US Supreme Court Upholds Birthright Citizenship Despite Presidential Challenge
A President Who Calls the Court’s Bluff Must Bring More Than a Pen
Defying a recent judgment on birthright citizenship without the arms to enforce that defiance is not princely boldness but a rehearsal of weakness in public view.
A president loses in the highest court on birthright citizenship, then returns from the Oval Office to announce fresh executive orders "again" limiting it, this time banning birth tourism and widening the class of parents whose children are denied the right. He criticises the Court’s rejection of his earlier bid and, as one lawyer notes, confronts a rule he is said to lack power to change once the child is born. The legal question is for jurists. My concern is the effectual truth. Here I see not a constitutional treatise but a contest of powers, where one head of an institution chooses to call another’s bluff before the whole people.
When a ruler behaves like this, I first ask what preserves him. His survival does not depend on winning an argument in the law books, but on keeping the reputation for strength that feeds his following. Immigration, and now birth tourism, serve as his battlefield because they move passions, offer numbers one can recite, and furnish enemies that do not vote. If the Court has just dealt him a blow, then necessity pushes him to show he is still to be feared, that he can act "immediately" in response. A prince ruled by sermons would submit; a prince ruled by his position must attack.
In The Prince I compare fortune to a river that in flood sweeps away those who did not raise dykes in fair weather, noting, in W. K. Marriott’s translation, that "fortune shows her power where valour has not prepared to resist her." Here fortune appears in the form of a Supreme Court upholding birthright citizenship after a century and a half, closing one legal channel. Virtù for this president would have meant preparing a course consistent with that likely judgment. Instead, he chooses frontal defiance, not by amending the law with broad support, but by reinterpreting it alone. When dykes are impossible, men build rafts; this order is a raft.
The question then becomes: what arms defend this raft? An executive order is ink on paper until it passes through officials who must enforce it and judges who can halt it. The same Court that ruled against his prior attempt still exists; the same lawyers who say the matter is settled will hurry to challenge the new move. In my time I warned that unarmed prophets fail. Arms now are not condottieri but durable majorities in institutions, revenues to reward obedience, and administrators who fear you more than your enemies. From what little is reported, I see a command, but not yet the enforcement coalition that makes a command bite.
Yet the appearance of arms can itself be a weapon. Most people judge by the eyes, not the hands. To those who favour stricter borders, the image of a president denouncing a 150‑year‑old policy and "taking care of it now" from the Oval Office has its own power, even if the courts later strike him down again. He gains the glory of the attempt and can blame judges for the failure of its execution. This is the politics of spectacle. As I wrote then, men are moved more by the things that seem than by the things that are, and a wise ruler calculates with that weakness of theirs.
There is, however, a line between using appearances and being consumed by them. A prince may wish to be feared, but he must avoid hatred, which ripens when he seems to attack established rights without necessity or lawful process. Birthright citizenship is not a minor regulation; it is described as a policy of a hundred and fifty years, now reaffirmed by the highest tribunal. To strike at it openly, after losing there, risks uniting institutional elites against him: judges, lawyers, administrators, even those who might share his concern over abuses but fear the precedent of defying the Court. When you call another power’s bluff and it is not a bluff, you have advertised your own limits.
Some will praise this president’s refusal of the middle course, that cowardly path I have often condemned. But to shun the middle does not mean to despise prudence. The bolder way, when confronting a strong court, is not a solo order likely to be enjoined, but a long campaign to reshape the laws and the understanding of them, arming oneself with allies inside the very institutions one must bend. From the scant facts, this seems less like founding "new modes and orders" than staging an operational defeat as a rhetorical victory. A prince may survive on spectacle for a time, but free institutions endure when spectacle yields to law.
From the works cited
- The Prince — Virtù versus fortuna — the raging-river figure: preparation in fair weather is the whole difference between the drowned and the dry.
- The Prince — Arms of one's own versus mercenaries and auxiliaries: power borrowed is power owed, and it will be collected at the worst moment.
- The Prince — The economy of violence and the feared/loved calculus: better feared than loved if one must choose, but never hated — fear rests on the prince's will, love on the fickle will of others.