Will Supreme Court Allow Trump To Allow Citizenship For Only Sexiest Babies? All Bets Off.
Also, the New York Times did another dumb. Shocking, we know.
The US Supreme Court heard oral arguments yesterday on Donald Trump’s idiotic attempt to eliminate the US Constitution’s guarantee of birthright citizenship with an executive order. Or at least, it kind of heard oral arguments in the case, but they mostly weren’t focused on whether the simple text of the 14th Amendment really means what it says about who’s a citizen. (We’ve bolded the key bits for you here.)
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
So far, three federal appeals courts have overturned Trump’s executive order barring government agencies from acknowledging citizenship rights for children born in the US if neither of their parents are US citizens. The Trump administration asked the Supremes to hear the case on an emergency basis. But as NPR reports, Thursday’s arguments actually focused on a narrower aspect of the case, because
instead of asking the court to rule on the legality of Trump's executive order, the administration focused its argument on the power of federal district court judges to do what they did here — rule against the administration on a nationwide basis.
So while the constitutionality of birthright citizenship, or Trump’s ability to strip it from some babies via an executive order, came up in the arguments, the real focus here was whether federal judges can issue nationwide — or “universal” — injunctions on presidential actions, or if the scope of their rulings must be limited to the states, individuals, and legal advocacy groups that brought the cases.
If the Court decides the latter, then you could have a weird situation where children born to undocumented parents in New Jersey are citizens because a federal court there blocked Trump’s order, but somehow children born to undocumented parents in Texas would remain ineligible for citizenship until the entire case makes its way through the appeals process and is decided by the Supreme Court.
Yeah, sounds crazy to us, too, because how the hell would that even work?
How Dare Judges Rule On The Constitution!
The Trump administration is really pissed off that Donald Trump’s brilliant ideas to completely remake America through executive orders can be blocked everywhere by any piddling federal district judge. After all, presidents make the laws and pipsqueak federal judges aren’t big and powerful like presidents are.
It’s especially outrageous that judges appointed by Democratic presidents are allowed to do that, since it encourages venue-shopping by plaintiffs like the 22 states, multiple civil rights groups, and individual immigrants who brought the lawsuits. That’s only allowed when judges are appointed by Republicans, for Pete’s sake, or when red state AGs all file suit in Amarillo!
Trump’s solicitor general, D. John Sauer, arguing the administration’s case, said that such nationwide or “universal” injunctions are a “nuclear weapon” that prevents presidents from carrying out their important work of singlehandedly ignoring Congress and court precedents, and griped that lower courts have ruled against Trump’s policies some 40 times since he started ruling by executive order in January. We think that probably says more about what Trump’s trying to do than it does about judicial overreach.
As you’d expect, Supreme Court Justice Clarence Thomas thinks nationwide injunctions are a newfangled nuisance anyway, saying, “The country survived until the 1960s without universal injunctions,” although legal scholars have pointed out that they date back as far as 1913, which may still be too long after the writing of the Constitution for Thomas.
Justice Elena Kagan pointed out the logistical nightmare that could result if presidential attempts to reverse fundamental rights can only be blocked only within a judge’s own district, resulting in the mess we alluded to above, where a child might be recognized as a citizen in some states but not in others.
“Does every single person that is affected by this EO have to bring their own suit?” Kagan asked. “Are there alternatives? How long does it take? […]
“How do we get to the result that there is a single rule of citizenship that is the rule that we’ve historically applied rather than the rule the EO would have us do?”
New Jersey Solicitor General Jeremy Feigenbaum, arguing for the 22 blue states challenging the EO, pointed out that if such a patchwork of citizenship statuses were allowed, states would face an untenable mess when people move from one jurisdiction to another. If the family of a child born in one of the 28 states not suing came to New Jersey, then the kiddo might qualify for state benefits, but wouldn’t have the Social Security number necessary to receive them. Feigenbaum warned that up until now, the 14th Amendment meant that we have never allowed “people’s citizenship to turn on and off” simply by crossing state lines.
The worst possible outcome, Justice Kagan suggested, is that cases involving fundamental rights might never get resolved on a national basis, since an administration that keeps losing in court might decide not to appeal the losing decisions to the Supreme Court, preferring to leave a patchwork of decisions in place instead of risking a national loss:
“In a case in which the government is losing constantly... it’s up to you whether to take this case to us,” Kagan said, adding: “If I were in your shoes, there’s no way I’d bring this case.”
