Could birthright citizenship realistically be relitigated over and over?
I’m mainly interested in this from an outcome perspective. I realize this touches on policy, but I don’t think it’s purely a policy discussion, so I decided to post it here. If the mods disagree, I’m happy to delete it or accept its removal.
Vice President JD Vance has suggested that Republicans could relitigate the birthright citizenship issue in the future and potentially reverse it.
I suppose that could work if, at some point, one or more of the justices who uphold birthright citizenship retire and are replaced, creating a new majority.
But it also seems to me that, if that happened, a future Court with a different majority could simply relitigate the issue again and reverse it back. (I realize this could happen even without a “liberal majority”; I’m just using that label as shorthand.)
I don’t see why that future Court would necessarily refrain from overturning the hypothetical precedent Vance is hoping for out of respect for stare decisis. It could just as easily argue that the earlier decision was itself the break from longstanding precedent, and that recognizing birthright citizenship had been the governing rule for many decades before Trump v. Barbara. (Even if the hypothetical new precedent had been in place for several years by then, I’m not sure that alone would stop a future Court from relying on the longstanding understanding of birthright citizenship and overruling it.)
Also, regardless of where people here come down on the merits, my prediction is that a majority of legal scholars and lawyers will still believe the Fourteenth Amendment provides near-unconditional protection for birthright citizenship. If that’s true, a future Court might very likely view overturning the hypothetical precedent as entirely legitimate.
That leads to another question: if a future Court restored birthright citizenship, what would happen to people born during the period when the hypothetical Vance precedent was in effect? My assumption is that the Court (or Congress) would create some relatively straightforward process for those people to establish or confirm their citizenship.
But then what?
Suppose the Court later becomes conservative again. Could the issue simply be relitigated once more and flipped back again? If so, what would happen to the people whose citizenship had already been recognized under the intervening decision?
I’d be interested in hearing people’s thoughts on both Vance’s apparent strategy and the possible short- and long-term consequences if this issue were to keep returning to the Court.
For transparency(?), I personally support the decision of Trump v. Barbara.