Federal Court Issues Temporary Restraining Order Blocking "Blatantly Unconstitutional" Trump Birthright Citizenship Order

The TRO blocks the order for 14 days and is a sign that courts are highly skeptical of Trump's position.

(NA)

Earlier today, a US federal district judge issued a temporary restraining order blocking implementation of Donald Trump's executive order denying birthright citizenship to children of undocumented immigrants and immigrants in the US on temporary visas:

A federal judge on Thursday temporarily blocked President Donald Trump's executive order redefining birthright citizenship, calling it "blatantly unconstitutional" during the first hearing in a multi-state effort challenging the order.

U.S. District Judge John Coughenour repeatedly interrupted a Justice Department lawyer to ask how he could consider the order constitutional…..

Coughenour, a Ronald Reagan appointee, grilled the DOJ attorneys, saying the order "boggles the mind."

"This is a blatantly unconstitutional order," Coughenour told Shumate. The judge said he's been on the bench for more than four decades, and he couldn't remember seeing another case where the action challenged so clearly violated the constitution.

This is just the start of what is likely to be a lengthy legal battle, in just one of several cases challenging the order. It also isn't a final ruling on the merits, even in this one case.

Nonetheless, Judge Coughenour's negative reaction to the administration's position is  sign the order is likely to face great skepticism in the judiciary, and is likely to ultimately be struck down. It is also significant that this judge is a Reagan appointee. That's an early indication that this issue may not split judges along left-right lines.

I previously outlined why the Trump position on birthright citizenship is badly wrong here and here.

Comments

[Riva]

Let's wait and see what happens when the matter comes before a sane judge.

[Noscitur a sociis]

What’s your over/under on the total number of federal judges who will say this is permissible?

[Frank Drackman]

Only takes 5

[Dr. Ed 2]

This will inevitably go to SCOTUS, at least cert denied.

[not guilty]

The issues presented by the plaintiff states may go to SCOTUS, but this order will not. Unlike a preliminary injunction, a temporary restraining order is not immediately appealable as of right.

A preliminary injunction hearing here is set for Thursday, February 6, 2025, at 10:00 AM. https://storage.courtlistener.com/recap/gov.uscourts.wawd.343943/gov.uscourts.wawd.343943.44.0.pdf

[rrgg]

Isn't this just part of a process? WH starts with an EO. If and when it's stopped in court, they push for legislation to clarify or an amendment or whatever the court implies is needed. Yes it's an extremely high bar, but stopping birth tourism and other loopholes also have extremely high support in polling. Not to mention how many people are unaware in the first place.

[Dan Schiavetta]

"birth tourism"

LOL

[ReaderY]

When Judge Law starts asking for insane things like evidence, warrants, and legal authority, there’s always Judge Lynch for a more sane outcome.

[Jon S]

Can't wait for Josh Blackman's take on this. I am sure that he will advise us that this Judge is actually a crazy liberal nut and that every originalist has always said that there is no such thing as birthright citizenship. We were always at war with Eurasia.

[Dr. Ed 2]

Since when have all of the Reagan-nominated judges been conservative? Anthony Kennedy comes to immediate mind.

And this is a judge who is 84 years old -- how do we know he isn't senile?!?

"U.S. District Judge John Coughenour repeatedly interrupted a Justice Department lawyer..."

That is a sign of senility, a rational judge has the impulse control to let the lawyer finish talking before disagreeing.

And Ilya, this may be the end of national injunctions.

[santamonica811]

Wait. Are you calling the 6 ultra-conservative Trump-loving Justices all senile. You apparently have never been to an appellate court, or watched an appellate case, or listened to 10 minutes of a SCOTUS or other appellate court, right? Otherwise, you would know that appellate judges and justices *ROUTINELY* interrupt lawyers. I'd go so far as to say that it's almost unheard of for a lawyer to give her full prepared presentation with no interruptions. I've done 50+ appellate cases (all state ones, here in California). Been interrupted in all of them..equally by judges who ended up ruling for me and judges who ruled against me. I've been in the courtroom for another 200 cases, and lawyers were interrupted in all 200+.

I've listened to bits and pieces via audio recordings of about 150 Sup. Ct cases, and every single lawyer was interrupted in every single case.

Even in the overly-generous "Dr Ed Stupid Scale" (trademark!!!), this has gotta be one of your more idiotic observations. You've set the bar pretty high for the rest of 2025.

[Patrick Henry, the 2nd]

We should all wait for Josh's take. Because he's usually right and Illllllllllllllya is usual wrong. And yes it's clear this judge is a liberal number and every originalist has said there is no such thing as birthright citizenship.

[Noscitur a sociis]

While I don’t have much disagreement with Judge Coughenour’s bottom-line assessment, I am a little curious about the point of issuing a restraining order that will expire before the challenged conduct is set to begin.

[Lee Moore]

Doesn't this allow the Judge to sound off, without any fear of being overruled, because it'll be moot before it gets to a court that might overrule him.

A judicial parthian shot.

[Riva]

I wonder how this case is even ripe for review? The EO won't take effect for 30 days. I can't help but suspect the DOJ hacks would rather argue for the plaintiffs.

[Dr. Ed 2]

Judge is 84 years old -- a grasp for immortality in the lawbooks?

[A Japanese Student]

30 days is surely ripe for Article III purposes. The law need not be in force for ripeness; only that it would be imminently in force.

[Riva]

And, in addition to ripeness, The state has no standing. They can't sue based on harms to their citizens. States do not have standing as parens patriae standing to sue the federal government. And the economic harms alleged are too laughably indirect and abstract to support standing. Not to mention that the weight of the historical and legal authorities support the proposition that the children of non-resident aliens are not subject to the jurisdiction of the United States and therefor not entitled to birthright citizenship.

In sum, this judge is full of it

[A Japanese Student]

Parens patriae, sure. I do believe economic injuries - losing Federal funding - are sufficient. There are substantial number of citizens born to noncitizens, who receive programs funded jointly by Federal and State government (like Medicaid). If they are no longer citizens, States would have to bear the entire cost. Standing does not have a specific dollar requirement.

As to the "subject to the jurisdiction of the United States": Well, at least less frivolous than sovereign citizens; given that the contrary view is the precedent, lower courts cannot deny relief on that ground. (Also, if they're not subject to the jurisdiction of the United States, why can they be arrested, deported, sued, and convicted?)

