Can Trump Rewrite the 14th Amendment? (with ACLU’s Cecilia Wang)

Welcome to the Oath and the Office podcast. I'm John Fugl saying we've got a packed one this week redistricting. The mass comes off and there's a hood underneath. John Roberts and the Dirty Six unleash a wave of rabidly racist gerrymandering. An attack on democracy like we've never seen not to be outdone. The DOJ has a new push to start stripping citizenship and Trump's attacking his own judges plus the special guest Cecilia Wang, legal director at the ACLU who argued the birthright citizenship case before the court. So let's bring in the star of our podcast, the author of the Oath and the Office, Professor Corey Brechneider. It's good to see you, sir. Thanks so much, John. I look forward to this every week and you know this is really an amazing episode, one that speaks to the core of why we started this show in the first place. Trump's assault on birthright citizenship is an attempt to reverse the 14th Amendment first section, guaranteeing birthright citizenship. You're born in the United States, you're a citizen. One of his most blatant attacks on the Constitution and so to have an episode in which we're going to be joined by the person who argued the case and it wasn't just any argument, it really was a superb argument. You'll hear really how brilliant this person is, Cecilia Wang, this amazing lawyer. So we have a lot to talk about, of course, the attack on our voting rights and you know what's at stake in birthright citizenship is not just about non-citizens being denied citizenship but also the wider issue we'll speak to about this idea that the Trump administration is actually trying to take away citizenship from those who already have it. That is correct. That is part of the goal and we have a lot to unpack. So let's dive into it, Corey. Of course, to nobody's surprise, as soon as the Supreme Court told the states that they can go ahead and gerrymander their districts any way they want, as long as it's not based on color, as long as it's not to redress historic and, yeah, as long as it's not to address historic injustices but just perpetuate new ones, have at it and we have seen a feeding frenzy, particularly among the former Confederate states. Republican party is 90% white. African Americans vote for Democrats at about 85% minimum and it seems like Republican in this case is really a euphemism for white so they can hide behind partisanship but the impact is going to be the same. Tennessee is a state with a 40% black population and majority black Memphis hasn't lost the vote. They've just lost the power of the vote and any kind of representation as that city has been carved into thirds by a white supermajority that's now made those votes diluted and be minority members of all white districts. So it's tricky, Corey. Some of our liberal friends say, oh, they're going back to Jim Crow. This is something more insidious and nuanced. They haven't stripped them of their votes but they have stripped them of their votes in Congress. We're going to see no black Congress people from the South in either party by the time this is done. Are we really still watching isolated voting rights disputes or are we witnessing the beginning of a long-term minority rule system that uses courts and maps and election law to dominate? Wow. We talked last week about the Louisiana case and we've talked before about the assault on voting rights. But what we're really seeing this week, really within a few days, is why the Supreme Court, when it gives a green light to discrimination, people are going to take them up on that. And that's really the story of this week. So the Supreme Court read the 1965 Voting Rights Act to essentially require kind of color blindness. Anytime race is taken into account, you have to show that it's intentional discrimination that you're fighting against if you're trying to preserve black votes, if you're trying to preserve black voting power. And what the Supreme Court is really saying is an attempt to preserve black voting power and to create districts in which actually black representatives will be elected, that that's no good anymore. Even though, now let me just let this sink in. In 1965, there was a movement, the civil rights movement. We know these images, we learned about them. Some of us grew up with them, others learned about it in school. But people being beaten, in many cases, near death, to try to get enact a very specific law, the 1965 Voting Rights Act. And in fact, even radical politics, Malcolm X's speech, the ballot or the bullet, is about how important this law was. People from all political vantage points, moderates, some conservatives who were worried about the problem of race, liberals, progressives, and even radicals all joined together to push for this legislation. And what happened last week was nothing less than really eviscerating it. It was about legislation to protect black voting power, that recognize that attempts to dilute the black vote in particular wouldn't be allowed, and opening ways, both through legislation, but also for legislators who wanted to make good on the demands of this law, to draw districts in a way that would preserve black voting power. And that would, yes, elect black representatives. And the court just ripped into that. It left in place restrictions on things like literacy tests, but it did a lot to really say no more. We really to eviscerate this 1965 Civil Rights Act, and in particular, Section 2. And what's happened as a follow-up is that, you know, basically, lawyers used to tell those who wanted to draw lines in a way that would dilute black votes. You can't do that. There's a law that prevents it. And now, I think Republican legislators are hearing the opposite. Go for it. You no longer are restricted. Just pretend it's about party, not about race. And you can do it. That's it. And they are perpetuating an even more racist system, possibly the largest rollback of minority representation since Reconstruction. And they're perpetuating this racism through a really diabolically smart way by saying, racism doesn't exist. It's not racist. We have nothing against them. We're just doing this for politics. We're not stealing the black vote because we hate black people. We're stealing the black vote because we are historically unpopular. Gas is so expensive. The Epstein files are not going away. And we need to cheat to win an election. So we're not racist. We're not racist. We're just going to put a racist system in place to help us hold power at a time that we are historically unpopular. And again, we touched on this briefly last week. But look at this mentality. Race-conscious college admissions to address centuries of discrimination. Well, that's illegal. Race-conscious voting maps to remedy centuries of voter dilution. That's illegal. But race-conscious immigration crackdowns, race-conscious policing, race-conscious travel bans. This court really only seems to think, Professor, that we've got to be colorblind only at the times when race is used to help minorities. And what we've witnessed with the Virginia Supreme Court is downright diabolical. These Republican governors who have just imposed these, just imperially imposed these redistrictings, whereas California and Virginia went to the voters and said, Republicans are doing this. We don't want to do it. Should we do it to save democracy and counter their attempts to steal the house? The voters decided. And then three white people undid the votes of the majority of Virginians. And now they're going to try to redistrict and rob people of their vote. I mean, how significant was the Virginia Supreme Court decision striking down the voter-approved redistricting system? This isn't really just a legal dispute at this point. It's representing courts just overriding Democratic self-government. Yeah. I mean, you know, one hope was, okay, we've eviscerated the 1965 Voting Rights Act. Maybe we'll leave things to the states. And what this example shows is no state Supreme Court, just like the United States Supreme Court can undo decisions of local majorities the same way the Supreme Court really undid, let's just call it what it is, the decision of a national majority