O'Connor & Company

Kurt Schlichter on 'Blue Flame' and the Constitutional Birthright Battle

10 min
Apr 2, 2026about 2 months ago
Listen to Episode
Summary

Kurt Schlichter, senior columnist at Town Hall and retired Army colonel/lawyer, discusses the Supreme Court's birthright citizenship arguments and predicts the court will likely dodge the constitutional question by ruling against the executive order on separation of powers grounds. He also comments on the current military situation with Iran and President Trump's recent address.

Insights
  • The Supreme Court is likely to avoid the constitutional birthright citizenship question entirely by ruling on executive power limitations, which is the court's preferred approach to constitutional avoidance
  • Legal experts with 30+ years of litigation experience believe birthright citizenship will be upheld despite arguments for change, due to 150 years of precedent and courts' reluctance to make major citizenship changes
  • The 'under the jurisdiction' clause of the 14th Amendment creates genuine legal ambiguity around dual citizenship claims and practical questions about retroactive application that courts must consider
  • Conservative legal arguments against birthright citizenship face an uphill battle because they require overturning 150 years of established interpretation, which judges naturally resist despite valid constitutional arguments
  • Justice confirmation voting patterns may be influenced by desire to avoid alignment with unpopular judicial positions, creating political pressure beyond pure constitutional interpretation
Trends
Supreme Court preference for narrow rulings on executive power over broad constitutional reinterpretation in high-stakes casesGrowing tension between originalist constitutional interpretation and 150+ years of precedent in citizenship lawPractical implementation concerns (retroactive citizenship loss, dual citizenship conflicts) becoming central to judicial decision-makingPolitical considerations influencing judicial voting patterns beyond constitutional merits in high-profile casesConservative legal movement challenging post-Civil War constitutional amendments through executive action rather than legislative amendment
Topics
Birthright citizenship and 14th Amendment interpretationExecutive order authority and separation of powersSupreme Court constitutional avoidance doctrineDual citizenship and foreign government jurisdiction claimsCitizenship retroactivity and practical implementationImmigration policy and constitutional lawMilitary operations in Middle EastPresidential authority and executive powerLegal precedent vs. constitutional originalismJudicial decision-making and political considerations
Companies
Town Hall
Kurt Schlichter is a senior columnist at Town Hall, where he publishes regular columns on constitutional and politica...
Center for Immigration Studies
Mark McCrory from Center for Immigration Studies provided analysis on Supreme Court birthright citizenship arguments
People
Kurt Schlichter
Guest discussing Supreme Court birthright citizenship arguments and military operations, with 30 years litigation exp...
Mark McCrory
Provided expert analysis on Supreme Court birthright citizenship arguments and predicted congressional involvement
Ketanji Brown Jackson
Referenced for her line of questioning during birthright citizenship oral arguments and voting consistency patterns
John Roberts
Discussed as likely to reach same conclusion on birthright citizenship despite different reasoning than Justice Jackson
Donald Trump
Referenced regarding executive order on birthright citizenship and military operations against Iran
Quotes
"The birthright citizenship stuff is going to stay. That is my considered opinion, having litigated for 30 years, including current courts of appeal."
Kurt SchlichterEarly in interview
"We're conservatives. We don't do the living constitution. The constitution doesn't change when the situation changes. The constitution changes when we amend the constitution."
Kurt SchlichterMid-interview
"Simply because you have an argument doesn't mean you're going to win. The courts are naturally very, very reluctant to make major changes by themselves."
Kurt SchlichterMid-interview
"The timeline is when we're finished. We need to have a little patience. This isn't a forever war. It's not a forever war if you win it."
Kurt SchlichterDiscussing Iran military operations
Full Transcript
! Now on 105.9 FM and streaming worldwide on the WMAL app. O'Connor and company. WMAL. It's 8.36. Good morning. You're listening to O'Connor and company here on your favorite radio station. Venture to say. WMAL. It's Larry with Cassie Smedley. Cassie, Chris Plant takes over in 30 minutes. That's Hurricane. I hope that you are. Joining us right now is a senior columnist at the Mighty Town Hall. He's also an author of several books, both fiction and non-fiction. He's a retired colonel from the United States Army. And he's also a retired lawyer. So basically we can ask Kurt about, well, 80s music. Kurt Schlickter joins us. Good morning, Mr. Schlickter. Ahoy. Oh la. Ahoy. I didn't know we were going to go bilingual so quickly, but that's fine. Kurt, your quick recap of the Supreme Court argument yesterday over birthright citizenship. Earlier today, Mark McCrory and from Center for Immigration Studies said, yeah, you know, I don't think they're going to throw this thing out completely. I don't think they're going to grant President Trump's executive order. But I think they're going to say, you know, Congress can say something about it. Let Congress determine what it means to be a, you know, having a loyal to your sovereignty or under the jurisdiction of a foreign country. How do you, I don't know why you need Congress to explain what it means to have jurisdiction of a foreign country. But I guess that that might be how it shakes down. What do you think? Well, first of all, I think the Supreme Court is likely to dodge the constitutional question completely and just rule on the executive order side, basically. Well, it doesn't matter what the Constitution is. He doesn't have the power to do this as an executive order. And that allows them to avoid the constitutional issue, which is what they're supposed to. They're supposed to avoid constitutional issues when they can. If they do do the constitutional issue, sorry, guys. The birthright citizenship stuff is going to stay. That is my considered opinion, having litigated for 30 years, including current courts of appeal. Keep in mind, you know, a lot of people are very upset about that. I would prefer the birthright citizenship, not be upheld. Beyond upset, Kurt, I'm more confused than anything else because I don't quite see how you get there. It's clear that the 14th Amendment was meant to be a tandem with the 13th Amendment, which freed the slaves here in America. And of course, you had to then answer the question, well, what do you do about these people now