[santamonica811]

Japan,
I think your last point is the most compelling one. I just don't see how a government can say both, "You are not subject to our jurisdiction..." and also, "We have jurisdiction over you and can therefore legally deport you."

Maybe there's a way to square that circle; I'm not seeing it.

[not guilty]

"Not to mention that the weight of the historical and legal authorities support the proposition that the children of non-resident aliens are not subject to the jurisdiction of the United States and therefor not entitled to birthright citizenship."

Can you provide citations to any such authorities, Riva? Or is that as true as everything else you have said?

[David Nieporent]

I mean, we know Riva's claim is a lie, but I'm curious if there's a single case, anywhere in the U.S., at any time in history, which said that children of illegal immigrants — who are, of course, not "non-resident" — are not subject to the jurisdiction of the U.S.

There are a few cranks — like disbarred law professor John Eastman — who have asserted it, but of course disbarred law professor John Eastman was not a judge even before he was disbarred.

[Riva]

Well NG, we have the text of the 14th Amendment that contains two requirements: one must be born in the US AND be subject to its jurisdiction. Senator Lyman Trumbull, one of the drafters of the 14th amendment, noted that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction; “[n]ot owing allegiance to anybody else.” Congressional Globe, 39th Cong., 1st Sess., 2893 (May 30, 1866). In the Slaughterhouse Cases, the S. Ct. noted that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Elk v. Wilkins held that “subject to the jurisdiction” meant that one was “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” Wong Kim Ark has been overstated and, notwithstanding its dicta, merely found that a child born to permanently domiciled parents was a citizen. And, when millions of Mexicans were repatriated, along with their children, following the end of a 1920s work program, no one argued that the children were citizens. The current warped misunderstanding that prompted this judge's hysterics emerged some time later.

[David Nieporent]

noted that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction; “[n]ot owing allegiance to anybody else.”

Right, and everyone in the U.S., other than diplomats, invading armies, and (at one time) Indians, are subject to the U.S.'s complete jurisdiction, not owing allegiance to anybody else.

[Ghost of Patrick Henry]

Excuse me, but the mother, the relevant parent, is a citizen of ANOTHER FRICKEN COUNTRY!!! How is this mother and her child not subject to another sovereign??? This is the only argument needed. All people who are citizens or subjects of another country are outside the jurisdiction of the US. That's WHY they can be forcibly expelled.

[not guilty]

"All people who are citizens or subjects of another country are outside the jurisdiction of the US. That's WHY they can be forcibly expelled."

That is simply not true. SCOTUS has recognized that the offspring of alien parents, born in the United States, may simultaneously acquire U. S. citizenship by birth and citizenship by ancestry in a parent's native country. See, Hirabayashi v. United States, 320 U.S. 81, 97 (1943). See also, Tomoya Kawakita v. United States, 190 F.2d 506, 507 (9th Cir. 1951).

[Randal]

All people who are citizens or subjects of another country are outside the jurisdiction of the US.

It's obviously wrong statements such as this which make your side, well, obviously wrong.

Permanent residents are citizens / subjects of another country. Dual citizens also are. So were all the European immigrants over the centuries. So were many of the Blacks who were the original intended beneficiaries.

You sound retarded because you are.

[David Nieporent]

How is this mother and her child not subject to another sovereign???

Because she, and the kid, are here. Can she, while here, refuse to obey a U.S. law on the grounds that she's the citizen of another country? (Hint: that's a rhetorical question; the answer is no.)

By the way, you might want to note that the 14th amendment doesn't say one word about the mother. It asks if the kid is subject to the jurisdiction of the U.S. And if your argument were correct, then Wong Kim Ark wouldn't have been a citizen, since his mother wasn't a citizen.
​
​​
For everyone else, note, by the way, that GOPH's argument has nothing whatsoever to do with illegal immigration. If the logic is, "Mother wasn't a citizen, and therefore isn't subject to U.S. jurisdiction, and therefore the kid isn't subject to U.S. jurisdiction and isn't a citizen," then that would apply regardless of whether the mother were here legally or illegally. The racists are just using illegal immigration as a stalking horse for eliminating all birthright citizenship. Even though the entire point of the 14th amendment was to codify birthright citizenship.

[Riva]

But, of course, judge demento sure had a cogent, compelling argument too. "This is a blatantly unconstitutional order." Wait...my bad, I meant judge demento had no argument.

[not guilty]

"While I don’t have much disagreement with Judge Coughenour’s bottom-line assessment, I am a little curious about the point of issuing a restraining order that will expire before the challenged conduct is set to begin."

A preliminary injunction hearing here is set for Thursday, February 6, 2025, at 10:00 AM. https://storage.courtlistener.com/recap/gov.uscourts.wawd.343943/gov.uscourts.wawd.343943.44.0.pdf I expect that injunctive relief will issue before the TRO expires, and the instant order merely preserves the status quo until then.

[Zarniwoop]

Para 4 of the complaint says in part:

The Plaintiff States will also be required—on no notice and at their considerable burden and expense—to immediately begin modifying their funding and operational structures and administration of programs to account for this change. This will impose significant administrative and operational burdens for multiple of the Plaintiff States’ agencies that operate programs for the benefit of their residents.

(emphasis added)

While we don't seem to have benefit of a hearing transcript yet, one potential basis for immediate injunctive relief would to clearly halt any need for the Plaintiff States to start preparing for the transition to the EO's new rules, even before the effective date.

There are a lot of moving parts; States don't turn on a dime; and effectively forcing States to expend resources starting today to comply with the Citizenship Stripping Order is an injury that would start immediately, not on or about Feb 19, 2025. Without that protection, the Plaintiff States might not be able to comply, and suffer additional losses.

It's not well-developed in the Complaint (see Part D generally), but I'd feel OK making that argument to a Judge if he did drill down to that level of granularity.

