Friends,

Today, the Supreme Court struck down Trump’s Day 1 executive order canceling the right to birthright citizenship. Good. That executive order declared that children born in the U.S. would not be considered citizens if their parents were living in the country illegally or were visiting the country on temporary visas.

The executive order never took effect. It was quickly blocked by multiple lower courts because it appeared to directly conflict with the 14th Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The Trump regime appealed the lower-court rulings, contending that the 14th Amendment’s citizenship provision had been misunderstood for more than a century. The administration argued that the drafters of the amendment were focused on guaranteeing citizenship for the children of formerly enslaved people — and that the amendment was never intended to extend citizenship to the children of people who weren’t living in the country legally.

Trump and his solicitor general, who argued this case before the court, also said that narrowing birthright citizenship was necessary to prevent “birth tourism”— the practice of immigrants coming to the U.S. to give birth here and obtain citizenship for their child.

Trump has been vowing to try to change the law since entering politics in 2015, arguing the 14th Amendment was written specifically to enshrine the rights of freed slaves. His critics have countered that it was always designed to apply to the children of immigrants, too. An 1898 Supreme Court decision confirmed that U.S.-born children of immigrant parents are entitled to American citizenship.

Today, Chief Justice John Roberts wrote that the deeply rooted understanding that virtually everyone born on American soil is automatically a U.S. citizen was enshrined in the Constitution with the passage of the 14th Amendment in 1868: “Citizenship, then and now, was the right to have rights — to freely participate in our political community,” Roberts wrote. “The Framers of the Fourteenth Amendment extended that promise to every free-born person in this land. We keep that promise today.”

In another era, this would have been a no-brainer. No constitutional lawyer I know thought the court would decide otherwise. The lower federal courts had consistently and unanimously ruled against Trump.

Had Trump won, it would have probably caused panic among recent immigrants and their families. Although Trump has insisted his policy would apply only to future births, it was far from clear that the logic of any win for Trump wouldn’t apply retroactively if a future president (JD Vance? perish the thought) wanted to go there.

What I find troubling is that the decision was 5 to 4 rather than unanimous or nearly so, as it should have been.

Only five of the nine justices ruled against Trump on constitutional grounds. Brett Kavanaugh dissented on statutory grounds; while agreeing that Trump’s executive order was unlawful, he argued that the court should have resolved the case under federal immigration law rather than the Constitution.

The court’s three most conservative justices — Clarence Thomas, Neil Gorsuch, and Samuel Alito — dissented. Thomas wrote for the group: “The Court adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support.”

Pure and utter claptrap.

Thomas, Gorsuch, and Alito are so far to the right of America that their views on this case and other matters should be presumed bonkers. Yet what’s particularly sobering is that Trump is only one justice away from having a Supreme Court majority that would have gone his way on this absurd reading of the 14th Amendment.

Clearly, the Supreme Court must be changed — either by expanding the number of justices or by invoking term limits on Supreme Court justices. The Constitution would permit both remedies.

Perhaps the best thing about today’s majority decision is that it’s a direct repudiation of Trump, who has long taken a personal interest in the issue. During his 2024 campaign, he made curtailing birthright citizenship a key element of his immigration platform.

When the high court heard arguments on the case in April, Trump took the unprecedented step of showing up in person for the hearing, making him the first sitting president ever to attend a Supreme Court argument.

For the court to so directly reject Trump’s position today is surely a humiliation for him. But then again, humiliation requires a capacity to feel shame, and he has repeatedly shown he has no shame.

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Friends,

Last week’s election results in New York City have shaken the Israeli-American alliance.

The sharp decline in Israel’s popularity over its prosecution of the two-year war in Gaza had already strained the relationship. Yet in those New York elections last week, three pro-Palestinian candidates backed by Mayor Zohran Mamdani, a harsh critic of Israel, defeated moderates in hotly contested Democratic congressional primaries.

These election results did not reflect a rise in antisemitism. After all, New York is home to the largest Jewish community outside of Israel. They reflected an upsurge in sympathy toward the Palestinian cause and rejection of Israel’s response to the Hamas-led attack.

To be sure, the Hamas attack was heinous and morally repugnant, regardless of whether you sympathize with the plight of the Palestinians. But Israel’s response to it — and the continuation of military aid to Israel in the future — is sure to be an issue in the upcoming midterm elections, in subsequent Democratic presidential primaries, and in general elections of 2028.

So today’s Office Hours examines your thoughts about Israel, its culpability, and what America’s future relationship to Israel should be. It’s a difficult question for many of us, but I think it important to discuss.

Herewith, the major positions on the subject as they’re now being expressed in American politics.

1. Israel is not culpable in the deaths of tens of thousands of Palestinian civilians, and the U.S. should continue to support Israel.

People who hold this view say that Hamas’s brutal attack on Israel on October 7, 2023, forced Israel’s response, which was understandable and necessary. Unless Israel fights to protect itself and its citizens, its very existence is threatened. This existential threat requires all the firepower Israel possesses. When others are committed to reducing Israel to rubble and murdering Jews living in Israel, the only conceivable response is to try to eliminate that threat by any means possible. So the United States should continue to ally itself with Israel, and continue to help Israel militarily.

2. Benjamin Netanyahu and his right-wing government of Israel are responsible for the deaths in Gaza and the West Bank, and the United States should do whatever it can to end Netanyahu’s reign so that a “two-state” solution can be sought.

By this view, neither Hamas nor Israel as a whole are responsible for the deaths in Gaza or Lebanon, nor even the aggression by Israeli settlers in the West Bank. The responsibility lies with Benjamin Netanyahu’s right-wing extremist government in Israel. The proper role for the United States at this juncture is to do whatever we can to remove Netanyahu from power and encourage a new regime to seek a “two-state solution” in which Palestinians have their own homeland.

3. It’s not just Netanyahu. Israel as a whole is to blame for genocide in Gaza, and the United States should stop supplying Israel with military aid and equipment and stop guaranteeing its security.

Two of the candidates who won in New York last week — Brad Lander and Claire Valdez — accuse Israel of genocide in Gaza and want the United States to stop supplying it with arms. Many who hold this view want to end the military security alliance between Israel and the United States, regardless of who’s in charge of Israel. (In a Pew survey in April, 60 percent of Americans say they hold an unfavorable opinion of Israel — up from 42 percent in 2022.)

4. Israel is not only culpable but it should not exist because it is a religious state that relegates non-Jews to second-class citizenship, and has no legitimacy in modern society.

One of the candidates who won last week in New York — Darializa Avila Chevalier — has questioned Israel’s right to exist. She is not alone. Since Israel’s attacks on Gaza, a number of Americans have questioned the legitimacy of a Jewish state. They argue that it relegates inhabitants who don’t hold its religious views to second-class citizenship, creating in effect an apartheid state. Some go further and argue that Israel rests on stolen lands (in contrast to Zionist narratives that emphasize the multi-millennial historical and biblical connection of the Jewish people to the Land of Israel and the legal purchase by Jewish organizations of vast tracts of land from willing sellers, including local inhabitants and absentee Arab landlords.)

***

Hence, this week’s Office Hours question: How should the United States treat Israel in the future?

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Friends,

Today’s Supreme Court decision ending the independence of independent regulatory agencies, and directly overruling a court precedent, was justified by a pernicious idea advocated by the conservative Supreme Court majority: that the framers of the Constitution envisioned a so-called “unified executive.” In fact, the framers’ focus was to prevent a United States president from becoming too powerful — like the king they were displacing — so they could not have sought a strong, centralized executive branch. Please see below.

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