Thursday: The SCOTUS Loss That Could Win the War

Rush Lindell: But what nobody wants to say-the Supreme Court is about to hand the White House a loss on birthright citizenship, and I think conservatives should welcome it. Welcome to the Rush Lindell Show. I'm Rush Lindell. Reagan: And I'm Reagan. We've got a packed hour, and Rush, that opening is going to need some explanation. Rush Lindell: It will get explained. Here's the thing. Trump signed Executive Order 14160 on... On day one, January 20, 2025, courts blocked it immediately, every single one. And now we're waiting on the Supreme Court's ruling in Trump v. Barrera, argued April 1. SCOTUSblog says the court appears likely to side against the administration. Reagan: Right, and we'll walk through exactly why, the domicile argument, what Gorsuch and Kavanaugh said from the bench, and why the legal foundation was always thin. Rush Lindell: Very thin, tissue paper thin, but here's where it gets interesting. Reagan: Yeah. Rush Lindell: A loss might actually clear the runway for something durable. H.R. 569 and S 304 are sitting in Congress right now, the Birthright Citizenship Act of 2025. Reagan: The bills exist. The question is whether Republicans have the will to actually move them. That's a different conversation. Rush Lindell: See, that right there is why she's here. I say opportunity, she says prove it. Reagan: I say show your work. Rush Lindell: We've also got the political theater, Democrats gearing up for a victory lap, and why that celebration might walk straight into a trap, and we'll close with what the conservative roadmap actually looks like after this ruling lands. Reagan: A lot of ground to cover. Let's get into the first segment. Rush Lindell: Supreme Court preview right now. Before we dive in, a quick reminder: we love hearing from you. If you have questions or topics you'd like us to cover, head to the link in the description and submit your question. We read every single one. So here's what's going on right now, and I want you to pay attention. The Supreme Court is about to drop what could be the most consequential citizenship ruling in over a century. Most people think they understand it. Most people are wrong. Reagan: And the case is called Trump versus Barbra. Worth knowing that name. Rush Lindell: Day one of his second term, Trump signed Executive Order 14160. The whole premise, children born here to parents with no lawful status or just temporary status are not citizens. Full stop. Reagan: Every federal court that touched this blocked it uniformly. One judge called it a likely contradiction of a century-old- UNTOUCHED PRECEDENT Rush Lindell: Every Single Court Reagan: Right; now here's the historical anchor: the Fourteenth Amendment, ratified in eighteen sixty eight, says anyone born on U.S. soil and subject to its jurisdiction is a citizen. In eighteen ninety eight, Wong Kim Ark, the Supreme Court applied that to a man born here to Chinese parents who couldn't even naturalize under the Chinese Exclusion Act-that is the precedent. Rush Lindell: One hundred twenty eight years untouched-and yet! Reagan: And yet? Rush Lindell: April first oral arguments. Trump shows up in person. According to CNBC, Reagan: Wow! Rush Lindell: first sitting president to attend Supreme Court arguments, and after he leaves he posts on Truth Social calling America-and I quote-"STUPID" for birthright citizenship. Reagan: Subtle. Rush Lindell: Very diplomatic. Now, SCOTUSblog's Amy Howe covered this in real time, and her read coming out of argument was the court appeared likely to side against the administration. Kavanaugh, Gorsuch, Barrett, Kagan, all surfacing skepticism. Reagan: The government's core argument basically tries to read a word into the 14th Amendment that isn't there. That's where the justices started pressing hard. Rush Lindell: You know what nobody wants to say. The legal theory here was weak from the start, and the question isn't just whether Trump loses, it's what happens after. Reagan: And that is the more interesting argument. Rush Lindell: So here's what I want to dig into next. If the administration knew the text wasn't on their side, what exactly were they arguing? Reagan: So here's where the legal argument fell apart: the Administration's whole theory rests on reading "domicile" INTRO the citizenship clause. But that word doesn't appear anywhere in the Fourteenth Amendment text-not once! Speaker 3: Which is a problem. Reagan: A big one-and Gorsuch landed the sharpest shot on this. According to SCOTUSblog's oral argument highlights, he told Solicitor General Sauer that in none of the ratification debates do parents get discussed. Just at all." His exact words-"The focus of the clause is on the child, not on the parents." The absence is