The Motion for TRO develops the argument a little more at pp.18-19. For example:

Finally, Plaintiff States’ agencies will suffer additional immediate harms due to the sudden and substantial new administrative and operational burdens created by the Order—in particular relating to their systems for verifying residents’ eligibility for federally-funded programs such as Medicaid, CHIP, and Title IV-E.

and

The Citizenship Stripping Order upends the Plaintiff States’ systems, and agencies now face substantial uncertainty and operational burdens as they determine how they must remake systems to make eligibility and verification determinations. See Fotinos Decl. ¶¶ 19, 21, 25, 28; Heddin Decl. ¶¶ 20-21; Tegen Decl. ¶¶ 18-20; O’Leary Decl. ¶¶ 13, 23.

Finally, a PI hearing before the TRO expires is quite likely; TROs are to give breathing room, while the PI process ramps up.

[Voize of Reazon]

If the states needed to start spending money now in order to be ready for Feb. 19 then they still need to spend that money now, the TRO doesn't move the enforcement deadline.

[Noscitur a sociis]

I understand why they think they need an answer before the deadline, I just don’t really see how the TRO helps them. (I’m not sure it adds any additional burden to the government either for similar reasons so it doesn’t seem like a huge deal, but still.)

[Zarniwoop]

I think the Plaintiff States were correct to ask, since they might not have gotten a PI hearing and order before Feb 19 (depending on the Judge, the Judge's calendar, etc.). Specifically, they asked for:

Plaintiff States respectfully request that this Court immediately enter a temporary restraining order enjoining the Citizenship Stripping Order in its entirety until such time as the
Court can further consider the merits

And then the Judge set the time for the PI hearing. At this point, might simply be "no one cares that much, Judge says move on the to PI part of the process, parties start working on their briefing."

At least this Judge doesn't seem to be slow-walking and generally fucking with things like Judge Cannon.

[Riva]

And it is not at all significant that the judge is a Reagan appointee. Many district judges are compromise appointments so this judge could very well have been a democrat choice. But regardless, who appointed him is irrelevant, his legal reasoning is, and ranting "unconstitutional" is not going to suffice on appeal, or with another thinking jurist.

[DixieTune]

You are correct, but even that aside, Republican presidents didn't focus on judicial appointments nearly as much 40 years ago.

To be frank, it's absurd that a Reagan appointee is still on the court.

[Noscitur a sociis]

Why, he’s almost old enough to run for president!

[Bob from Ohio]

He's older than Biden is now, born before the Pearl Harbor attack!

[Frank Drackman]

I’m a “Reagan Appointee” as my Naval Commission is from August 1983,
And still practicing (eventually I’ll learn) Medicine, or at least Anesthesia which is keeping the patient alive while the Sturgeon inflicts surgery upon them. And I’ll put my medical Know/lodge up against any recent Grad/jew/ma/cate where they mediate and (redacted) instead of memorizing the branches of the External Carotid “As Sally Lay Frigid Oscars Penis Slipped In”

Frank “Savant”

[grb]

Frank "Walter Mitty"

[Purple Martin]

Muted Frank long ago...because everything he said sounded like ta-pok-a-ta-pok-a-ta-pok-a-ta-pok-a-ta...

[Noscitur a sociis]

I’m sure we’ll hear something similar the next time a controversial issue is being decided by a judge appointed by a Democrat!

[Sarcastr0]

IMPURE IMPURE

[DixieTune]

Let's wait until the matter ends up before SCOTUS, as that's the only ruling that'll ultimately matter.

I will say that I don't think there's any good faith argument for maintaining birthright citizenship as a policy.

The left uses it to ensure there are more voting third world peoples over time. If you dump anyone who claims asylum into the U.S., have years long waits for court hearings, and allow them to have children on U.S. soil, this is the ultimate result.

[SRG2]

And we hence reverse the demographic decline that's helping to wreck Social Security. Good economic reasons to favour birthright citizenship, but if you prefer to Aryanise the US, I can see why you'd regard it as bad policy. Also, if you're so insecure about the ability of the USA to inculcate the best of Western values, that is defeatism. Which ties in nicely to the Aryan bit.

[Riva]

Race has nothing to do with it, unless of course one is a race obsessed Democrat.

[SRG2]

LOL. You think neo-Nazis, white supremacists and Christian nationalists don't consider race?

[Riva]

Don't even know what a "christian nationalist" is but whatever. And outside your fevered imagination, what do nazis have to do with anything, neo or otherwise?

[MoreCurious]

Stay tuned, Riva, and keep your eyes, ears, and mind open. You may be a little slow to catch on, but you'll soon see for yourself what Christian nationalism and neo-Nazism are. An early opportunity for you will be when the newly pardoned and commuted January 6th rioters visit Trump in the White House. Or you can ask Pete Hegseth or Elon Musk.

[grb]

Riva : "...what do nazis have to do with anything, neo or otherwise?"

Keep the news from Musk, otherwise he'll have no one to salute!

Note : I make that quip fully expecting our Professional Victims (ie, today's Right) will howl and moan. After all, how could anyone expect a genius like Musk to know a Nazi salute would be taken for a Nazi salute? How unfair is that!

[Riva]

Do you clowns really believe this BS?

[grb]

1. We have the advantage of videotape and our eyes.
2. You have only bluster & gaslighting in response.

Not a fair fight, is it?

[Stupid Government Tricks]

Don't have a heart attack.

https://babylonbee.com/news/superman-under-fire-after-hundreds-of-images-surface-of-him-giving-nazi-salute

[grb]

Hilarious. Musk gives a Nazi salute and the best our scrambling Loser Brigade can do is (a) insist we ignore what's on tape (Riva) or (b) post unfunny drivel from the pathetic Babylon Bee (SGT).

Meanwhile: https://www.youtube.com/watch?v=e2bbb-6Clhs

[Zarniwoop]

Don't even know what a "christian nationalist" is but whatever.

I suspect you're just trolling by pretending to be uniformed, but there's a lot of easy resources on the web. First in the googs:
https://en.wikipedia.org/wiki/Christian_nationalism#United_States

[Longtobefree]

The Nazis were good socialists.
Socialists hate Christians.

[grb]

Longtobefree : The Nazis were good socialists.

Yeah; that's why everyone who adopts Nazi ideology, rhetoric, symbolism and hate is always a right-winger.

[SRG2]

Don't even know what a "christian nationalist"

Liar.

[David Nieporent]

See, if Riva were a person rather than a bot, I'd accuse it of bad faith. It is impossible to miss the openly racist ranting by Trump supporters in favor of stripping birthright citizenship and ending H1Bs and such.

