This is Brad DeLong's Grasping Reality—my attempt to make myself, and all of you out there in SubStackLand, smarter by writing where I have Value Above Replacement and shutting up where I do not… Anchor Yourself in Truth & Reality: The Supreme Court 14 1/2 Months Late to the Birthright-Citizenship PartyFor fourteen months, the Supreme Court’s conservative bloc has slow-walked the most nakedly unconstitutional move of Trump’s presidency: his attempt to erase birthright citizenship by decree. We...
For fourteen months, the Supreme Court’s conservative bloc has slow-walked the most nakedly unconstitutional move of Trump’s presidency: his attempt to erase birthright citizenship by decree. We all know that an un-corrupt Supreme Court would have waived through the nationwide injunction of Trump’s “no birthright citizenship” January 20, 2025 executive order. That’s not what the Supreme Court did. It paused for five months. Then the corrupt neofascist six issued a partial stay, ordering lower courts to narrow their individual injunctions so that they provided relief only to “each plaintiff with standing”. The ACLU was ready: by July 10, 2025 there was a certiified class of “born and unborn babies who would be deprived of their citizenship” under the EO, and an injunction against its application to them issued by Judge LaPlante to apply nationwide. The Trump administration then asks for cert-before-judgment, and the majority bites. That keeps the written appellate record “clean”: no precedential First Circuit opinion fortifying Wong Kim Ark, birthright citizenship, and tying it tightly to modern practice. That gve the Trump administration the chance to get the Supreme Court to write on a friendlier canvas, with only district‑court analysis to distinguish or bury rather than a long, well-written 1st Circuit opinion. It also gave Trump the opportunity to roll the dice on overturning birthright citizenship before the midterm elections likely show strongly how unpopular Donald Trump now is…To sum up: the corrupt neofascist majority on the Supreme Court declines to summarily bless the nationwide injunction against the EO when it could, spends a term remaking the law of remedies in Trump’s favor in CASA, and then, when the ACLU exploits the Kavanaugh-crated doctrinal gap with a class action, reaches down and pulls that case up before the only hostile appellate court in the chain can strengthen it. Meanwhile, Trump’s allies in the legal academy have been reversing their previous intellectual commitmenst and spent time frantically inventing “pseudo-originalist” just-so stories to justify making American-born children stateless. The Court’s choice to indulge this nonsense—rather than kill it on day one—is a real constitutional crisis. And thus it is today, April Fools Day, that is Supreme Court birthright-citizenship Trump v. Barbara Supreme Court oral argument day. My take: The war against birthright citizenship isn’t constitutional interpretation: it’s a disciplined project to build a serf class of people who need to be quiet and accept lowered pay or be harassed by ICE. As part of this project, the corrupt neofascist majority on the Supreme Court stalled, rewrote remedies, and handed Trump his best shot at dismantling birthright citizenship. By dragging their feet the Court opened a door for Trump to try to create facts on the ground. But the Trump administration was not disciplined enough to take advantage of them. And now it looks like—unlike NFIP v. Sibelius—the shifting political tides make a 6-3 or 5-4 overturning of birthright citizenship very unlikely. Thomas will vote for Trump because Trump is a king who can legislate by executive order and the 14th Amendment applies only to ex-slaves. Alito will vote for Trump because otherwise American-citizen Iranian sleeper agents born here will kill him in his bed. But at least three of Barrett, Kavanauh, Gorsuch, and Roberts would have to find a way to claim that not just those with diplomatic immunity but all illegal immigrants are not “subject to the jurisdiction of the United States”. And while one or two might well find such a way, it is unlikely that three will. But I could be wrong. These are crazy, corrupt people who have little fear for God or man. The first thing my feed brings to me are the malevolent, misleading, and mendacious screechings of the Trumpists Randy Barnett and Ilan Wurman:
I must say that illegal immigrants definitely do come in amity: they come here to work, to trade, to contribute, to learn, to teach. They do give obedience to and are bound by the laws. They are under the protection of and also, should they be suspected of civil or criminal tresspassor offense, subject to the jurisdiction of the United States of America. And so are their children, The Trumpy claim behind their op-ed—one that they do not dare express aloud—is that illegal immigrants have come here to steal and cheat. That is simply false. And they should be ashamed of the company that they have chosen. Dia-AI tells me that I should highlight the sharp and honorable Jamelle Bouie’s response today:
Jamelle sums up:
