Unchosen Path in Trump v. Barbara

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

My essay begins:

There is a long-standing axiom that the Supreme Court “will not decide a constitutional question if there is some other ground upon which to dispose of the case.” This axiom did not appear in Chief Justice Roberts’s reasoning in Trump v. Barbara. It is often described as the Court’s “usual practice” to resolve disputes on statutory grounds in order to “avoid the unnecessary resolution of constitutional questions.” In , however, the statutory issue received no attention in the Chief Justice’s opinion. Nor did it attract meaningful engagement from any of the dissents. Justice Kavanaugh was the sole Justice who treated the statutory arguments with seriousness, and he regarded them as dispositive.

Resolving Barbara on statutory grounds would have allowed the Court to sidestep the broader constitutional question. It might also have provided a path toward broader agreement among the Justices. Although debates continue about the original public meaning of the Fourteenth Amendment’s Citizenship Clause, the interpretation of Section 1401 at the time of its enactment is comparatively easier to settle. It is well-established—though perhaps not universally observed—that the Court should “interpret statutory terms to ‘mean what they conveyed to reasonable people at the time they were written.” As the Court reaffirmed in Loper Bright Enterprises v. Raimondo, “every statute’s meaning is fixed at the time of enactment.”