[DixieTune]

It's not racist to want to maintain America as a white-majority country. It's simply not.

[grb]

God, you're stupid. If you "want to maintain America as a white-majority country", that's racist by default. There's no possible way for that not to be racist. It's racist by definition. Are you so stupid you can't see that ?!?

If you were capable of sequential thought, you might try claiming that's ..... wait for it ..... "good racism". But why bother? Everyone already sees you're a shit-for-brains bigot. Digging and digging the hole deeper just makes your loathsomeness more obvious.

[David Nieporent]

Dude, his name is "Dixie." That he's a trash racist loser is overdetermined.

[Dr. Ed 2]

SRG2's definition of "Aryanise" is to maintain American values, including a love of baseball. I see that Japan became fully "Aryanized" after WWII. Hardly anyone of Japanese blood left on those islands...

Earlier immigrants LEARNED ENGLISH....

[grb]

Dr. Ed 2 : "Earlier immigrants LEARNED ENGLISH...."

Uh huh. Earlier immigrants were targeted by huckster demagogues just like those of today. Earlier immigrants were a cartoon pawn between sleazy politicians and their dupe mobs then as well.

There's zero difference between the lies, hysterical rhetoric, and wacko fear of then vs now. Dress-up Trump as a Nineteenth Century Know-Nothing sleazeball and he'd look right at home claiming Italians were a threat to Christian womanhood, or the Irish are eating people's cats, or Chinese aren't really human, or the Jews can never become real Americans.

It's the same sheet of music between the scammers and scammed. The same pols devoid of morals or ethics. The same gullible mobs panting eager to believe some vilified "Other" is stealing from them - all because they get-off on their faux victimhood.

Of course today we recognize the hate campaigns against the Irish, Catholics, Italians, Japanese, Chinese, and Jews were wrong and absurd. In decades hence, Americans will reach the same conclusion about today's toxic pander-fest. People will wonder how anyone (say Dr. Ed 2) could have possibly been dumb enough to fall for such cartoon nonsense.

That's a one-hundred-percent certainty. Because today's anti-immigrant hate-fest has repeatedly occurred throughout U.S. history. And the anti-immigrants are always wrong.

Always.

[DixieTune]

Irish, Catholics, Italians, Japanese and Chinese are not like the full blooded Injuns migrating from Central America.

[grb]

Righto. Except the huckster con artists who sold immigrant hate to dim-witted mobs said the exact same thing about - yes - the Irish, Catholics, Italians, Japanese and Chinese. It's only in retrospect that everyone recognized that as a travesty. Just like everyone will eventually see Trump's hate campaign as revolting and his followers as dupes.

Everyone - no exception. Hopefully, DixieTune, you'll live long enough to join everyone else in seeing what a fool you are.

[Randal]

Earlier immigrants LEARNED ENGLISH....

No they didn't! What are you talking about? Their kids did... as do the kids of current immigrants.

[David Nieporent]

Exactly. There's a reason why there are Chinatowns in major cities where all the signs are in Chinese — because the original immigrants didn't speak English. There were newspapers in Italian, Yiddish, German, Polish, etc. — because the original immigrants didn't speak English.

[Drewski]

Where I live, a little over 6% of the population spoke only German until WWI. Today less than 1% of the local population cannot speak English.

[DixieTune]

Anyone who thinks we're going to save social security by flooding America with illiterate third worlders who make minimum wage, often off the books, is an idiot.

[grb]

DixieTune : "...... idiot."

But immigrants help, of course. From the Cato Institute :

Our paper “The Fiscal Impact of Immigration in the United States” is the first in a new series of Cato papers that analyze the fiscal impact of immigration. It’s 248 pages of information, data, explanations, figures, and charts that show immigrants pay more in taxes than they receive in benefits, on average.

https://www.cato.org/blog/fiscal-impact-immigration-united-states

[DixieTune]

First, analyzing just "immigrants" lumps in Russian nuclear scientists with Guatemalan field hands. It's dishonest. Second, these studies ignore the health care and education benefits their anchor baby "citizen" children get. It's also dishonest.

[grb]

What a clown you are! You seem to think you can create special categories of immigrants to segregate those whose skin color bothers you. In that, I'm sure you follow the bigoted pandering of your orange-tinted god, but that has zero to do with immigration law or the economic effects of immigration.

Also, apparently you missed the fact that the Cato study did look at the factors you cite. Could you please TRY to make a real argument? I know "immigrants are vermin" works within the Right's hive mind bubble, but you're out in the real world now.

[DixieTune]

WTF are you blabbering about? You made a dishonest statement about immigrants being an economic boon. I pointed out your dishonesty. You respond with "orange man racist!"

[grb]

Lord above, but you're (euphemism-alert) mentally-challenged....

1. I made no "dishonest statement".

2. I linked a Cato Institute study.

3. That study didn't claim immigration was an "economic boon", nor did I say it did.

4. It did say immigration was an overall budgetary positive, which I noted.

5. You didn't (and can't) challenge the study in any way. Your one attempt was to claim it didn't consider some factors which it clearly / obviously did.

6. I pointed out your lies, which seems to have thrown you into a tizzy.

Given your flailing confusion, maybe mommy should revoke your basement internet privileges. You'd surely do better if allowed a few additional years to grow-up and mature.

[Krayt]

There's a great reason to maintain it. That people around the world come here to have a baby, because this is the great, shining city on the hill, is a fantastic reason.

They want their precious to have an option to flee the broken and corrupt dictatorships they visit from. This is something to be proud of, and evidence to slap the faces of snippy rhetoriticians of all stripes derogating the US: These people put their money, and their kids' future where their mouth is.

Come here and live free from that stuff, and make a better life for yourself.

And in an economically free land, the more, the better.

My beef with Democrats is they want to win elections so they can continue economic regulatory burdens apace, aping more and more closely the dragging burdens of corruption.

Economic freedom should be the thing of Republicans. Shining city on the hill should be a thing of both parties, but sadly Democrats use it "for purpose of evasion". Republicans in response turn to left wing politics of stopping immigration to help working men. That's the theory, anyway. With racist and xebophobic twists, which is new. Which is to say, ancient.