that they're here? I mean, you say that they're citizens because they're not under the jurisdiction of a foreign country. They were born here even if they weren't granted citizenship when they were born here. We're in a very different world now. This hasn't done slavery. This has people coming here and exploiting this for various reasons. If somebody's here for a week visiting Disneyland in Anaheim and the woman goes into premature labor and gives birth, those people are not Americans. The parents aren't Americans. They were tourists. So how is the 14th Amendment suddenly going to make that baby an American citizen? Well, it's not suddenly doing anything. It's been doing that for about 150 years. That is the current understanding of the 14th Amendment. And it is not an insane interpretation of what the 14th Amendment means. Again, I would prefer the other side. I would prefer what you're arguing. But the simple fact is that, A, the 14th Amendment is not a very good example of clear writing. Let me just put that way. There are a number of things that play. For instance, people are arguing, well, the situation has changed. Wait a minute. We're conservatives. We don't do the living constitution. The constitution doesn't change when the situation changes. The constitution changes when we amend the constitution. So that argument, I would not work, at least on me. But what does under the jurisdiction mean? And there were some good hypotheticals that I didn't particularly like, but I thought they were incisive. For instance, somebody, okay, well, you're born of Iranian parents, but you're on American soil. The Iranian government says, well, you're an Iranian citizen. You have to come serve in the army. Are you under the jurisdiction of the Iranian of the foreign government because it says so? Or are you not? Do you have to go? As an infant, do you have to go through a formal denaturalization process in the other country that claims your allegiance? I mean, how do we decide that you're under someone's jurisdiction? The other country says you are. Are you not? Because you're like, oh, no, I'm not. Can you turn around and go, oh, wait, yes, I am later? I mean, these are real questions. And you also have a practical issue, which is what do we do with people who are citizens today under a birthright citizenship? Do they lose that? Or do they lose that after a certain date? These practical concerns are going to matter to the court. Now, I know people are like, well, Kurt, who are the arguments for? I get it. I'm a lawyer. I always walk in thinking my arguments are right. So does the other side. Okay, simply because you have an argument doesn't mean you're going to win. The courts are naturally very, very reluctant to make major changes by themselves. And let's face it, we're asking for a major change. We are asking for a completely different way of granting citizenship. And the way we're doing is saying, you know, for like 150 years, we've been totally wrong. Now, if we're totally wrong, we should change it. But that's a big ask. And in a practical matter, judges don't like to do big things. That's fair. Okay, so I get that this is an uphill battle for the government. But I'm sure, we were talking about it earlier, I'm sure you heard Cantandje Brown Jackson's line of questioning. Is there any part of the justices that might change their vote because they don't want to be associated with her in that line of questioning? I think it's a fair question. Are you saying that she's so dumb, people will go, you know, I had this one understanding of the Constitution. They realized she agreed with me. That's right. That's right. John Roberts, John Roberts legacy will be she agreed with Cantandje Brown Jackson on this important issue. I wouldn't want that as my appetite. I think he'll agree with her. I think they'll come to the same conclusion for different reasons. Cantandje Brown Jackson is, I like her consistency because I always know how she's going to vote. She's going to vote whatever liberals want. You know, last a couple days ago, she said you government absolutely has a right to tell you you can't do conversion therapy. And then last year she was like, a government has absolutely no right to stop somebody from, you know, snipping off his genitals to conform to the deletions of his much housing mommy. You know, a completely opposite ruling and she zero consistency on on natural law, but 100% constituents consistency on what blue haired nose ring sexually dysfunctional white with. Kurt, Kurt Schlichter is our guest in your columnist at town hall. Kurt, as a retired member of the military and I know that you are in support of our military strikes against Iran. And at the same time, you have concerns about, you know, getting trapped and stuck into another Middle East problem, of course, only 32 days in but given those two interests, what did you take away from the president's speech last night? Well, I was glad the president came out and told normal Americans what was going on. I thought the Democrat response was hysterical and girlish. In the worst sense of the term, he's crazy. Did you hear it? He was like a normal person. He just came out and explained things. I love when Democrats do that, because normal people look at him and go. I hate people and saying because he seemed pretty clear to me. Yeah. Look, we're clearly winning this war. People keep going. Kurt, what's the timeline? The timeline is when we're finished. We need to have a little patience. This isn't a forever war. It's not a forever war if you win it. But this has to get done. And, you know, the real test is 10 years from now when all the podcast cons who say, see, Iran hasn't done anything. Yeah, yeah, yeah. 10 years from now, Iran hasn't done anything. You'll be bragging about it. And it's because Donald Trump took care of it. He solved a problem. He's taking a huge political risk with very little political benefits because you don't get a lot of benefit about the dog that doesn't. Look for Kurt Schlickers, regular columns at townhall.com and most specifically look for some upcoming columns that might be revealing some exciting news about Kurt and Larry on the seven seas. I'll leave it at that. Oh, my friend. Thanks for joining us 845. People don't track their budget. You have this slow slipping that happens every month. To all of a sudden you go, man, I don't have any money. The reason is now two people go to a restaurant. The bill is 60 bucks for two. Two guys walking to a restaurant. They start screaming. It's hilarious. $60. Stacking Benjamin's following listen on your favorite platform. I was like, let's go to the range. So what are we putting on? We said 10 K, right? 10 K. All right. We probably bet more than all the other golf channels, right? 10 K nine holes. Those guys bet for like cookies. I'm going to shank it. This guy's been trading like a Navy seal when it comes to golf. I'm very, very excited. You excited? Yeah.