to enact that law, the 1965 Voting Rights Act. I do want to, in the big picture, come back to something that you said because I want to make sure listeners are following it. I mean, it really is the case that now, if you want to be involved in diluting black votes and making sure there are no black representatives in your state, the Supreme Court has given you a roadmap. It said, even though that's prevented by the 1965 Civil Rights Act, you can't say it explicitly, but just pretend that you're doing partisanship, that you're trying to maximize Republican votes and Republican seats, and then we won't say anything about it. Now, here's the pernicious part just to expand on your point. Please. If you're trying to rectify a current and past system of discrimination against black voters and draw districts in a way to comply with the 1965 Civil Rights Act demand, that really non-discrimination in the vote means respecting black voting power. If you're trying to enable black voting power, that's highly suspicious and almost certainly unless you can show that you're rectifying intentional discrimination, that you have the goods, the kind of smoking gun that's very, very hard to get, then I don't think so. You can't do it. You mentioned the travel ban. I mean, what a horrible instance. Donald Trump in the travel ban case said, I want a complete and total shutdown of Muslim immigration into the United States. And then he did a little bit, his lawyers did a little bit to try to cover that up. That was an example of intentional discrimination. This is just going to illustrate how hard it is to show. The lawyers covered it up. How did they do it? They added North Korea and Venezuela, which are not Muslim majority countries. They got rid of the preference for Christian over Muslim refugees that was in the first travel ban. They took out any marker of intentional discrimination. And unbelievably, the court was like, oh, that's not intentional discrimination. It's just by coincidence relates to that other travel ban that I was talking about before the election. And one last sentence. Trump told us repeatedly, I prefer the first travel ban. He let us know that the whole thing was a subterfusion and the court still didn't do anything about it. In the Virginia case, democracy, we tried to resolve the problem through democracy. The people voted. And here came the Virginia Supreme Court and overrode a process that took millions of dollars. Many people were involved in the voters of Virginia spoke and they just undid it. Now that's a different set of issues legally from what's happening at the national level, but it's certainly part of the wider story of undoing guarantees of civil rights and non-discrimination to vote. And again, you know, they seem to think that this isn't racist because they don't have hate in their hearts. This is what systemic racism looks like because they've rigged it that there's not going to be any black Republicans in Congress either. They have rigged it so black people will still get to go vote. And maybe those votes will count for state and local elections in some areas. But in other areas, no, they have found a way to make sure that a majority black neighborhoods are now minorities in a wider white neighborhood. And this is how the system works. They're arguing that they're defending constitutional originalism, Cory. They're defending judicial restraint. But when courts overturn voter approved reforms, only after voters approve them, that's an important point. They didn't come out and say before the referendum, you can't do this. They waited to see how the referendum went. And then they came out and said, oh, that's what you want. Huh? Well, that's wrong. I mean, when courts are overturning the will of the voters after the voters approve them, how should Americans interpret that? Louisiana, they're throwing out votes that have already been cast so they can cheat. Yeah, their argument is that, you know, this legislation came too late. The process took too long. And some of the people who voted thought they were voting under the old scheme, not the one that had been voted into Virginia's law. And so the Supreme Court struck it down on the grounds that, you know, this was not, there wasn't fairness. There wasn't a kind of notice that it was retroactive. But the bottom line is, you know, in the big picture that we have the Supreme Court undoing democracy by really rewriting the 1965 Civil Rights Act so it wouldn't be recognizable to anybody at the time. The idea that this is somehow based in the text is beyond foolish. You know, people fought not for white rights, not for worries about discrimination against white people and drawing maps, which is essentially what the Supreme Court has done is rewritten it to mean that. And then, you know, one common thing that you hear from conservatives too is, well, states write, states write, states write. They used to say that. Yeah. The moment that a state engages in a democratic process to preserve the vote, the Supreme Court of Virginia steps in. And, you know, I don't see, used to be, maybe there would have been recourse under the 1965 Civil Rights Act that we could have brought this to the Supreme Court. And I would have said federal law, you know, is at play here. But what I'm hearing from experts is, no, Virginia has spoken. The 1965 Voting Rights Act has largely been eviscerated. And this might be the end of it. I mean, you're right. They only care about states' rights when they want to be racist in some way. If the state of New York wants to have gun safety laws, they don't believe in states' rights then. Medical cannabis, I mean, we've seen so many areas where they don't really care about states' rights. They care about their own power. And they'll believe whatever they have to believe to push that over. So everyone's saying, all right, how are these Democrats going to fight back? How are we going to save this democracy? How hard are they going to play hardball? I mean, I heard that Chuck Schumer was so angry, he tore one of the tassels off of one of his loafers, like that level of rage. We need more than that. And there's a lot of ideas floating around. And I want to ask you about a very interesting legal theory, which is that, okay, if they're going to do this, if they're going to throw out the will of the voters, well, under Virginia's constitution, they let the General Assembly set mandatory retirement rules for judges. So if Democrats wanted to approach this and play it the way Republicans do, you know, dirty but legal, they could constitutionally lower the judicial retirement age, force these judges out of work, and then appoint all new judges and reopen the entire redistricting fight. Again, it's dirty as sin, but legally it could and the amount of rage on Fox News over this idea almost makes it worth it. This reminds me of how FDR, when three Supreme Court judges were trying to undo the new deal, he didn't really try to pack the court. He just threatened to pack the court. And those judges back down. I'm all in favor, Cory, of Democrats going for this as hard as they can, whether they do it or not. I think people just want to see them on the offense and say, all right, if you're going to use procedure as a weapon against democracy, we're going to try that out too. Well, I'll go back to the FDR point. It's worth going into a bit of history with this, that exactly as you say, he never carried it out. But the idea was during the new deal, conservative justices on the Supreme Court, this is going to resemble many, many ways what we're facing now. We're looking at democratically passed legislation and not rewriting it the way the court did with the 1965 Voting Rights Act. They didn't strike it down or say it was unconstitutional. They essentially reinterpreted it until it meant nothing. But at the time, they were more aggressive. They said, this is all the new deal essentially is all illegal. It's violating the federal constitution. There's no power in particular of the federal government to enact a new deal. Now, America was in the Great Depression and FDR realized that this couldn't stand. They couldn't be passing his signature agenda with the support of Congress. And here