[Sarcastr0]

My beef with Democrats is they want to win elections so they can continue economic regulatory burdens apace, aping more and more closely the dragging burdens of corruption.

If you make up what people are doing, you can be mad at whoever you want!

[Stupid Government Tricks]

You'd know, wouldn't you?

https://reason.com/volokh/2025/01/21/president-trump-comments-on-president-bidens-pardons-an-unbelievable-precedent/?comments=true#comment-10878061

you don't actually know the guy

[Sarcastr0]

If you're too stupid to know what parasocial means, don't take it out on the rest of us.

[DixieTune]

Complete lies. They're coming here for our expansive welfare state.

[David Nieporent]

Once again, Schroedinger's immigrants, who both take our jobs and live off welfare at the same time!

[Dan Schiavetta]

Well put.

[Life of Brian]

They take jobs at artificially low pay rates that leave their incomes below the thresholds needed to qualify for welfare benefits.

What in the world is even vaguely complicated about that?

[grb]

David Nieporent : "... Schroedinger's immigrants, who both take our jobs and live off welfare at the same time!"

And manage to eat our pets too! Is there no end to their evil?

(or right-wing gullibility)

[DixieTune]

They take jobs, but they don't pay their own way. That's why their children fill up our schools, demanding all sorts of special services, and they use our ERs as their doctor's offices.

[grb]

Our paper “The Fiscal Impact of Immigration in the United States” is the first in a new series of Cato papers that analyze the fiscal impact of immigration. It’s 248 pages of information, data, explanations, figures, and charts that show immigrants pay more in taxes than they receive in benefits, on average.

https://www.cato.org/blog/fiscal-impact-immigration-united-states

[DixieTune]

I already debunked this crap up above.

[grb]

Everyone sees the exact opposite, but delusion seems to be your essential coping mechanism.

[Jason Cavanaugh]

BCD (Banned)/Verochax (Banned)/Lennyk78 (Banned)/LatestIterationofDipshit:

I read your linked article and did not see anything that you debunked. Could you elaborate where we were supposed to be looking?

[Social Justice is neither]

Sounds great for them, not so much for existing Americans. So no, not continuing a one sided deal sounds fine to me.

[granite state destroyer]

The people who take advantage of birth right citizenship in the 21st century are Russians, Chinese, Indians, Saudis and other ambitious foreigners seeking to set up their kids to take advantage of employment and educational opportunities in the U.S. They are not leftists by any stretch of the imagination, but they’re often the kind of people Musk wants to welcome to our shores.

[Zarniwoop]

I will say that I don't think there's any good faith argument for maintaining birthright citizenship as a policy.

I would not, were I personally involved in drafting citizenship policies in 2025, prefer the current scheme of birthright citizenship with only the very limited set of present-day exclusions. I would go so far as to say we agree on that. I disagree that there's no possible "good faith argument"; that starts to sound like you're into drinking-the-kool-aid levels of assurance about a certain position.

But none of the foregoing is relevant, because the only question is "what does the Constitution actually say?", not "what would be good national policy?".

They're just. not. the. same. thing.

[DixieTune]

It is relevant, because if you admit it's bad policy, then you take steps to make it irrelevant. If we had control over whom was in this country, then it wouldn't matter if we had birthright citizenship.

[Zarniwoop]

And the proper "step[]" is build support for a Constitutional amendment. It's not that complicated.

Instead, you're swallowing Trump's "we can fix immigration with this one simple trick!" hucksterism.

Why you hate the Constitution so much?

[DixieTune]

No, I said the proper step is to make it irrelevant. Is English your second language?

[David Nieporent]

I will say that I don't think there's any good faith argument for maintaining birthright citizenship as a policy.

And I say that there's no good faith argument for abolishing it as a policy. But this post is about the legality, not the policy, and there isn't even a colorable argument that abolishing it is constitutional.

[Josh R]

I prefer a policy that excludes birthright citizenship when the parents have no residence in the USA. I don't see why birthright citizenship should be granted to kids whose parents get a tourist visa, have the baby, and leave the USA.

[David Nieporent]

If that were really a thing, rather than essentially an urban legend — over the years there have been news reports about Chinese "birth tourism," but every single such story said "there's no way to know how much this actually happens" — that might be reasonable in the abstract, since those people wouldn't represent the permanent, generational third class status of people. The problem is that it's only assessable retrospectively, waiting to see whether the parents actually do leave. And how long after the birth do they have to leave? (And for those here illegally rather than being on tourist visas, how do we even know?) Why go to all the trouble of trying to deal with those complexities for such a minor issue, when the people trying to undermine the constitution are really concerned about the millions who don't leave after giving birth, not the hundreds that do?

[Josh R]

Without waiting for what the parents do, simply deny citizenship when the parents have a tourist visa. It might not solve a pressing problem, but it could be politically advantageous for immigration supporters.

[Life of Brian]

If that were really a thing, rather than essentially an urban legend

If it's just an urban legend, then there's certainly no harm whatseover done by outlawing it, amirite?

[ducksalad]

The harm is giving you a foot in the door.

[DixieTune]

What is the policy argument for keeping it? Other than creating new brown citizens who will vote for Democrats. I'm waiting.

[SRG2]

Mr Bumble and Roger hardest hit.

[Zarniwoop]

Well, also ML on his hobby-horse issue.

[Mr. Bumble]

Hardly. Meaningless move by a meaningless judge.
Just red meat for you to give you something to blather about.

[Bob from Ohio]

"It is also significant that this judge is a Reagan appointee. That's an early indication that this issue may not split judges along left-right lines."

His wikipedia entry doesn't show much of him being on the "right". Maybe he was, maybe not. He had to be acceptable to both US senators, and one was a democrat. Not unusual for Blue slips to result in "squishy" appointments to the district court.

[SRG2]

He had to be acceptable to both US senators, and one was a democrat.

He also had to have been nominated by Reagan. Was Reagan in the habit of nominating liberal judges?

[Bob from Ohio]

"Was Reagan in the habit of nominating liberal judges?"

I didn't say "liberal", just "squishy".

[SRG2]

Ah, you mean, not cravenly following the president's wishes. Gottit.

[Dr. Ed 2]

Never forget that Eisenhower nominated Earl Warren.

Remember that "Scoop" Jackson hadn't died yet, and that no judge would have been confirmed without Jackson's approval.