Step back: The purpose of Trumpian ICE deportation policy is not, in any serious economic sense, to safeguard “native” jobs or to protect public finances; it is to generate and preserve a labor force whose legal precarity can be weaponized at will. Decades of workplace immigration enforcement—from the post‑IRCA raids of the 1980s through the Swift meatpacking raids in 2006 to the new wave of large‑scale worksite operations under Trump—show a consistent pattern: the state periodically descends on workplaces, selectively terrorizes unauthorized workers, and then leaves the underlying production structure intact. Plants keep running, employers adjust their hiring channels, and the local economy quickly re‑equilibrates around a different, often more vulnerable, workforce—refugees today, visa‑holders tomorrow, always people who know that one phone call to ICE can upend their lives. The net macroeconomic effect is not an enduring increase in wages or employment for citizens; it is a shift in bargaining power away from labor and toward employers, especially in low‑wage, high‑turnover sectors like meatpacking, agriculture, construction, and services. Studies of worksite raids and deportations document how these operations destabilize communities and firms in the short run but ultimately entrench a segmented labor market in which a “deportation‑proof” workforce is prized precisely because it is easier to exploit, not harder. See, for example, recent reporting on how the 2006 Swift raids in Greeley and elsewhere led meatpackers to rebuild around ever more vulnerable refugee labor, reshaping small‑town economies and politics in the process (High Country News). This pattern is reinforced by the way the federal government allocates its enforcement resources. Over roughly the past decade, Washington has spent on the order of ten‑plus times as much on immigration enforcement as on enforcing labor standards, even though the latter is supposed to protect more than 140 million workers across nearly 11 million workplaces. Immigration enforcement agencies—CBP, ICE, and their siblings—are large, well‑funded, and politically salient; the agencies charged with policing wage theft, safety violations, and union‑busting are small, underfunded, and perennially overwhelmed. The result is an enforcement regime that makes it rational for some low-wage employers to regard immigration law as their primary personnel tool: hire people whose status is fragile, keep them compliant by credible threats of deportation, and rest easy knowing that the probability of being investigated for wage or safety violations is low. The state thus helps construct and maintain a serf‑like labor caste—often including mixed‑status families and U.S.‑citizen children—whose fear of immigration enforcement suppresses wages and deters organizing, dragging down conditions for everyone working alongside them. That is the real function of Trumpian ICE policy in the political economy of the United States; the rhetoric about sovereignty and “illegals taking jobs” is, for the most part, after‑the‑fact justification for a system that works very well for employers who prefer a frightened workforce to a free one (Economic Policy Institute). In this context, the right view of Barnett, Wurman, and company is, I think, well set-out by Ken White, over on BlueSky:
My key puzzlement: Why did the Supreme Court not nip all of this in the bud fourteen months ago? That was, literally, its primary job: to keep the government for doing the unconstitutional things that the government has been doing for a year. Was the majority’s thinking last June: “let’s push this off—maybe something will happen to create facts on the ground so that then we can rule for Trump when it comes back”? That is an ungenerous interpretation of the view of the neofascist Supreme Court majority. But that does not make it wrong. The generous interpretation is that the justices were trying to avoid detonating a political bomb while Trump was still arguably the recipient of majority support. But I do incline to the ungenerours interpretation: they were deliberately letting the clock tick to assist Trump. This Supreme Court has a history of dragging things out so that Trump can create facts on the ground that alter realities, and that may allow them to later issue pro-Trump rulings that they do not dare issue immediately. Or maybe I am a paranoid psycho. But I am just doing the normal thing economists and historians do when confronted with repeated asymmetric outcomes: infer that revealed preferences may differ from the Court’s stated ones—in this case, putting as many thumbs on the scale as they dare on Trump’s behalf. And we have:
With:
And Ken White’s view of the actual Supreme Court proceedings:
While off in the side ring of the chaos-monkey circus: Donald Trump claims that Indianapolis is a city in Minnesota, shortly after turning on Somali-Americans as “low IQ. I can generalize. They’re low IQ people. They’re bad people…” <https://bsky.app/profile/did:plc:4llrhdclvdlmmynkwsmg5tdc/post/3mihqo2kdj225?ref_src=embed>  Trump on Somali-Americans in Minnesota: "They're low IQ. I can generalize. They're low IQ people. They're bad people." (Note that moments later he claims Indianapolis is in Minnesota)  Wed, 01 Apr 2026 22:32:17 GMT View on BlueskyIn that context, I think we can see what this attempt at rewriting the law has really been about. See the birthright-citizenship fight inside a broader Trumpist project: using immigration enforcement to construct a compliant, rightless labor caste. The administration’s ICE policies are not about jobs-for-Americans or border-control. They are, rather, about creating a second-class citizen serf population that can be underpaid, ignored, and threatened with deportation at any moment—even when its members are American citizens by any sane reading of the 14th Amendment. The corrupt neofascist Supreme Court majority’s pattern of delay and indulgence is best understood as assistance to that project—but actually ruling that “not subject to the jurisdiction of the United States” applies not just those with diplomatic immunity but to all illegal immigrants—or possibly illegal immigrants plus student- and H1-visa holders plus maybe even those with green cards—is something that gets at least two but is unlikely to get five votes, even with current court membership. If reading this gets you Value Above Replacement, then become a free subscriber to this newsletter. And forward it! And if your VAR from this newsletter is in the three digits or more each year, please become a paid subscriber! I am trying to make you readers—and myself—smarter. Please tell me if I succeed, or how I fail…##anchor-yourself-in-truth-reality-the-supreme-court-14-1-2-months-late-to-the-birthright-citizenship-party |
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