Constitutional Law

“Conservative justices constantly say the Constitution should be interpreted based on history and its text and its original meaning,” writes Dean Erwin Chemerinksy. “All of these sources make the Trump executive order on birthright citizenship unconstitutional. The Supreme Court decision should be unanimous in striking it down.”

“Ever since the Supreme Court recognized birthright citizenship in 1898,  generations of Americans have accepted that the United States Constitution encodes an absolute rule that if someone is born on U.S. soil, they are a citizen, end of story,” writes Professor Amanda Tyler. “But fringe elements of American society have repeatedly tried to attack this fundamental rule.” 

“A lot of people, when Trump first started talking about it, thought this is crazy,” said John Yoo, a law professor at the University of California, Berkeley, School of Law, who was a top lawyer in the George W. Bush administration. “But in the intervening years, a lot more serious people are taking it seriously.” Even as the legal debate has grown more robust, many legal experts, including Professor Yoo, remain confident that a majority of justices across the ideological spectrum will rule against Mr. Trump’s quest to redefine citizenship.

The Supreme Court case “could upend her life’s work,” said Catherine Lahmon, executive director of the Edley Center on Law and Democracy. “It has potentially devastating consequences for the country. The stakes couldn’t be higher, and she’s eyes wide open about what that means. And, to her credit, this is not just academic for her.”

“I think that this country has always had an ongoing debate about what our immigration policies should be and this issue, for better or worse, has often been connected to those broader debates,” said Amanda Tyler, a constitutional law scholar at Berkeley Law.

“The fate of the SAVE Act in Congress is uncertain despite the strong pressures from Trump,” writes Dean Erwin Chemerinsky. “But if enacted, it is sure to be challenged in the courts. While requiring photo identification for voting would likely be upheld, requiring proof of citizenship to register to vote seems clearly unconstitutional.”

Professor Amanda Tyler’s brief in Trump v. Barbara, the birthright citizen case, is cited in Boston Globe opinion piece.

“Calling it a constitution is entirely rhetorical,” Erwin Chemerinsky, the dean of U.C. Berkeley’s law school, said, since, although you can call anything a constitution—a city charter, a corporate mission statement—the word “constitution” signifies to most people a popularly written and ratified document that limits what a government can do.

“Under the First Amendment, the press decides how it wants to report the war. The government cannot control what the press says,” explained Erwin Chemerinsky, the dean of the UC Berkeley School of Law. Chemerinsky’s fear, he continued, is that the worse the war goes, “the more it [the administration] might escalate pressure on the media.”

Dean Erwin Chemerinksy and Professor Prasad Krishnamurthy weigh in on Trump v. Cook and whether the President has the authority to remove a Federal Reserve Board governor.