So, yes, Reagan nominated Leftist judges -- how did the infamous "Ninth Circus" become the Ninth Circus? And even it rejected this judge's lenient sentencing of the Millennium Bomber.

[Purple Martin]

Someone is really unfamiliar with the political history of Henry Martin "Scoop" Jackson.

[Sarcastr0]

It doesn't count because Bob's decided he doesn't count.

[John F. Carr]

This is the case:

https://www.courtlistener.com/docket/69561931/state-of-washington-v-trump/

[not guilty]

Thank you for the link. The TRO is here: https://storage.courtlistener.com/recap/gov.uscourts.wawd.343943/gov.uscourts.wawd.343943.43.0_3.pdf

[Raccroc]

Couldn't find the actual order, so outside of a a few choice quotes, it is not clear what is going on.
Is the judge saying the interpretation of the 14th is unconstitutional OR is it that the EO changing the interpretation of the for the various federal immigration acts is unconstitutional?

I am skeptical of the formal (under the jurisdiction of the United States doesn't mean what the r Jus soli folks keep claiming); however, I am not sure the change can be done without Congress.

[John F. Carr]

"There is a strong likelihood that Plaintiffs will succeed on the merits of their claims that the Executive Order violates the Fourteenth Amendment and Immigration and Nationality Act."

[Raccroc]

So he blamed in on both then. Thanks.

[Noscitur a sociis]

https://storage.courtlistener.com/recap/gov.uscourts.wawd.343943/gov.uscourts.wawd.343943.43.0_3.pdf

(Not hard to find, but still indefensible that Prof. Somin didn’t link to it.)

[Raccroc]

Thanks!
(TBH, I just did one simple quick search before posting and when I didn't see it I just assumed it wasn't up publicly yet since Prof. Somin didn't link it.)

[mikeybates]

Their parents can still be deported, right?

[Raccroc]

I keep wondering if that isn't a hardball tactic that Trump will take if the courts shoot him down all the way to the top. If he can maintain the political capital to pull it off it would be a great bargaining chip to get Congress to act and pass some sort of reform.

Basically, even if you cannot stop the citizen baby part, you most certainly can get rid of the "anchor" effect...
To new mom: You are being deported. You can take the baby with you, or can surrender the child to the federal government and we'll stick it in foster care.

[Dr. Ed 2]

Foster care and NOT custody with relatives or friends.

This includes ONLY learning English.

[Zarniwoop]

On what basis, other than performative cruelty?

I bet you would have loved the "Indian boarding school" model of genocide, too.

[DixieTune]

I preferred the handing out smallpox infected towels.

[Noscitur a sociis]

The order applies to the children of parents who are in the country legally but who are not permanent residents, so… no, not necessarily.

[not guilty]

"Their parents can still be deported, right?"

George Washington was the father of the country, but who are the parents of the States of Washington, Arizona, Illinois and Oregon?

[Michael W. Towns]

Ilya's erection will last as long as the restraining order.

[John F. Carr]

The judge found plaintiff states had standing because federal funding is tied to citizenship. If there are enough votes in Congress the funding rules could be changed. I think there aren't enough votes. The House is too closely divided and the Senate is less MAGA than the House.

[Noscitur a sociis]

It seems like a fairly pointless argument exercise: there will be people with indisputable standing the instant that the order starts being enforced, so mooting out this lawsuit doesn’t seem like a very useful way to insulate from review.

[Zarniwoop]

ope, wrong spot

[Voize of Reazon]

[David Nieporent]

It's pretty meaningless anyway. Suppose Congress somehow changed the law so that the states lacked standing. It's undeniable that any child affected by the EO would, so within a month there will be individuals with standing. As I mentioned the other day, this is not like the student loan forgiveness cases; it's easy to find individuals harmed by the proposal.

[M L]

Tangentially related:

This afternoon SCOTUS 8-1 granted a stay of the nationwide injunction against the Corporate Transparency Act.

Gorsuch concurred and said: "I would, however, go a step further and, as the government suggests, take this case now to resolve definitively the question whether a district court may issue universal injunctive relief."

And Jackson dissented! Saying the government did not "demonstrate sufficient exigency to justify our intervention".

Let the political footballs fly.

[Dr. Ed 2]

"Gorsuch concurred and said: "I would, however, go a step further and, as the government suggests, take this case now to resolve definitively the question whether a district court may issue universal injunctive relief."

That's gonna happen...

[DixieTune]

Yeah, SCOTUS only gets involved to expand the government's power, not reduce it.

[tuphat]

Curious if anyone knows: From where are the DOJ attorneys that argued this case? Are they from the USA WD Washington office, from Main Justice or what?

ETA: Answering my own question. Main Justice, Civil Division, Federal Programs Branch.

[John F. Carr]

The attorneys of record all have addresses in D.C., three at 1100 L Street and one at a Post Office box. It is not clear to me whether they appeared in person.

https://www.courtlistener.com/docket/69561931/parties/state-of-washington-v-trump/

[tuphat]

Thanks!

[M L]

Defendant's filing is here:

https://storage.courtlistener.com/recap/gov.uscourts.wawd.343943/gov.uscourts.wawd.343943.36.0_1.pdf

Was there an oral argument?

[Zarniwoop]

From the OP:

A federal judge on Thursday temporarily blocked President Donald Trump's executive order redefining birthright citizenship, calling it "blatantly unconstitutional" during the first hearing in a multi-state effort challenging the order.

[Zarniwoop]

Docket entry #28 from the helpful link JFCarr posted above:

NOTICE of Hearing on Plaintiffs' 10 Emergency Motion for Temporary Restraining Order: Motion Hearing set for 1/23/2025 at 10:00 AM in Courtroom 16206 before U.S. District Judge John C. Coughenour. (KMP) (Entered: 01/21/2025)

(emphasis added)

[Dr. Ed 2]

Would Main Justice would have done better had they included a WA person who knew the judge?

[Zarniwoop]

No.

When a Judge says things like "blatantly unconstitutional" and "[the order] boggles the mind", being golf pals doesn't get you very far.

