The Road Not Taken in Trump v. Barbara

My brief essay, “The Road Not Taken in Trump v. Barbara,” is now online as part of a Harvard Journal of Law & Public Policy Per Curiam symposium, “The Future of Birthright Citizenship: What’s Next After Trump v. Barbara.”

My essay begins:

It is a “well-established principle” that the Supreme Court “will not decide a constitutional question if there is some other ground upon which to dispose of the case.” This principle was nowhere to be found in Chief Justice Roberts’s opinion for the Court in Trump v. Barbara. It may be the Court’s “usual practice” to resolve cases on statutory grounds so as to “avoid the unnecessary resolution of constitutional questions.” In Barbara, however, the statutory question received no attention in the Chief Justice’s opinion. Nor did it attract meaningful engagement from any of the dissents. Justice Kavanaugh was the only Justice to take the statutory arguments seriously, and he found them dispositive.

Resolving Barbara on statutory grounds would have allowed the Court to avoid the larger Constitutional question. It might also have provided a basis for broader agreement among the Justices. While there is a heated debate as to the original public meaning of the Fourteenth Amendment’s Citizenship Clause, the meaning of Section 1401 at the time it was adopted is more readily resolved. It is well-established—if not universally observed—that the Court should “interpret statutory terms to ‘mean what they conveyed to reasonable people at the time they were written.” As the Court reaffirmed in Loper Bright Enterprises v. Raimondo, “every statute’s meaning is fixed at the time of enactment.”

A PDF of the full essay is here.

Other contributors to the symposium posted thus far include Gene Hamilton, Eric Wessan, Steven J. Menashi & Elias Neibart. There is also a debate between John Yoo and Linda Denno.