Maybe, if the country is lucky, the Supreme Court has decided to hear the case of Trump v. Barbara because it wants to reiterate something that the Constitution, federal law, and its own previous rulings have already clearly said, just more loudly, so that even the President can hear it: virtually all babies born in America are American citizens. The case is Donald Trump’s appeal of a lower-court ruling that threw out an executive order he issued in January, in which he declared that a large number of babies born here each year—estimates range to the hundreds of thousands—are not citizens. Why? Because he said so. When the Justices announced, on Friday, that they would hear him out, rather than simply turning the appeal down flat, they didn’t give an explanation. It takes four Justices out of the nine to grant cert (the technical term for taking a case), but their motives might be mixed. Some conservative Justices may want to let the President down easy, with a display of deference before ruling against him, and some liberals may want the opportunity to come down hard in defense of the babies. Maybe the Justices, who are not without vanity, just want to expound a bit. Perhaps they’ve already worked out some resounding phrases in their heads.

All those possibilities would be preferable to another one: that a critical mass of Justices has become convinced that there is a question about birthright citizenship, and that they are willing to upend our long-shared understanding of what it means to be born an American. With this Court, at this moment, it would be reckless to ignore that prospect. Ted Cruz and eight other Republican senators have submitted an amicus brief that largely supports Trump’s order; so have the attorneys general of twenty-four states. Even the more benign rationales for the Supreme Court taking the case carry with them the cost of leaving the impression that birthright citizenship is an unsettled matter. The wait for a ruling in Trump v. Barbara—which will likely come in June or July, after oral arguments this spring—will be one more destabilizing element in our already chaotic national scene.

Another case related to the executive order, Trump v. CASA, was decided by the Court in June, but that one did not address the substance of the order. Instead, it was about whether lower-court judges could use what are known as universal, or nationwide, injunctions to stop it from going into effect. The Court said that they could not. (Trump v. Barbara is a class-action suit, on behalf of babies born after the executive order; this, along with a case brought by Washington and other states, has allowed judges to put a hold on the order even without a universal injunction.) When CASA was argued, the executive order’s opponents suggested that the Administration might never appeal its various lower-court defeats, because it must know that it would lose—the order was so clearly unconstitutional. “If I were in your shoes, there is no way I’d approach the Supreme Court with this case,” Justice Elena Kagan said at the time to D. John Sauer, the Solicitor General, who argued that case for the Administration. But, when Justice Gorsuch asked Sauer if he would appeal if Trump lost in the lower courts, Sauer said, “Absolutely.” And he has. The question now is what, if anything, Trump thinks he can win.

The big prize for the White House, of course, would be an end to birthright citizenship, which many conservatives and opponents of immigration have come to deeply resent, with talk of “anchor babies” and demographic doom. Unfortunately for them, birthright citizenship is not some misty, novel concept or expansion of ill-defined rights. It is the hard promise, in plain language, of the Fourteenth Amendment, which gave citizenship to previously enslaved Black Americans but was recognized from the beginning as having a broader effect. The citizenship clause reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The opponents of birthright citizenship hang their arguments, such as they are, on the words “subject to the jurisdiction thereof.” In 1898, which was only thirty years after the amendment was ratified, the Supreme Court ruled definitively on the meaning of that phrase in the case of Wong Kim Ark, a man born in California to Chinese immigrants who were precluded from becoming citizens by the Chinese Exclusion Act. The Court ruled that the only babies born in the U.S. but not “subject” to its jurisdiction in this sense were those born to “foreign sovereigns” or diplomats (for example, if a French ambassador happened to give birth in the U.S.); or those born on a foreign-government-owned ship within U.S. territorial borders; or those born to “enemies within and during a hostile occupation of part of our territory.” The “single additional exception,” the Court said, was the case of children born to certain Native American tribes, based on treaty relations that they then had with the federal government.