[Drewski]

Hah. Coughenour is a judge's judge. He's got high-level litigation experience, academic chops, and a strong track record on appeal. He's known for being extremely ticky-tacky about ethics. He's been the darling of libertarians for staunchly opposing FISA courts and the drug war, is loved by liberals for nuanced sentencing, and was praised by conservatives for his efforts (over decades) to bring judicial reform to Russia. MAGA is just to have to invent a scandal, I'm afraid.

[Just Eric]

Regardless of his reputation and the likelihood that his favored outcome will prevail, the statement about ethics of lawyers presenting argument on limitations of "subject to the jurisdiction" was unnecessary and injudicious. It is part of an unfortunate trend to curtail debate by claiming formerly accepted reasonable arguments are beyond the pale.

[granite state destroyer]

Trump’s order is flagrantly unconstitutional. If he has a mandate to repeal the 14th Amendment than he should lobby the Congress and the States to do so. Enough with the fucking Federal overreach.

[M L]

As expected.

Link to yesterday's discussion and several articles on the topic:

https://reason.com/volokh/2025/01/22/midweek-midday-open-thread-3/?comments=true#comment-10881597

[Zarniwoop]

As expected.

Wait, I thought your position was that the 14th unquestionably does not extend birthright citizenship to children of undocumented folks, because [mumble mumble cherry picked reasons that you didn't want to fully engage with].

So why "expect" this result? It was any D.Ct. judge not named Kacsmeryk?

[M L]

It was always 100% that a district court judge somewhere would immediately issue a nationwide injunction.

[grb]

It was always 100% that Trump's order was an unconstitutional PR stunt. Blaming this judge or that is beyond the point. It was always an empty gesture designed to fail - good only to scam the very stupidest people in the MAGA cult.

[Krayt]

Stopping people from fleeing to freedom, aka helping them, is monstrously un-Christian.

Jesus: Fuck those women about to give birth!

Come on, people who hate this decision. Say it with me. Jesus: "Fuck those pregnant women about to give birth!"

"But...!"

Say it. SAY IT!

[Mr. Bumble]

...and the USA is the only country in the world where they will find freedom?
I thought it US was a racist, white supremacist, Nazi shithole.

[Davy C]

If you're from Central America, what other country (that you can get to by land) would you suggest?

[Mr. Bumble]

Keep going to Canada.

[David Nieporent]

I thought it US was a racist, white supremacist, Nazi shithole.

Just the GOP.

[Mr. Bumble]

Stupid, even for you. Sounds like Capt. Dan.

[Scooter]

How many are living in your residence?

Just as I expected.

LMAO.

[TwelveInchPianist]

"Jesus: Fuck those women about to give birth!"

According to experts, the US is one of the 10 most dangerous country in the world for women. We need to get these poor women somewhere safe as quickly as possible!

[Just Eric]

Persuasive Constitutional argument. I thought this reengagement with concept of illegal immigrants being subject to jurisdiction while evading enforcement of laws in jurisdiction was unlikely to prevail, but your resort to foul-mouthed religious nonsense makes me question that a bit.

[dwb68]

No one had any standing to challenge it. When the lawfare people jump the gun and get a dumb judge to issue spaghetti, they end up losing.

[dwb68]

And under Biden's ERA precedent, the GOP can just pass an amendment and trump can declare it part of the constitution, like Biden lmao.

Never forget what goes around comes around.

[Zarniwoop]

While I have no interest in rehashing the same tired ERA arguments, this is a monstrously stupid self-own.

No matter what one thinks of the follow-through by the 50 states, the ERA was passed by supermajorities in the House and Senate, and sent to the 50 states for ratification. These are bright line Constitutional prerequisites.

If Trump thinks he can make a further Constitutional modification of the 14th Amd. happen, he's welcome to try.

Until that happens, "trump can declare it part of the constitution, like Biden lmao" is actively moronic.

[dwb68]

All amendments are passed by supermajorities, duh.

An amendment to end birthright citizenship will pass like the Lakin Riley act (which was only two votes shy of a supermajority). Dems went so far to the left on immigration that they are now being forced to scramble back to the center. Pendulums overcorrect. The Dems will need to show their tough-on immigration bona fides now.

Once the amendment passes, by its required supermajority, Trump will simply declare it effective, like Biden declared ERA effective, and order the archivist to record both lol.
(although I am certain it will get a supermajority of states)

All the order does is end citizenship for illegal immigrants. Honestly, not a big deal. Come here legally, your kids are citizens. Even Canada is moving to the right on immigration. Birthright citizenship was an idea born when we had tons of land and were simply trying to crowd out the native population.

The Dem governors pursuing this haven't read the room and are doing Trump a favor. Trump's Executive order is temporary and can be rescinded.

[Zarniwoop]

Once the amendment passes, by its required supermajority, Trump will simply declare it effective, like Biden declared ERA effective, and order the archivist to record both lol.
(although I am certain it will get a supermajority of states)

Can I have some of what you're smoking? Sounds like it's some really good shit.

[dwb68]

Maybe you haven't noticed: Trump won the popular vote, and even the Democrat Senators who won are singing his anti-immigration tune. Everywhere, hispanics and blacks moved redder, and these fires in LA are going to sink the Democrats in Kommiefornia.

Read the room. Eight years of resistance only made Trump stronger.

Fetterman right now is the only Dem who gets it. Dems can either learn from it, or persish.

[David Nieporent]

The Dems will need to show their tough-on immigration bona fides now.

Why, if they do can they get a do over on the 2024 election?

All the order does is end citizenship for illegal immigrants.

That is false in multiple ways.

1) Illegal immigrants don't have citizenship, so one can't "end" citizenship for them.
2) The order in fact also attempts to strip citizenship from the children born of people here legally.

Birthright citizenship was an idea born when we had tons of land and were simply trying to crowd out the native population.

We have tons of land now. And, no, it was an idea born long before that; it derives from English common law going back before the U.S. existed.

[Sarcastr0]

And Trump's declaration will have just as much legal effect as Biden's did; and probably be equally well received by the legal community.

[Area Man]

“and probably be equally well received by the legal community.”

The American Bar Association is going to support Trump’s declaration?

[Noscitur a sociis]

Why do you feel the plaintiffs’ theory for standing was inadequate?

