The Nullification Crisis Is Here
Beholding the Link Between Birthright Citizenship and Voting Rights
Dear Reader,
In Louisiana v. Callais, the Supreme Court went mad. It nullified the Voting Rights Act of 1965, Allen v. Milligan, and many other other Equal Protection Clause cases that once maintained the ordinary majority-minority asymmetry of Equal Protection Clause review. By nullifying several cases and a federal law to vindicate majority-rule as a fundamental right, Callais categorically unsettled Cooper v. Aaron’s enforcement of the iconic decision in Brown v. Board of Education.
Then, on August 6, 2026, President Trump issued Executive Orders 14418 and 14419 targeting children born to birth-tourist parents after Trump v. Barbara held that birthright citizenship “includ[ed] those foreigners here merely on a ‘temporary sojourn.’” No new statute was passed by Congress, nor was there any new wave of birth tourism or even propaganda attesting to any new circumstance justifying the President’s apparent defiance of Barbara. Executive Orders 14418 and 14419 imply that the President believes he has an inherent power to re-litigate settled law immediately after it is settled by the Supreme Court, like the Governor of Arkansas did after Brown partially overruled Plessy v. Ferguson.
These orders also single out Samoan Nationals and potentially those born in the Northern Mariana Islands as precluded from the benefits of birthright citizenship. Meanwhile, Barbara appears to require reconsideration of cases like Tuaua v. United States and Fitisemanu v. United States for potential reversal to respect the rights of those born in American Samoa to U.S. citizenship. If Tuaua and Fitisemanu are not reversed according to the Fourteenth Amendment, the constitutional rights of the inhabitants of Puerto Rico, the American Virgin Islands, Guam, and Washington, D.C. may similarly be ignored or openly violated regarding voting rights, the privilege of habeas corpus, or any other issue regarding fundamental rights according to the President’s apparent theory that these places are not constitutionally within the United States.
The President’s theory, that appears to underlie Executive Orders 14418 and 14419, is that the U.S. Constitution does not apply in U.S. territories. This issue seems to have been already argued and decided in Loughborough v. Blake, which involved the question of whether the territories and Washington, D.C. could be taxed even when they have no representation in Congress. In Loughborough, the Supreme Court held that:
The District of Columbia, or the territory west of the Missouri, is not less within the United States than Maryland or Pennsylvania, and it is not less necessary, on the principles of our Constitution, that uniformity in the imposition of imposts, duties, and excises should be observed in the one than in the other.
The President’s apparent new plan to illicitly repatriate children of persons accused of birth-tourism could have disastrous effects, including the expulsion of extremely valuable talents from pouring themselves into the American economy in the near and distant future. For example, significant talents, like the Australian-American actress Nicole Kidman who was was born in Hawaii to Australian parents, may not choose to return to America to participate in an extremely lucrative career but-for the open door bestowed by U.S. birthright citizenship. If Executive Orders 14418 and 14419 are not checked by the courts, their potentially severe economic consequences may materialize decades later, when magnificent talents born here choose to spend their talents in countries that grant easier access and pathways to belonging.
Unfortunately, Trump v. Barbara is not over. Its practical effect on U.S. immigration and naturalization will now likely be decided according to the question of whether Cooper v. Aaron still applies after Callais. As Callais reasoned, there may be no compelling interest to justify the Court’s enforcement of Barbara. Perhaps, the President has the dispensation powers of a king, upheld in Godden v. Hales, to ignore the constitution and the laws, pro bono publico, but, if the Court decides he does, it must explain why Cooper v. Aaron was wrong.
Cooper enforced Brown in Little Rock, Arkansas by rejecting the attempt of the Governor of Arkansas to nullify the judicial enforcement of federal law. For decades, Brown was considered a touchstone of U.S. constitutional review and an example of what the Supreme Court can do to create uniform changes in American society. Callais marked the official abandonment of Cooper’s holding: that avoiding outright nullification is a compelling reason to enforce compliance with Court orders.
After Callais, a party must have a compelling interest as defined by Callais before a State would need to comply with a lower Court order to enforce the Voting Rights Act of 1965. Callais added many conditions including that the order address an intra-party claim of discrimination that is supported by proof of actual intent to discriminate. The narrowing of any potential circumstance when a State would need to comply with an order to enforce Section 2 of the Voting Rights Act of 1965 effectively nullified the federal statute without directly striking the statute down as void.
The effect of Callais’ attack on enforcement nullified several judgments in line with Allen v. Milligan’s old vindication of statutory stare decisis. As a direct result, Allen was subsequently stayed in the shadow docket while the Court basically re-decides Allen as though its previous decision mandating a supercharged form of stare decisis did nothing to protect stare decisis. The next stage of Barbara litigation will involve the judicial enforcement of a constitutional decision, technically without the travesty of “supercharged” stare decisis symbolized by Allen.
Yet, the individuals potentially affected by the President’s new proposal that the Court simply refuse to enforce Barbara include individuals whose natural citizenship is both statutorily and constitutionally protected. If Cooper does not stand for the enforcement of the constitutional precedent in Barbara, then Cooper is completely dead. If the Court leaves Barbara unenforced in the face of of Executive Orders 14418 and 14419, then the President may be officially under no obligation to execute any law, statutory or constitutional, despite the separation of powers, the Take Care Clause, and the President’s Oath of Office to the contrary.
Another complexity, however, is the potentially non-precedential nature of the shadow docket (i.e., the equity docket). Enforcement of the law is ruled by equity, which is not necessarily controlled by common law, and, therefore, is not necessarily precedential. So the Court’s denunciation of universal injunctions in CASA, Inc. v. Trump was not apparently followed in D.V.D. v. DOD and likely may not be followed in League of Women Voters v. Trump in response to Executive Order 14399, regarding mail-in voting systems, so it may be impossible to declare Cooper 100% dead or 100% alive — at least, in the equity docket.
It always was the nature of equity to be exceptional, as governments generally should be trusted to follow the controlling laws and rulings of the land. Perhaps this means the nullification crisis is no crisis, but merely what happens when the government goes berserk due to a treacherous Presidential refusal to execute the laws. The answer is apparently political: to impeach, remove, and prosecute the President and/or his officers for what appears to be corruption and treason by fraud.
But the U.S. Supreme Court is too openly contradictory in its recent uses of equity to be considered innocent here. Many questions about the nature of equity and its proper uses loom large. As Congress continues to be paralyzed by cowardice and greed, the Court will almost certainly be forced to navigate unprecedented pressures created by a corrupt and potentially treasonous Presidential Administration that the American judiciary was not designed to handle.
Yours Cordially,
Joshua J. Schroeder, Esq.