come these unelected Supreme Court coming in and striking it down on pretty dubious legal theories, I think. I mean, longstanding, but ones that certainly since the new deal have been abandoned. So one thing that he did in addition to arguing in court for the constitutionality of his own agenda was to say, well, what if we add justices until the existing justices votes are so diluted and there's nothing illegal in that? Nothing. We've had different numbers of Supreme Court justices at different points in time. And so through legislation, you could up the number, say to 30, and keep getting through the again, the legal process of nomination and confirmation, new justices. So now as we're facing this plethora of attacks on our democracy, it's looking more and more like the crisis of the new deal. And I'm not underplaying that crisis. It was a real crisis. Yeah. FDR didn't have to actually carry it out. Scholars disagree about the reasons, but I think one reason why the Supreme Court magically changes its mind. In fact, there's something called the switch in time that saves nine, where all of a sudden the new deal goes from being struck down to being upheld. Go figure. Partly it was about this threat. Partly it was about the power of Congress. The justices just couldn't see themselves opposing a democracy in this massive sense. So now the question is, should we do this now too? Should we threaten to, if Democrats, of course, would have to retake both Congress and the presidency, should we add justices? Should we play constitutional hardball? This is certainly an example. And I'm affirming yes. I mean, how that's going to play out, whether the number is 30, whether it's doing it, you know, in a variety of different ways using impeachment. There are a lot of legal tools to do this that also we can talk about it. I've talked about packing the court. My colleague said, use the phrase court reform. So I'm okay. I'll call it court reform. Whatever. I just want to, I want to, and that is a very good analogy of that point in history. Yeah. I can't wait to interview and support and donate to candidates who are going to really bring the fight because they care more about democracy than power. Of course, our Republican friends, you know, during Biden's administration, there were so many opportunities, including a moment where this was at least looked into. I know. And much to my disappointment, Biden, you know, in so many ways really failed to make the structural reforms that we needed to our constitution because he worshiped norms. We can't be, we can't, we can't allow it to escape again. He worshiped norms and wanted to be the good guy and didn't want to do this sort of thing, which is understandable. But you know, I'm old enough to remember because amnesia is the most deadly airborne virus in this country. These Republicans decided one time to change the Supreme Court from nine to eight for an entire year just to deny a black president an up or down vote on his duly appointed Supreme Court nominee. I mean, I remember how right after doing that, they rushed Amy Coney Barrett through an election after votes were already cast before Ruth Bader Ginsburg was even cold yet. All we're talking about is doing the same kind of things that Republicans keep doing over and over again because Republicans don't respect norms and they don't respect doing the right thing. Yeah. And for those, you know, there are a lot of objections, of course, to what we're saying. And I, of course there are some of them, but they're not coming. But those people, I'm sorry, but those objections came from people who had dick to say when Richard McConnell decided we could have an eight person Supreme Court for a whole year. And that was going to be my point that what the objection normally says is this, the objection says, look, if we engage in court packing or court reform, whatever you want to call it, but constitutional hardball of these different kinds, then what's going to happen is that now once Republicans are in power, they're going to do the same. And there's going to be, you know, 100 members of the Supreme Court or it'll just be a back and forth. We're already there. And that moment that you're talking about with Merrick Garland's nomination and the refusal to act on it was the destruction of the norm. And so if one group is just destroying the norms and the other group is pretending that the norms are still there, I don't think so. It's the same thing with redistricting too, that California and New York, California has already moved on this, New York needs to move, really need to, yes, to reshape votes. I don't even want to call it Jerry Man. It's a way of protecting against the destruction of democracy that's happened on the other side. It's democratic defense. I mean, Jim Clyburn's seat in South Carolina will disappear. They are not going to try to get rid of him. He's too popular. So they're just going to make sure that the folks who vote for him have votes that don't count for anything. Then the court just allowed Alabama to pick a different map for this year's congressional elections. Totally last minute. Again, Louisiana is throwing out thousands and thousands of votes because they don't care. And Cory, Tennessee, 40% non-white, and yet they're trying to dilute the representation. How should Americans understand what's happening in Tennessee historically? Well, I think Tennessee, Alabama, where there's an attempt to get the Supreme Court to intervene here on the basis of the 1965 Voting Rights Act. What we're going to see in a lot of these cases is as there's an attempt to dilute black votes, black voting power, there'll be lower courts that intervene in the right way based on the old interpretation of the 1965 Civil Rights Act. And I shouldn't say old. I should say the right interpretation. Thank you. They will push back on a lot of these attempts to destroy districts that ensure black voting power. But here's the problem. The Supreme Court, I'm almost certain, is going to come in and say that in almost all of these cases, you failed to show intentional discrimination. The breakup of these districts is about partisanship, and that's okay. And that's why this decision matters so much because we're seeing on the ground already. You mentioned Tennessee and Alabama attempts to destroy black voting power. We'll see lower courts push back. And then the Supreme Court's going to say, did you not read what we did a few days ago? And that's where we are. Okay, we got to take a quick break. Back in just a moment, this is The Oath in the Office. If you found yourself asking, can the president really do that, then check out the new season of You Might Be Right, hosted by former Tennessee governors Phil Bredesen and Bill Haslam. Recently featured as a must listen podcast by Spotify, You Might Be Right is the chart-topping politics podcast tackling timely policy conversations with world and U.S. luminaries like Al Gore, Judy Woodruff, and more. You'll hear balanced perspectives without the shouting matches found in mainstream news. If you need a place to start, check out their recent episode that poses the question, should a president be able to take control of a state's National Guard to restore order, even if a governor disagrees? It's a thoughtful debate featuring Rosa Brooks, former senior advisor at the U.S. Department of Defense, and John Yu, former official with the U.S. Department of Justice, to discuss the ability to federalize the National Guard and the unique role the Guard plays in times of crisis. And it's well worth the listen. So follow You Might Be Right on Apple Podcasts, Spotify, or wherever you get your podcasts and tell them that I sent you. There is a lot, I mean a lot going on in the news around our government and our laws, and there's one question we hear all the time. Is this constitutional? If you don't remember all the civics classes you may have taken in school, you can get the answer to that question and many others by listening to Civics 101, the acclaimed podcast from New Hampshire Public Radio. Civics 101 is an entertaining way to learn about how our government works, or at least how it's supposed to work, and you'll hear a lot of surprising