striking. Speaker 4: So you're building your whole constitutional theory around a word that isn't in the Constitution about parents aren't mentioned in the debates. That's a lot of weight on nothing. Reagan: Right; and then Kavanaugh piled on from a completely different angle. SCOTUSblog flagged this, too: "Congress used the identical birthright citizenship language in the nineteen forty Nationality Act. The act, and again in the nineteen fifty two INA, both after Wong Kim Ark. His question to Sauer was essentially, If you wanted a different result, why repeat the same words? Speaker 4: This is the part where I lose my mind. Someone had to know this going in: you sign the order on day one, every lower court blocks it, and now Kavanaugh, your own nominee, is asking why you didn't just write something different? The legal team had to see this coming. Reagan: Look, to be fair the policy goal isn't crazy. Plenty of serious legal scholars think birthright citizenship is worth re-examining. But the mechanism-the executive order route-bypassed every durable path available. Speaker 4: So they picked the dramatic move over the lasting one. Reagan: Exactly. And here's what's worth watching now. Congress has already introduced the Birthright Citizenship Act of twenty twenty-five, both HR 569 in the House and S 304 Speaker 5: in the Senate. Reagan: That's the statutory track, That's the statutory track, not the constitutional. Speaker 4: Which means the legislative pressure is already moving, and that's actually where this gets interesting. Rush Lindell: So here's the thing: the media is going to declare a victory lap when this ruling drops, and here's what they won't tell you: Republicans already have the Next move loaded. Reagan: Right, and the move isn't another Executive Order; it's HR 569 and S 304, the Birthright Citizenship Act of twenty twenty five, sitting in Congress right now-both chambers. It amends Section 301 of the Immigration and Nationality Act directly. Rush Lindell: Exactly; and here's the distinction that matters: amending the INA through statute is not the same as touching the Constitution. Constitution: you do not need two thirds of Congress and three fourths of the States-you need a majority. Reagan: That's the cleaner path. The INA defines what, subject to the jurisdiction thereof, means in statute. Congress has always had that authority; a court striking down an Executive Order doesn't strip Congress from its legislative power. Rush Lindell: A loss at the Supreme Court hands Republicans a clean weapon no more executive order they can mock. In Bach no more day one drama the press can frame as executive overreach. Now it's a vote on the record. Reagan: That's the political pressure point, and it's real. Force every Senate Democrat to stand up and vote to preserve automatic citizenship for children of people who entered illegally. That's a vote they do not want to take. Rush Lindell: No, they do not. Reagan: But, Rush, let's be honest about the obstacle. HR 569 has been sitting in committee since Since January, twenty twenty five, that's not momentum, that's a bill collecting dust. Rush Lindell: Fair; but watch what just happened: Rep Nancy Mace announced on June first she's introducing a constitutional amendment resolution on this-that's the pressure track running in parallel. Reagan: Hmm. Parallel pressure tracks don't pass legislation on their own, though. Republicans still need to find the will to actually bring the statutory bill to a floor vote. Revoke. Rush Lindell: You know what nobody wants to say-the court loss might be the only thing that forces their hand. Right now they can hide behind litigation. That cover disappears the minute the ruling Reagan: Right Rush Lindell: drops. Reagan: -that's a real argument; strip the procedural excuse, and suddenly members have to choose a side. Rush Lindell: Strategic clarity-not a silver lining, a loaded weapon if they pick it up. And Democrats? Oh, they're going to celebrate this ruling. That's where the story gets interesting. So Democrats are already drafting the victory tweet. You can feel it. The moment S. SCOTUS strikes down that executive order, today is a win for the Constitution, a win for families, a win for the America we believe in. Picture the whole production. Reagan: Full podium, American flag backdrop, probably a choir. Rush Lindell: Exactly. And look, enjoy it, but here's what they're not saying out loud. The second that celebration ends, Republicans introduce a clean floor vote on the Birthright Citizenship Act of twenty twenty five, statutory fix, and now every Senate Democrat is on the record. Reagan: Right, because SCOTUS striking down the executive order doesn't settle the policy debate, it just closes one door. Rush Lindell: It