President Donald Trump’s executive order challenging birthright citizenship is more than an ineffectual attempt to change the law or redefine the identity of the nation. It represents a calculated move to force a constitutional crisis that could fundamentally reshape American democracy.

As many commentators have noted in the past week, the overwhelming consensus view of the Fourteenth Amendment is that it grants birthright citizenship to anyone born here, except those not under the jurisdiction of U.S. law, such as diplomats, or people invading the nation, if the nation were undergoing an invasion. Beyond the clear language of the constitutional text, there is ample historical evidence that the Fourteenth Amendment was simply codifying English common law on citizenship. Finally, the Supreme Court found precisely all of this in 1898 in United States v. Wong Kim Ark, where it held that birthright citizenship was the law of the land, a position that has remained uncontested. That the law is fairly settled was in full display last week when a district court judge in Washington state called Trump’s gambit a “blatantly unconstitutional order.”

Nevertheless, there has been a concerted effort over the past few years to rehabilitate the opposing view. Talking heads, people at conservative think tanks, legal academics (or at least one legal academic), and politicians have been using their pulpits to say that birthright citizenship is actually not so clearly established.

 

Most of the lines of attack against the consensus view come from insurrectionist (and now disbarred attorney) John Eastman. The thrust of the position is that the Fourteenth Amendment’s “subject to the jurisdiction thereof” language meant to exclude people who owed any allegiance to another country, and so would preclude citizenship to people who had another nationality. Birthright citizenship opponents argue that Wong Kim Ark was about lawful permanent residents, and raise various policy concerns with extending birthright citizenship to others. (It’s noteworthy, perhaps, that a Justice Department attorney arguing in favor of the order’s constitutionality did not raise most of Eastman’s arguments, which are also wrong, but more substantial than the DOJ’s position, which was basically Wong Kim Ark dissent copypasta).

But Eastman is not only responsible for much of the intellectual firepower behind the argument that the Fourteenth Amendment does not grant birthright citizenship. He is also behind the method the Trump administration chose to do end it. He has been arguing for years that Section 5 of the Fourteenth Amendment allows the amendment’s meaning to be interpreted by Congress, and now it seems he believes that it could also be “interpreted” by an executive order.

The attorneys behind the birthright citizenship order must know that the executive order will land in the Supreme Court. One possibility is that they believe their legal Hail Mary will be successful. After all, until the Court decided Trump v. United States last year, the idea that presidents were immune from criminal prosecution for most of their actions in office seemed ludicrous. Some might think that the Trump team is betting that this six-justice conservative supermajority that includes three of his appointees will simply accept another unlikely legal theory at his request.

I believe that this interpretation gives Trump’s team far too little credit. Over the past few days, the push to rehabilitate a contrarian view of the Fourteenth Amendment has kicked into high gear. There has been a political and media blitzkrieg with various Republican actors going on TV to rant about birthright citizenship and call into question the prevailing view. The goal here is not only to legitimize Eastman’s position, but to popularize the position with the American public, and to put the Supreme Court under pressure to agree.

In his classic book, The American Supreme Court, Robert McCloskey articulates that the Court has not only survived but also amassed power by being sensitive to the political winds and never pushing too hard against them. Though under empirical scrutiny McCloskey’s theory hasn’t always proven correct, it still is a valuable prism to understand the dynamics at play in the Court’s decisionmaking.

The Supreme Court is currently facing one of the most acute crises of confidence in its history. One of the main issues is that for the last two decades, liberals in particular have grown disillusioned by the Court’s service as a vehicle for conservative interests. This was made particularly salient after the Court’s Dobbs decision that ended the right to abortion in the country.

If McCloskey is right, then given the Court’s unpopularity, Supreme Court justices must now be very attuned to the sentiment of the country when deciding big, controversial cases. The campaign to question the prevailing view on the Fourteenth Amendment is thus a way to put the Court in a much more difficult position than it seems: It can either uphold clear constitutional precedent and risk Trump’s wrath and public disapproval from conservatives, or it can cave to pressure and destroy its own legitimacy.

For Trump, meanwhile, it’s a win no matter how the Court rules. After all, though the Court has a conservative majority, it is still the one source of political power that is not already under Trump’s total control. The proof of that is precisely that there’s uncertainty as to how the Court will rule. If the Court rules in Trump’s favor, he gets his policy and also deals a heavy blow to the Court’s role as a constitutional check on executive power, because the unconstitutionality of the order is arguably more established in law than recent controversial decisions such as the presidential immunity case or Dobbs. If the Court rules against him, he gets to rail against and delegitimize it, possibly even making it surrender to him.

By forcing the birthright citizenship issue this way, Trump is paving the way for deep and structural regime change. His approach to governance—treating Democratic-controlled states as illegitimate, referring to January 6 defendants as “political prisoners,” refusing to accept electoral defeats—points toward a Hungary-style system where elections exist but outcomes are effectively predetermined. The birthright citizenship order is another step toward this kind of system, using the Court’s own weakened position against it to eliminate institutional checks and balances.

This strategy isn’t new for Trump. He has consistently forced other political actors who were at one point willing to resist to do what he wants them to; to demean themselves and the institutions they represent; or simply to disappear. Former vice president Mike Pence and former congresswoman Liz Cheney, for example, are all but gone from the national scene. Legislators who were once willing to go against him no longer do so, as we saw this week with the confirmation of Pete Hegseth as Secretary of Defense. Even former President Joe Biden, who promised he would not pardon his family members, did so before leaving office because he was afraid of what Trump could do.

The Supreme Court of course holds some responsibility for this situation. Over the past decade, the Court has systematically weakened key democratic protections through decisions on voting rights, campaign finance, and most recently, presidential immunity. Their cumulative effect has been to erode democratic safeguards at a time when they’re needed most.

This constitutional crisis-in-waiting demonstrates how institutional erosion can be self-reinforcing. The Court’s decisions weakening democratic protections have made it more vulnerable to exactly the kind of authoritarian pressure it should be positioned to resist. Trump’s executive order isn’t just about immigration policy or testing presidential power—it’s about accelerating America’s democratic decline by forcing one of its last functioning checks on executive power into an impossible position.