stories along the way. Hosted by Hannah McCarthy and Nick Capote, Civics 101 will help you understand a bit more about what's going on and maybe even make you a smarter citizen. You can listen to Civics 101 wherever you get your podcasts and tell them the oath in the office sent you. Welcome back to the Oath in the Office podcast. I'm John Fugelsang. Cory, let's talk about citizenship for just a minute. The DOJ is reportedly expanding their efforts to take citizenship away from some American citizens because they feel like it. Historically, Cory, how rare is denaturalization as a political tool in this country? Wow, it really is a tool of authoritarianism to say if we don't like you, we're going to take not only potentially violate your rights, but violate what the Supreme Court has called the right to have rights, the right of citizenship in the first place. And not only did the court in the past rebuke these kind of efforts in many cases, there's one where they really use that phrase, the right to have rights, which is also made famous by the political philosopher Hannah Arendt. And it was a case called Trump versus Dulles, where the Supreme Court said that it was a violation of cruel and unusual punishment, the Eighth Amendment, to strip away as punishment for a crime the rights of a citizen. Now, over time, they made an exception for that, which is that if you committed fraud in your application, the theory was, well, you never really became a citizen in the first place. So if you could show fraud in the application process, it was a narrow window. But it was not one that was widely used. And it was one that the court made very clear, too. You can't just use that as your excuse for really engaging in stripping the citizenship of your enemies or people that you don't like. Yet here we are revisiting this, they're going to try to use this narrow exception, the supposed fraud, in order to go after, I think, a lot of naturalized citizens who they consider enemies. They've already said in the Khalil case that non-citizens have no First Amendment rights. Just insane. Yeah. And now they're trying to say you don't have a right to citizenship if you were naturalized. Amazing. I mean, I mean, I don't know how to be scared about this. Do we need to start viewing citizenship not as a constitutional guarantee, but something conditional, something revocable? I mean, have we crossed that authoritarian line? We should view it as anything but we should view it as irrevocable. And one of the amazing things, and it's just coming up in a few minutes, that Cecilia Wang, the legal director of the ACLU, has done is present a beautiful argument for why the Constitution, as clear as day, says if you're born in the United States, you're a citizen. So that step one is pushing back there. Now we have to recognize there are multiple fronts. This is the second front that they've opened up against the right to be a citizen. And here we've got to say too, using this really important case, trout versus dull is one of the most important, I think, when it comes to our rights as citizens, the idea that we have a right to have rights, that citizenship can't be stripped away as punishment for a crime. And we've got to insist on that. We've got to do it through litigation. And we've got to do it, I think, through legislation. These are among the laws that need to be passed if Democrats ever retake the Congress and the presidency. Yeah, it's pretty terrifying. I thought we had safeguards against this sort of thing. Do you think they'll be successful, Cory? I mean, do you think they'll just tell people you're not one of us anymore? Well, I think the first test is, and we're about to talk about it, the birthright citizenship case. And I was really heartened to listen to that case and to hear the justices defend the Constitution. And I think this is as clear here too, that you can't just take away somebody's citizenship because you don't agree with them. Now, they're going to look for cases in the beginning in which there might really be fraud. And in those cases, I think the administration, even though their motive is not just to combat fraud, they might get away with them. But as they go deeper, that's where the pushback will have to happen. And as with birthright citizenship, they're going to try certainly to take away all of our rights. They're trying to destroy democracy. The administration, Trumpism, that's what it's about. And we'll fight back as hard as we can. God, we live in the only country on earth to produce white trash oligarchs. We're also seeing Trump publicly attack his own hires. Amy Coney Barrett and Neil Gorsuch, after rulings he disliked. When I say his hires, I mean, you know, the Federalist Society handed him a piece of paper saying, this is who you like. But Cory, how unusual is it for a president to pressure justices from his own ideological cult in such personal terms, so nakedly and publicly? I mean, I think I maybe heard George Bush, Sr., complain about suitor once maybe. Well, it shows you how little he understands about how the Constitution is supposed to work. He thinks that he appointed his judges, and they're supposed to say, this guy is great, the same way that the sick of vans like Stephen Miller around him say every day. And they're not saying that. They are, I think, approving too much of his agenda through the shadow docket, which we've talked about and will continue to talk about. But what he just saw, the Supreme Court, and he walked out mid-argument, was these justices essentially saying, you can't do that? What are you talking about? The 14th Amendment says, if you're born in the United States, you're a citizen full stop. And I think that really, he can't quite understand it if you're an authoritarian, the idea that you are people, you are judges. And even the way he talks about them, Neil and Amy, these are supposed to be my people that they're pushing back. It shows you how little he understands about this system. When you and I met, I wrote a piece for Politico called Trump vs. the Constitution of God. And this is the latest iteration of Trump vs. the Constitution. I mean, how much do you think about all these struggles, all these constitutional conflicts? How much is it really ultimately about pluralistic democracy itself? Who gets representation? Who gets citizenship? Whose votes count equally? Because these guys seem to despise the concepts of democracy while pretending to love it in much the way they despise the teachings of the New Testament while pretending to love it. Well, I think that really is when we talk about defending democracy, what you and I mean, we should use the phrase explicitly, is multi-racial democracy, multi-ethnic democracy, pluralistic democracy. When Trump talks about democracy, he means a democracy where the white people are in charge. And you see that in so many of his animus, hatred-based policies, the travel ban we mentioned earlier. And the clearest example is trying to revoke one of the places where the Congress couldn't have been clearer in its amendment, the 14th amendment, that if you were born in the United States, you are a citizen. It wasn't just a reversal of the Dred Scott case that said black Americans are not citizens in our Constitution, they're not even legal persons. It was meant to create a much broader multi-racial democracy and one that means what it says when it says if you're born in the United States, we'll stop your citizen. We're going to apply a test of parentage, of race, and this president's trying to destroy it. That's why we're going to focus on this case in such depth today. Well, I'm excited for this guest. Let's take a quick break. We'll be back in a moment on the Oath of Office. Hey all, Glenn Kirschner here. Friends, I hope you'll join me on my audio podcast Justice Matters. We talk about not only the legal issues of the day, but we also talk about the need to reform ethics in our government. Here's one example, the Oath of Office. You know the one. I do solemnly swear to support and defend the Constitution against all enemies, foreign, and domestic. Let's add 22 words to that Oath. Quote, and I will promptly report any instances of crime and or corruption