closes the messy door and opens the clean one. Now you have to vote, not on Trump's executive order. On whether children born here to people who cross the border illegally should be citizens: vote yes or no, put your name on it. Reagan: That's a very different vote than defending the Fourteenth Amendment from executive overreach. The framing flips completely. Rush Lindell: The framing flips completely; that's exactly right. Reagan: And before anyone thinks this term was a total wash for the White House, SCOTUSblog reported that in late May the court actually sided with Speaker 5: the administration. Reagan: did with the Trump Administration on immigration judges' speech restrictions reversed the Fourth Circuit, so this court is not reflexively anti-Trump on immigration. Rush Lindell: No, it's case by case. The immigration judges' ruling flew under the radar because birthright is the headline, but it matters. Reagan: Right. Rush Lindell: The White House won something real there. Reagan: Which is why the celebration optics are only half the story. The INA angle is what the coverage will completely miss. Mess. Rush Lindell: And that's actually where things get genuinely complicated, because if the court rules on statutory grounds rather than constitutional grounds, Congress could theoretically amend the Immigration and Nationality Act without touching the Fourteenth Amendment. Reagan: Much lower bar than a constitutional amendment. Rush Lindell: Much lower, which opens a whole different set of questions about what comes next. So here's the angle the coverage is completely missing: there were two separate legal tracks in Trump v. Barber, and everyone's only talking about one of them. The Fourteenth Amendment-that's the headline. Reagan: Right, but the challengers didn't just argue the executive order violates the Constitution; they argued it violates the INA, the Immigration and Nationality Act. Section 301(a) of the INA codifies the Citizenship Clause using almost identical Speaker 5: language. Reagan: IDENTICAL LANGUAGE. Rush Lindell: So Congress wrote the same words into statute, then again in nineteen fifty two. Reagan: Exactly; and at oral argument Kavanaugh actually flagged this: he asked whether the court could decide on statutory grounds and avoid the constitutional question entirely. The challengers said, and I'm paraphrasing, "We'd prefer you reaffirm Wong Kim Ark, but we'll take a win on any ground. Speaker 3: Honest answer. Reagan: Now here's why that matters practically: if the court rules on the INA instead of the Constitution, it's not a permanent ceiling. Congress can amend a statute—two thirds super majority to touch the Fourteenth Amendment; simple majority to rewrite the INA. Speaker 3: Hold on; that's a completely different political calculation. Reagan: Night and day." But here's where I push back on anyone who thinks it's a "clean" fix. Fix. Legal scholars have noted that any statutory rewrite would face its own constitutional challenge immediately: you change the INA, the courts will ask whether the new version violates the Fourteenth Amendment anyway, so you haven't avoided the constitutional question, you've just deferred it. Speaker 3: You know what nobody wants to say: the media is covering one court room and missing the second one. The INA track is where the legislative math actually lives. Lives! Reagan: And the public doesn't know that distinction exists! Speaker 3: Because it's easier to say "Supreme Court rules on citizenship" than explain that there are two legal frameworks running in parallel with completely different consequences depending on which one the Court uses. Reagan: And those consequences get very real, very fast. We're talking about hundreds of thousands of newborns a year. That number matters, and it connects directly to why this fight started. murdered. Speaker 3: Which is exactly where we're going-the actual scale of this and what the White House has been saying about it. So here's the real world number. Rush Lindell: number behind all of this legal argument. According to Rep. Mace's June 1st announcement, an estimated 250,000 to 320,000 babies are born on U.S. soil annually to mothers here without legal status. Reagan: Wow. Rush Lindell: That's not a talking point. That's the scale of the policy problem driving this whole fight. Speaker 3: And that number matters because it separates two very different questions: whether the border situation is a real problem, it is. It is and whether Executive Order 14160 with the right constitutional fix for it. Those aren't the same question. Rush Lindell: The White House has been consistent on this. The order was always framed as border security strategy—not just a legal argument about constitutional text. The frustration underneath