And while some of the justices were open to restricting national injunctions, not a single one of them expressed any open sympathy for the idea that a president can change the meaning of the Constitution with an executive order. Time to get Alito and Thomas some nice gifts, probably!
Trump And The New York Times … Oh, You Finish The Sentence
In the meantime, on Thursday morning the New York Times ran a story (gift link) acknowledging that the Court would be judging the nationwide injunction question, but nonetheless focusing on the fringey constitutional argument the Court isn’t yet considering: Does the 14th Amendment really mean what it says?
As it happens, this was the very thing that Donald Trump was mad about, too! Apparently unaware that his own team’s case was about the injunctions, Trump posted a long rant about how Americans are SUCKERS for allowing birthright citizenship. As usual, he lied, saying the US is the only country with birthright citizenship (35 countries have it) and suggesting that we all got snookered into thinking the 14th Amendment says what it says, just to be “politically correct.”
Trump offered his constitutional analysis with the certainty of someone who’s just learned the meaning of “groceries”:
Birthright Citizenship is about the babies of slaves. As conclusive proof, the Civil War ended in 1865, the Bill went to Congress less than a year later, in 1866, and was passed shortly after that.
“It had nothing to do with Illegal Immigration for people wanting to SCAM our Country, from all parts of the World, which they have done for many years. It had to do with Civil War results, and the babies of slaves who our politicians felt, correctly, needed protection. Please explain this to the Supreme Court of the United States.
Trump’s version of history leaves a few things out, like the fact that the Supreme Court already settled the matter, in 1898, during the presidency of Trump’s beloved William McKinley. In United States v. Wong Kim Ark, the Court held that Wong Kim Ark, born to Chinese nationals in San Francisco in 1873, was a citizen. Yes, even though he was not a slavery baby. Please explain this to the president of the United States.
The Times article focused on the very recent history of the claim that “all persons” doesn’t quite mean “all persons,” noting that its biggest proponent is a fellow named John Eastman, who you may recall is the disgraced lawyer who helped convince Trump a coup would be perfectly legal, especially if it were successful. Eastman is first named in the piece as the “obscure California law professor” who first advanced the weird theory in 2004; only much later is he identified as the coup guy who’s been disbarred in California, although he’s appealing the decision.
To be fair, the article also discusses John Yoo, who strongly disagrees with Eastman’s pet theory and argues birthright citizenship is beyond question, without ever mentioning he wrote the GW Bush administration’s “torture memo,” so maybe that balances things out.
So what is the one weird trick that will supposedly eliminate birthright citizenship for children whose parents both lack papers? It boils down to Eastman’s contention that because during congressional debate over the drafting of the 14th Amendment, there wasn’t any explicit discussion of whether birthright citizenship would apply to children born to people in the US temporarily or illegally, then it’s OK to exclude them.
Yes, really, that’s the magic exception that isn’t actually written down. No court has ever bought it, particularly since the decision in Wong Kim Ark found that if you’re born here, you’re a citizen. Citing common law, the decision identified only four exceptions: children of foreign diplomats in the US, children of occupying enemy forces on US territory during war, kids born on foreign ships, and members of Native American tribes. That last exception was erased by Congress in 1924.
The justices don’t seem friendly to throwing away the 14th Amendment, at least not this time, so it’s possible they’ll decide birthright citizenship stays and nationwide injunctions go. Or maybe they’ll keep those.
But we can’t guarantee that the Court won’t eventually decide that some little-known ruling in a witchcraft trial in 1610 means that only people who have personally met a sitting president are citizens. You just can’t tell with this bunch.
[NPR / NYT (gift link) / Guardian / Joe. My. God. / Congressional Research Service]
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A president wanting to delete parts of the constitution he doesn’t like is just an argument against presidents.
... a little more seriously: the power of the US presidency is an invitation to abuse. It wasn’t always this way. So-called ‘originalists’ should be looking at how that has grown over the centuries. The office had much more administrative overtones once.
No one should even be entertaining this blatantly corrupt seizure of power. If anything is going to be abolished here, it should be the presidency for even asking. More practically: its power should be limited. Democracies do not need kings.
| Wonkette thinks everyone born in the US is a citizen, but also that people who have cats should get two votes. That’s only fair. |
A practical solution for troubled times!