by government officials and employees of which I become aware. Friends, our democracy is worth fighting for. Join us in this fight because justice matters. Look for Justice Matters wherever you ordinarily find your podcasts. Welcome back to the Oath in the Office. It really is an honor today to introduce to you Cecilia Wang, who is the ACLU's National Legal Director. Most recently, and this is what we're going to talk to her about, she in the Supreme Court argued that Trump's executive order, essentially revoking birthright citizenship, was unconstitutional. And she's going to walk us through some of that argument, what it was like to participate in it. And as of course, listeners know, listening to this show, since the beginning, since we've started it, we've regarded this promise to revoke birthright citizenship as really a symbol, not just any ordinary case, but a symbol of Trump's attack on the Constitution. So this isn't any ordinary case. It's a historic one. That was, I listened to it. It was an amazing argument, a historic argument, one that will be taught in constitutional law, I think for forever, as long as we have a country, we have constitutional law. So Cecilia Wang, welcome to the Oath in the Office. Thank you so much, Corey. It's a pleasure to be with you. Can we just start with the big picture? We have, of course, the first section of the 14th Amendment that until this executive order, many people thought was pretty plain as day. It says, if you're born in the United States, that you are a citizen, full stop. And there is this phrase, of course, that we'll get into subject to the jurisdiction. But let's start with a big picture. What's really at stake with this case? So the immediate stakes in the birthright citizenship case, of course, is whether President Trump's executive order regarding the 14th Amendment citizenship clause can go into effect. So he, contrary to the plain words of the 14th Amendment and its historical context, as well as statute passed by Congress, is trying to exclude the children of undocumented immigrants and people who are here in the United States lawfully, but on a temporary visa, temporary sometimes meaning years, from being covered by the 14th Amendment's guarantee of birthright citizenship. So those are the immediate stakes. Can President Trump carry out his revisionist view of the 14th Amendment citizenship clause through an executive order that purports to reinterpret the 14th Amendment in a way that's contrary to what both the Congress and the Supreme Court and all of us ordinary Americans have thought? It's been almost 160 years since the 14th Amendment was ratified. So those are the immediate stakes. But to take a step back and look at an even bigger picture, what's really at stake is whether the President of the United States can redefine and narrow our national tradition of birthright citizenship. Can the President decide that the people that he disfavors should be excluded, should not have a sense of belonging in our national community? And those are kind of the larger stakes. And if we take even another step back to look at the really bigger picture that President Trump came into a second term, really on day one, trying to undo the work of Reconstruction, which includes the citizenship clause of the 14th Amendment, but also so many aspects and progressive laws that were enacted and implemented as part of the second Reconstruction with the Civil Rights Movement and Jim Crow. And so those are all the stakes from the narrowest view to the broader view. Yeah, I love that you laid it out that way, because of course the immediate question is about whether this specific executive order is constitutional or not. But the wider question, of course, is what's going on with the President that wants to revoke a symbol of the idea of equality under law and the very symbol of multiracial and multiethnic democracy? Well, it's because it's part of a wider assault on democracy. He doesn't believe in, I think, the idea of multiracial democracy, not only that you and I believe in, but that the crafters of this 14th Amendment with its birthright citizenship clause, its guarantee and also of equal protection of the law fought so hard for. I want to get into a lot of the doctrine here and see how this argument played out and ask you about some of the questions. But I have to ask you, since we've been talking about Trump, is that of course at the center of this, it's an executive order. What was it like to argue this case with the President of the United States, with Donald Trump sitting right there? I think it was historically the only time that a President showed up and he showed up to hear what you had to say. So what was that like? Well, candidly, Cory, I didn't know whether he was in the courtroom or not. We had gotten notice the night before, of course, when he posted, I guess, on social media that he was planning to attend. We got an advance notice because we needed to arrive at the court earlier than usual because of the increased security around the President being in the House. And so I knew that he might be there, but even as I was walking into the courtroom, the information I was getting from the clerk's office was that they weren't sure, 100% sure that the President would be there. So I didn't notice one way or the other. I was very focused on the nine justices. I was focused on my opposing counsel and what he was saying. And so it didn't occur to me, it didn't affect me one way or the other that he was in the room. I didn't find out until later that he was in fact in the room, at least for the first few minutes. Amazing moment. I mean, one of the signs of your effectiveness is that he evidently walked out, made argument and also has recently, as I think you know, been talking about why, in his words, Neil and Amy have not really been loyal enough to him, which I think might have something to do with watching them respond to your arguments in a sympathetic way. I do want to ask you about the dynamics in the courtroom, but I also want to ask about the specifics because of course the Trump administration had to come up with a reason why he could essentially undo this guarantee of birthright citizenship. And the court and Trump himself, you know, claims to care about the constitutional text. So they turn to this idea of subject to the jurisdiction. So tell us about how that argument works and how it relates in particular, the related idea that the 14th Amendment, birthright citizenship clause was really only about black Americans and a reversal of the Dred Scott case and not the broader guarantee that you and I have been talking about. And they offer this idea of also related of allegiance. So tell us about what their argument is and how you respond to it. Yeah. So, you know, as a lawyer, you always want to start the words in this case of the 14th Amendment. So the 14th Amendment says all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States. And so the only leeway in that text that the president, you know, tried to explore or take advantage of was, of course, that phrase subject to the jurisdiction, which you just referred to. So you start with a text and then you look to two sources to figure out what those words meant to the framers, to the Republican drafting committee that wrote the words of the 14th Amendment. And we know two things. The first is that the framers of the 14th Amendment wanted to have broad birthright citizenship for almost everyone in the United States, but they wanted to encompass these preexisting historical exceptions to birthright citizenship. And that was what they meant by those words subject to the jurisdiction. Who are we talking about? Most people know that ambassadors, right, you know, foreign ministers, you know, representatives of foreign government, when they're in the United States have immunity. And that's a matter of comedy between the two, not comedy like ha ha, but C-O-M-I-T-Y, that, you know, these two countries as a matter of mutual respect and in order to be able to do diplomacy, give each other this immunity from prosecution, the ambassador in the United States is treated as if they're physically still in their home country. And so the children