The Native American exception was, at the time, the most consequential, and had its own dark history. It was, however, for the most part done away with as a result of the Indian Citizenship Act of 1924. One fascinating aspect of Trump v. Barbara will be seeing what Justice Neil Gorsuch—a conservative who is also, somewhat idiosyncratically, an expert on and champion of tribal legal rights—makes of Wong Kim Ark’s legacy. In sum, Wong’s was a landmark case, not an obscure one, and the Court referred back to it in the decades that followed; its majority opinion in a 1957 case, for example, notes that a baby born to parents in the United States illegally “is, of course, an American citizen by birth.” Legislators shared that understanding of birthright citizenship when Congress incorporated the Fourteenth Amendment’s language into federal law, in 1940 and 1952.

Trump’s executive order represents a complete break with that history. It says that a baby is not a citizen if the mother has no legal status, or if her status is legal but only temporary (for example, if she is on a work or student visa), and if the father is not a citizen or legal permanent resident. Incredibly, the Administration, in its petition to the Supreme Court, argues not only that the order is legal but that the Court can uphold it without overruling the Wong Kim Ark precedent, which it claims has been “misread” for more than a hundred years.

In defense of this indefensible position, the Administration notes that Justice Horace Gray, who wrote the majority opinion in the case, mentioned a number of times that Wong Kim Ark’s parents were “resident” or “domiciled” in the United States. But, as the lawyers for the Barbara babies have argued, Gray went further, saying that anyone residing in the U.S. is clearly subject to its jurisdiction and, importantly, that those here just temporarily are subject to it, too. (Again, the narrow exceptions had to do with diplomats, invaders, and Native Americans.) If you are in the U.S. just temporarily, as a tourist or a student, say, you are still bound by American laws and the government’s authority.

Yet the Administration not only acts as if residency is a magic condition but offers a completely illogical and contradictory definition of what residency is. If parental residency is a requirement, then Trump’s lawyers are making a pretty good case for the citizenship of babies whose parents have lived established lives in this country for years or decades—whatever their legal status. But the Administration’s brief slips between the terms “resident” and “lawful permanent resident,” as if they meant the same thing. And if a parent acting unlawfully, perhaps by staying in the U.S. despite a deportation order, precludes a baby’s citizenship, why are the children of native-born criminals unquestionably citizens? (Actually, one might worry about how Trump would answer that question.)

For example, Sarah (as she is known in Court papers), a baby who is one of the parties in Trump v. Barbara, was born in Utah earlier this year to a mother from Taiwan who has lived in the United States for more than a decade and has a student visa. The idea that Sarah is not subject to the jurisdiction of the United States is absurd on its face. Indeed, this Administration has argued that noncitizens are in some ways hyper-subject to its jurisdiction—that it has more of a right to monitor them and limit their freedoms than it does in the case of citizens.

Still, the focus on residency and legal status may point to a possible consolation prize for Trump in this litigation. He may not end birthright citizenship across the board, but perhaps he can turn the various, differently situated groups affected by his executive order against one another—with parents who are holders of H-1B visas arguing that they should not be grouped in with parents who have no legal status; people who arrived here as children saying that they are more clearly resident than students or people with temporary protected status; and everyone trying to avoid being connected to a country with a travel ban. There is enough division already without such quarrels.

At the same time, Trump’s executive order would affect everyone in America, not only immigrants. How is any baby supposed to prove the citizenship or legal status of its parents? In the months since the CASA decision, the Administration has put together some “guidance” to help answer that question; it’s an unhelpful mishmash of talk about hospitals collecting the parents’ Social Security numbers to check citizenship status (an imperfect system, particularly for green-card holders) when the babies are born and about the production of U.S. passports (which only about fifty per cent of Americans have). Ominously, there is a reference to resolving problems via a national 800 number that will connect parents to “updated Interactive Voice Response (IVR) technology to route them to a self-service option.”

Another possibility is that the Supreme Court could definitively throw out the executive order—but do so in a way that leaves room for Congress, though not the President, to redefine the meaning of the citizenship clause. Or the Court could chip away at the edges, perhaps with some ambiguous language deploring so-called “birth tourism.” At this rate, the Administration’s next move might be to try denying citizenship to babies born in neighborhoods that it says are under occupation by foreign gangs. That Trump was able to push the litigation as far as he has is, in itself, a victory for those who have long campaigned to undermine birthright citizenship. With Trump v. Barbara, the Supreme Court has made itself a part of the fight. The Justices will now have to either stand by the American babies whom Trump wants the country to disown, or join him in abandoning them. ♦