck down D.C.’s handgun ban because it violated the individual right to keep and bear arms secured by the Second Amendment to the Constitution.

Just imagine the Republican outcry that would follow if a Democratically controlled Congress tried to effectively overrule Heller by passing a gun control law that directly contradicted Heller. Those Republicans would point out—correctly—that the Supreme Court had already issued a clear and decisive ruling on the matter. Unless and until that judicial precedent is overturned by a future SCOTUS, Congress is bound to follow it. Any law that seeks to do what Heller said the Constitution does not allow the government to do would be unconstitutional under Heller. Pretty straightforward, right? This is not exactly rocket science.

Still, just to be safe, how about one more hypothetical to illustrate the point, this time centering on the First Amendment. What if a Democratically controlled Congress passed a law banning “hate speech.” Would that pass constitutional muster? Again, it would not, under all sorts of Supreme Court precedents that many Republicans would surely invoke when attacking the proposed anti-hate speech law. “If there is a bedrock principle underlying the First Amendment,” the Court said in one of those cases, Texas v. Johnson (1989), “it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” As long as such precedents stand, Congress must respect them.

The exact same thing holds true for this new Republican scheme to dodge the birthright citizenship decision. Unless and until a future SCOTUS revisits and overturns Trump v. Barbara, the president and his allies in Congress are bound to follow the Court’s ruling.

Speaking of legal concepts that elected officials ought to be able to both understand and follow, the undeclared war on Iran is seemingly back on. The Constitution places the authority “to declare War” in the hands of Congress, not the president, so the fact that Congress never actually declared this particular war makes it an unconstitutional war. I realize that’s kind of an old-fashioned, fuddy-duddy way to view presidential power nowadays, but I’m sticking to it.