of ambassadors were excluded from birthright citizenship under that phrase subject to the jurisdiction thereof. There were a number of other exceptions that originated in the English common law, including the ambassador exception, which the framers wanted to carry over. The only exception to birthright citizenship that didn't come from the English common law that the framers were trying to carry over after the 14th amendment was ratified was an exception for members of Native American tribes known as Indian tribes in the technical legal term. And so that was it. Subject to the jurisdiction thereof in the citizenship clause simply meant that everyone born in the United States who is subject to the jurisdiction of the United States, meaning they have to obey the laws and they have the protection of the laws of the United States, is a citizen. And the only exceptions were these narrow categories like ambassadors and under the constitution members of tribal nations. So the way, as I understand it, that the Solicitor General tried to take this historical fact that he's referring to and turned it into an argument, I mean, I have to say from the beginning, I've been wondering how are they going to create an argument so that the thing that we've all seen with our own eyes, how can they turn it into something that makes this an even plausible executive order? It seems to just clash directly with the meaning of the Constitution and its tax. So they're relying heavily on this idea of subject to the jurisdiction. I guess one thing that I don't know if I want to say it's a full argument resembled an argument is that, well, there wasn't this idea of undocumented people in the 19th century that the immigration systems were just so different. So if you think of the principle that applied here that these exceptions and the meaning of who the amendment refers to wouldn't apply to the children of undocumented people. So that raises some interesting puzzles about how to think about facts that are different in the 19th century from now, how to think about history and text. So tell us how did you handle that and how did you read the justices who, of course, I would say a majority or so heavily focused on the idea that the law is the text. Yeah. So what you're referring to is kind of a, there are two broad schools of thought when it comes to the interpretation of our Constitution. And the prevailing one for a majority of the Supreme Court currently is an originalist school of thought, which says when we're interpreting the words of the Constitution, we need to pay attention only to what the framers of those words, whether it's in 1789 or in 1868, in the case of the 14th Amendment, what they were thinking, what was the original public meaning that was understood. And the other school of thought, of course, is what might be referred to as living constitutionalism. So the idea that the framers weren't thinking about all possible future applications of their words necessarily, and that we do our best to interpret what the spirit behind those words was. As I said, the originalist school of thought is the prevailing one on the Supreme Court now. And sometimes that creates some real problems of constitutional interpretation, but not when it comes to the citizenship cause of the 14th Amendment. We set out a purely originalist interpretation that I just laid out for you and your listeners, that the Republican committee that was drafting the 14th Amendment, and indeed all the members of Congress who debated the words of the citizenship clause, were all in agreement that the only exceptions were ambassadors, tribal members, and the other very, very narrow exceptions that only applied to a couple people at most under the English common law. And that would include people born on foreign ships that were docked in a US port, for example. And so it was interesting, as I was preparing the little aside here, as I was preparing for the argument, lawyers do these practice sessions we call them moots. And I had a member of the Supreme Court Bar, someone who's a very experienced Supreme Court practitioner who said, this is a really weird case because you have the ACLU making an originalist argument, and you have the Solicitor General of the United States talking about policy. And so, you know, I bristle a little bit at the idea of the ACLU's normally making policy arguments, I think, we're making textualists and original meaning arguments all the time. But in this case, there's just no question that that is what the framers and the state legislators who ratified the 14th Amendment understood the words to mean. Now, to get to another part of your question, you know, what is the Trump administration trying to do here? And what is their move to try to go against what everybody has understood about the meaning of the 14th Amendment since 1868 and certainly since 1898. And, you know, what they did was they started with a Supreme Court decision from 1898 called Won Kim Ark, which was the first case in which the US government was trying to exclude the US born child of a foreign national from US citizenship. And this was a case where the Supreme Court held in 1898 that this man, Won Kim Ark, born in San Francisco, to parents who were Chinese nationals, was a US citizen. And the Trump administration basically used a move that has been tried out previously by a number of people on the far right who are, you know, anti-immigrant activists, you know, throughout the last few decades, you know, we have seen efforts on the far right to take away the citizenship of people of noncitizens, take away citizenship from the children of noncitizens. And the move that they make is that in the Won Kim Ark decision, the Supreme Court, Justice Gray, writing majority opinion, happens to mention several times by the government's count, 22 times in all, in a very long opinion, that Won Kim Ark's parents were domiciled in the United States. And so the Trump administration basically has used a move that has been tried unsuccessfully in the past to try to reverse engineer an argument from that happenstance in the Won Kim Ark decision to say, oh, that means you have to, your parents have to have been domiciled in the United States at the time of your birth for you to be a citizen under the 14th Amendment. And so that kind of explains how the president structured his executive order, at least in part, because the one thing that he can't explain still is how he can exclude children born in the US to unauthorized immigrants who are domiciled in the United States. Many people, millions of people in this country who overstayed a visa or who entered without inspection, but have lived in the US and have these strong ties and have no other home in many cases for decades, in many cases since they were young children themselves. So that basically is how we got to the president's theory of the 14th Amendment. Yeah, that they looked at Won Kim Ark, which is of course about the idea of the plain meaning of the birthright citizenship guarantee that if you're born in the United States, you are a citizen, of course, applies beyond black Americans. And yet they try to use it in a way to say that no, in that specific case, the facts were that the person had allegiance, Won Kim Ark had allegiance to the United States because of the fact that he was domiciled here. I mean, so let's get into the argument. I mean, it's fascinating, I have to say too, just giving us those notes. And I think people want to hear more about it that coming into this, you thought, wow, I don't always get to argue straight originalism to use the theory of Justice Gorsuch and Justice Barrett and at least supposedly Justice Zoledo and Thomas. But here it just screams out that we have the text. And as you've been telling us, we have this amazing case that says, yes, this is not just about reversing Dred Scott and Dred Scott's evil holding that black Americans don't have citizenship under the Constitution or even legal personhood, it goes way beyond that to mean what it says, you know, born in the United States, you are a citizen. So tell us what it was like as you were arguing the case with this preparation. I mean, did you feel like the originalist