it is completely legitimate. Speaker 3: I don't dispute the frustration. The White House data is real, too—negative net migration in twenty twenty five for the first time First time in half a century: over 2.5 million people who've left, whether deported or self-deported. Those are measurable wins. Rush Lindell: So the border enforcement record is solid. Nobodys taking that away. Speaker 3: Right, but heres where I push back. You cant use those enforcement wins to paper over the fact that the executive order was constitutionally shaky from day one, border security policy and citizenship policy. are different legal and moral questions: conflating them is intellectually sloppy. Rush Lindell: Fair! The Administration had a legitimate grievance and chose a dramatic vehicle that the courts blocked at every single level. Speaker 3: Eight times, basically. Rush Lindell: Eight times! And heres the thing that actually gets me: the frustration didnt require a legally fragile executive order. The numbers may cite it: a quarter million to three hundred twenty thousand babies annually? Really those are exactly the figures that make a statutory argument to Congress. You bring that number to the floor and you force a vote. Speaker 3: Thats the stronger play-you use the scale of the problem to build the case for legislation, not an executive order that the courts were always going to block. Rush Lindell: The grievance is real-the vehicle just has to match the remedy-and Congress is that vehicle. That's the conversation coming up next. Speaker 4: So the legislation already exists, S304 in the Senate, H.R. 569 in the House. Senator Lindsey Graham introduced the Birthright Citizenship Act of 2025 in January. The bill amends Section 301 of the INA directly, no constitutional amendment required. Speaker 3: And that's the crucial distinction, Rush. Amending the INA takes a simple Senate majority if Republicans move on the filibuster. Touching the Fourteenth Amendment takes a two-thirds super majority. Those are two completely different mountains. Speaker 4: Right. So here's what nobody wants to say out loud. A ruling against the executive order coming in the next few weeks drops into the middle of a Congress where immigration is already front mind. That's not a loss. That's a starting gun. Speaker 3: I'd add one layer of realism. The bill has been sitting in committee since January 2024. twenty five, with basically no movement." That's not a procedural hiccup; that's a will problem. Speaker 4: There. And here's the thing: political will is not fixed. A Supreme Court ruling that hands Democrats a headline changes the pressure calculation fast. Suddenly every Senate Republican has to answer: You lost at SCOTUS. You have the votes. What are you doing? Speaker 3: That's where the framing flips: they can't hide behind the executive order anymore. more; the court took that off the table; now it's a straight up or down legislative question. Speaker 4: And you know what nobody wants to say? Congress has been using the executive order as an excuse for not doing the hard work. The bill is drafted, the argument is made, the policy problem (quarter million births a year) is documented, what's left is a vote. Speaker 3: Which is exactly where this debate should have started-the Fourteenth Amendment... Doesn't have to be the battlefield if Congress does its job. Speaker 4: Stop treating the Supreme Court like the finish line. Speaker 3: Right. Speaker 4: Congress is the field. The Birthright Citizenship Act is the play. Run it! That's a wrap on today's show and look, if there's one thing we hammered home, it's this: the executive order was always the wrong tool, a legally fragile day one move Speaker 3: when Mm hmm. Speaker 4: a more durable path was sitting right there in Congress the whole time. Speaker 3: And that's the part worth sitting with. SCOTUSblog reported the court appears likely to rule against the administration in Trump v. Ark. Ark, if that happens, the real question becomes whether Republicans have the will to move the Birthright Citizenship Act of twenty twenty five through the legislative process. Speaker 4: That's exactly right. Gorsuch's observation during oral arguments said it all. Speaker 3: Yeah. Speaker 4: The focus is on the child, not the parents. The absence of parents in the ratification debates is, and I'm quoting him here, striking. Speaker 3: Hard to walk that back. Speaker 4: You can't. Bottom line, a loss at the Court might be exactly the pressure Congress needs to finally act. Speaker 3: Rush, great conversation today. Speaker 4: If you learned something, share this episode. Subscribe, leave us a five star review, tell a friend. New episodes drop every weekday. We'll see you next time. Thanks for watching!