arguments were clear? Did you feel resistance in places that you were surprised by? Yeah. So, you know, I think we went into this argument very confident in our arguments, not only because, you know, we had written a brief that reflected, as you said, the plain words of the 14th Amendment, and also, you know, the English common law context for American citizenship, right, which the Supreme Court explained in the Wong Kim Muck decision in 1898. But we also had confidence because we had such a broad array of friend of the court briefs that were submitted on our side, including very conservative legal scholars and lawyers who, you know, all joined forces to say, look, the original public meaning of the 14th Amendment is really clear. The other thing that gave me a lot of confidence, and really not just confidence, but I felt Corey like I was channeling the voices of millions of Americans who, like me, are 14th Amendment citizens, born when our parents weren't yet naturalized, and our ancestors, you know, most Americans, unless you're a descendant from someone who was an enslaved person of African origin, or if you are descended from people, or if you're an indigenous American, all of us have some ancestor at some point in our family's history who's been in this situation. And I really felt that I was standing there at the lectern in the Supreme Court channeling all of those voices of people living and our ancestors to really stand up for that original public meaning of the 14th Amendment. You know, you've mentioned a few times that the president, I think in a really cynical move that's meant to try to divide people, says, look, 14th Amendment citizenship was only for Black Americans. And there was a really wonderful amicus brief, friend of the court brief, filed by the historian Martha Jones, who's written the definitive history of Black Americans, free Black Americans, struggles for birthright citizenship, both before and in the wake of the Dredscott decision. And what her brief made absolutely clear is that free Black Americans who were responding to the Supreme Court's Dredscott decision that excluded all Black people based on race from birthright citizenship in the United States, in responding to that, free Black Americans weren't trying to win birthright citizenship only for Black Americans. They wanted universal birthright citizenship. And those efforts by Black Americans, you know, fed into the radical Republicans who framed the 14th Amendment, you know, there's nothing in the words of the 14th Amendment that say, this is just to give citizenship to Black Americans and to overturn Dredscott. If that was what the framers of the 14th Amendment meant, they would have written very different words. Yeah. And the beauty of the 14th Amendment and the first sentence of it, the citizenship clause, as a reconstruction document, you know, after first abolishing slavery, 13th Amendment, then you get to the 14th Amendment, they started out by wanting to provide for equal rights for all people in the United States. But then they added the sentence at the beginning that dealt with citizenship. And it was centrally about completing the project of free Black Americans who were fighting for universal birthright citizenship. And there was so much history, such rich history, behind this argument in those amicus briefs, not only Professor Jones's historical brief, but a really lovely brief filed by Professor Tyler Ambinder and Professor Garrett Epps, which I actually referred to during the argument when, you know, Justice Alito was asking, you know, well, the framers of the 14th Amendment in 1866, as they were writing those words, there was no such thing as an undocumented immigrant at that point, because Congress only enacted restrictions on immigration a few years later. The first one was in 1875. So, you know, it can't be that the 14th Amendment encompasses the children of undocumented immigrants. And there are many responses to that based on the history. First and foremost, there was a debate about the citizenship clause, where senators, you know, were all acknowledging that the children of immigrants would be citizens under this language. And there were those senators who opposed that and said, we don't want the children of people they call Gypsies, Roma, or Chinese immigrants. We don't want their children to become US citizens. And that's exactly what these words do. And then you saw other senators, including really movingly Senator John Kones, who was an Irish immigrant himself, Senator of California, who responded directly to the views of the opponents of the 14th Amendment, saying, yes, the children of so-called Gypsies, the children of Chinese immigrants, much as they are reviled right now, and a disfavored minority in my home state of California, their children are all going to be citizens. And that's exactly why I'm voting for this amendment. And there's all that rich history. You have the brief that I started to mention, the Anbinder Epps brief also talked about the fact that in right before, then the 10 to 15 years before the 14th Amendment was framed in 1866, there were millions of Irish immigrants who came to the United States because of the famine in Ireland. And the Know Nothing Party, which was ascendant in the 1850s in Congress, you know, was just virulently xenophobic and anti-Irish, anti-Catholic. And they believed that these Irish-Catholic impoverished immigrants were unassimilable. The Know Nothing Party members felt that these Irish-Catholic immigrants were less than human. And yet even the Know Nothing Party believed that the U.S. born children were the Irish Catholic immigrants. They didn't want to go that far. And Trump, even the Know Nothing Party, didn't want to go as far as Trump. That's an amazing detail. Exactly. And so there was such a rich history about the movement of free Black Americans for universal birthright citizenship and the experience of Irish Catholic immigrants and the experience that incredibly moving colloquy between Senator Cowan of Pennsylvania who opposed birthright citizenship and Senator John Conness of California who spoke as an immigrant himself saying, this is the beauty of birthright citizenship. This is the beauty of these words. We'll all be Americans. And that's what I'm voting for. All of that, you know, I was trying to channel all of that while I was standing there in front of the Supreme Court. It's an amazing moment in American history. And, you know, as I listened to it, I was thinking, you know, teaching the 19th century, teaching reconstruction, that this is an amazing drama because what's happening is you have an administration trying to essentially destroy the result of a war, what it took to create the idea of equal protection that everybody born in the United States is a citizen. Of course, this one case is part of, as we were talking about in the beginning, the wider fight for what Frederick Douglass Long called equal protection and the words that make it into also the 14th Amendment, first section equal protection under the law. And to hear that you were channeling, thinking about this history, because in a way, you weren't just championing all of us. You were championing these long ago heroes fighting for democracy and fighting for multiracial democracy specifically. And, you know, so often the Trump administration brings up the people who lost that fight, the virulent races. I love the idea that even the know nothings understood that the next generation, you couldn't discriminate there. Come on, people. And Trump has gone too far. So what an amazing firsthand account of really living history, I guess, is what I would call it. That's what you were doing and channeling these voices. And, you know, often when we talk about the text, it can sound very technical, very semantic. But what you've brought out, I think, in this conversation is the text is there for a reason. And this text, in particular, the 14th Amendment, first section, is a realization, not just a symbol, but an encapsulation of the fight for multiracial democracy and literally on the heels of the most violent conflict in American history. So what an amazing thing for our listeners to hear that that was in your mind as you were doing it. Many of us would be thinking like, oh, no, are my notes in the right order? Oh, believe me, I was thinking that too. Can I ask Cecilia, what an amazing discussion. But I just, as we reach the end of this amazing discussion, wanted to ask you about, of course, to me, anyway, this looks like a great moment, a moment where the Supreme Court is about to rebuke the president of the United States with his really racist and anti-democratic executive order. But I just invite you to talk about where you see the, of course, as the legal director of the National ACLU, you're thinking strategically about how to stop all of these attacks on our democracy. So how does this fight fit in? And what are you thinking about when it comes to the wider assaults on democracy? If you wanted to, we've been talking, for instance, about the DOJ trying to revoke citizenship of naturalized people the next step in the war on democracy. But really any thoughts about this wider assault on democracy and what is you as legal director are in the midst of doing in this fight? Yeah, I would say, you know, this actually happens to be a tough moment. You and I are talking the day after the Supreme Court issued an order that vacated an injunction that we won through litigation against racially discriminatory congressional districting map in the state of Alabama. We had won the case in the lower federal court and then won in the Supreme Court three years ago. And then, of course, a couple weeks ago, the Supreme Court issued a decision in Louisiana congressional redistricting case we also were on with LDF called Louisiana versus Calais and really undermined and gutted Section Two of the Voting Rights Act, you know, the crown jewel of the Civil Rights Era legislation passed by Congress in 1965 in order to give voters a tool to go into court and fight against race discrimination and voting laws. And, you know, immediately over the next couple of weeks since the Calais decision came down, including last night, the ACLU and LDF and other partners around the country, but particularly in the south, have had to rush into court. I literally have lost count of how many emergency applications we filed in the last couple of weeks. In some cases, you know, with the Supreme Court last night, issuing this order that changes the rules when voting is already underway in Alabama in the primary election that where election day is May 19th and people are doing early voting right now under the map that now has been vacated by the Supreme Court. And so there's a lot coming at us, you know, also, of course, is currently considering, again, the state of Louisiana's effort to block people's access to Mithipristone medication abortion nationwide, right? So for those of us who are fighting for civil rights and civil liberties, you know, these are tough times. We have a lot of challenges, including in the Supreme Court and in other federal courts. But, you know, I want to just say that those efforts have really borne fruit. The ACLU has filed, I think the count currently is at 184 lawsuits. We have filed since inauguration day last year. And in cases that have already been closed, we've got about a 62% success rate. And in the cases that we're still fighting, you know, we're winning many of those battles and getting real relief from federal courts for people who are harmed by this administration's policies. But that's just one piece of the story. People in these states that are now fighting for democracy after the Supreme Court's decision in Louisiana versus Calais, you know, are packing state houses. Louisiana voters, you know, packed the state house in Baton Rouge a few days ago in order to express their views that we want to be able to vote and have our votes count equally with everyone else's regardless of our race. We want you, the legislature of Louisiana to enact a fair map that gives black Louisiana voters the same weight as white Louisiana voters. People are marching in Tennessee. Just as we file a lawsuit and an application for emergency relief from the federal court, thousands and thousands of Tennesseans are marching in the streets to say we are fighting for the life of our democracy in the United States right now. And, you know, in addition to filing all those lawsuits, the ACLU has trained 87,000 people in Zoom meetings about their rights to protest, you know, what we can do to sustain our democracy and the rule of law and equality under the Constitution. And there's so many places where Americans are making a difference, whether it's lobbying your city government to enact pro-civil rights and pro-civil liberties legislation or taking to the streets to protest what the president is doing. There's so many things that we're all doing in this moment of real challenges, of real struggles, where it feels like the federal government, the executive branch is trying to push us backwards and undo reconstruction and undo the civil rights we've been. Yeah, so well said. And, you know, I think it's also a sobering but importantly honest place to end, which is as great a moment as this was before the Supreme Court to have the president sitting there as essentially the justices through their questions and through their analysis and through your arguments, we're rebuking him and his white supremacy and his attack on our democracy as great a moment as that is in the end, right, it has to be a multifaceted strategy that we're using to stop this because when it comes to the court's decision in the 1965 Voting Rights Act interpretation, in Louisiana case as you say, it's doing the opposite of respecting the tax, it's really undoing what was also a monumental second reconstruction of fight for our democracy and taking a law that took a mass movement to create and undoing it and we've been covering that on the oath in the office alongside your important argument in the birthright citizenship case. And I guess as we wrap up what I'm hearing you say, and I know of course the ACLU has a multifaceted way of defending democracy, but that litigation is part of it and that can inspire what is also a fundamental part which is citizens rising up defending our own rights and in various strategies using politics and democracy to defend democracy. Yeah, and using stories, using history, using the arts, using comedy, COMD-DY this time to tell a story about not just what the Constitution says, but the country that we are hoping to build towards and always trying to do better and to ensure that freedom and equality are lived reality for everyone. What a great place to end. Cecilia Wang, thank you for your efforts, thank you for your amazing argument before the Supreme Court, and thank you for your words about history, the way that our historic fight for democracy inspires our current fight. It's really been a pleasure to have you on the Oath in the Office. Thank you for joining us. Thank you, Corey. Thank you for all your work. Thanks so much. I want to thank Cecilia Wang for coming in and being so brilliant. And Professor, I want to thank you for talking me off a ledge. What is the best way for our listeners to follow you, Corey, and keep up with your work? Well, we have the Oath in the Office substack. We have all over. You can review us. Be sure to subscribe wherever you're listening to us right now. You can watch us on YouTube. And I've got to just add a note of thanks. The ACLU, of course, has been a sponsor of this podcast repeatedly. And to have this amazing litigator, Cecilia Wang, join us and talk about what it was like to be in the courtroom with Donald Trump watching her and pushing back and arguing on behalf of our rights, on behalf of the text of the 14th Amendment, its first section guaranteeing that anyone born in this country is a citizen. It really was a special episode. Amen. And I want to thank everyone who puts the show together, especially Beowulf and Wendy. And I want to thank you, Professor, as always. You guys can hear me every night on Sirius XM Progress or in the mornings on the John Fuglesign podcast. And my book's called Separation of Church and Hate. Professor, thank you so much. I'm going to pleasure John. We will see you guys next time on The Oath and the Office.