[not guilty]

The government's response in opposition to the motion for temporary restraining order is here: https://storage.courtlistener.com/recap/gov.uscourts.wawd.343943/gov.uscourts.wawd.343943.36.0_1.pdf

There is no discussion of the President's authority to usurp the other branches of government by unilaterally altering the long settled interpretation of a constitutional provision. As SCOTUS opined in Cooper v. Aaron, 358 U.S. 1, 18 (1958):

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.

The conduct of DOJ attorneys here fails to comport with Rule 11(b)(2) of the Federal Rules of Civil Procedure, which provides: "By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law".

[ducksalad]

ng, I'm 100% against this executive order, but I'm also not a lawyer.

What's a member of the executive branch supposed to do when the POTUS orders them to defend an indefensible EO? What if it's even worse and the POTUS orders them to use a particular argument that's nonsense?

To take different example, Elena Kagan seems like an intelligent and honest person. She defended the claim that the government could ban spending money to produce books or pamphlets. I assume she was given orders....

[David Nieporent]

What's a member of the executive branch supposed to do when the POTUS orders them to defend an indefensible EO? What if it's even worse and the POTUS orders them to use a particular argument that's nonsense?

Lawyers have ethical obligations superior to our obligations to our clients. While we are required to zealously advocate for our clients' interests, we cannot follow our clients' instructions if doing so would cause us to violate the ethics rules. If there's an indefensible position (and to be clear, lawyers are very good at rationalizing), then what we're supposed to do is (a) refuse; and (b) if the client insists, withdraw. And yes, sometimes that means we lose out on money, or a job. But that's the way ethics work.

And just to touch on a larger point your question raises, beyond that of lawyers, the president is not a king. (This is not directed at you; your question just raises it.) A lot of people on the right, with respect to Trump, seem to think the president can just give whatever orders he wishes and executive officials are obligated to listen. They are not. While they report to the president, they do not work for him; they work for the country. Their oaths are to the constitution, not the president; their salaries are paid by the government, not the president. If he tries to have them do something they're not authorized by law to do, his instructions are null and void.

[ducksalad]

Thanks. I do understand the ethical rule, licensed engineers have a more or less identical one.

Of course engineers don't have the concept of a power line design that's "probably going to fail, but not frivolous". Well maybe an internal draft, but not at the stage of signing it.

But given that roughly 50% of what gets submitted in courts is on a losing side, it seems inevitable that you'll be signing stuff that you know is almost certainly doomed but is somehow not frivolous. It seems like a much tougher ethical call to make.

[JoeFromtheBronx]

government could ban spending money to produce books or pamphlets

She ultimately noted that was reasonably cited as at least a close question and the government would not really do that.

And, to be clear, the spending is in a narrow respect. Right now, there are limited cases where people cannot spend money for certain types of books such as a lawyer writing a book that provides private lawyer-client information or copyrighted material. There the material was not even banned. A certain type of revenue stream was banned.

Putting that aside, campaign finance precedents reasonably allowed limiting campaign finance spending in various respects. People might think the precedents are dead wrong. The Supreme Court overturned one in Citizens United.

There is no such precedent here. A precedent from 1898 goes the other way, very clearly.

There are obviously many close questions but there is a small subset of arguments so frivolous that it is unethical to make.

[CommentMonkey]

While I think the government will and should lose this case at whatever level it reaches, the position isn't frivolous. There is some dispute what "subject to the jurisdiction thereof" means as applied to children of illegal immigrants. The closest Supreme Court case is Wong Kim Ark, which concerned children of temporary but legal residents. There is scholarly support for the DOJ position going back decades (although most scholars disagree), and Judge Posner, among others, supported the view that the birthright citizenship is not constitutionally required.

So the judge's comments at the TRO hearing strike me as a little over the top, and the argument that the DOJ's lawyers should be hit with Rule 11 sanctions even more so.

[David Nieporent]

There is some dispute what "subject to the jurisdiction thereof" means as applied to children of illegal immigrants.

In the sense that there's some dispute about whether the moon landing happened, sure: someone disputes it, so therefore there's some dispute.

[Zarniwoop]

I do not agree that the government arguments are completely frivolous.

I expect them to go down somewhere between 7-2 and 9-0 at the S.Ct. But as presented, they're in the "nonfrivolous argument for ... reversing existing law" category.

[F.D. Wolf]

Does "blatantly unconstitutional" mean something different than "unconstitutional"? Though, when the judge says, "it boggles the mind," I believe him, as I imagine may things boggle his mind. If he's the typical Reagan appointee, he's 200 years old and senile by now. That really is the type of cool, detached, professional legal analysis one has come to expect from federal judges in the era of Trump. It has really elevated the reputation of the judiciary in the minds of the public.

[Mr. Bumble]

Lawyers aren't the only ones in love with adjectives.

[Noscitur a sociis]

“Blatantly” is not an adjective.

[Mr. Bumble]

Thanks. I realized that I was blatantly wrong after the edit window closed but decided not to bother correcting.
Hundreds of comments on this subject (birthright citizenship) in multiple posts and no end in sight make my comment meaningless.

[Noscitur a sociis]

Does "blatantly unconstitutional" mean something different than "unconstitutional"?

Yes? It doesn’t really seem that complicated!

[CJColucci]

Courage?

[Frank Drackman]

OK don’t know how to phrase this any more simply(and I know Simple))
So in 1993 Hairy Reed supported a “Birth Right” policy amazingly identical to “47”
So um, respectfully,
What the fuck is your Deal, besides wanting more Illegals given Citizenship, and given the last Erection probably wouldn’t vote for you limp dicks anyway.

[DaveM]

The meaning of "under the jurisdiction thereof" is ambiguous, certainly, but we do not need to await a court order to resolve the uncertainty. Congress can pass a law which clarifies the meaning of this phrase.

Congressman Babin (R-TX) has introduced the Birthright Citizenship Act to do just that.

"This legislation ensures that automatic citizenship is granted only to children born in the United States with at least one parent who meets one of the following criteria:

- A citizen or national of the United States
- A lawful permanent resident whose residence is in the United States; or
- A lawful immigrant performing active service in the United States Armed Forces."

Personally, I would 10X rather this question of interpretation be settled by elected representatives rather than a roomful of lawyers, even if they are wearing black robes and serious faces.

Press Release: https://babin.house.gov/news/documentsingle.aspx?DocumentID=14088

[Randal]

It's pretty fascinating to watch all these "conservatives" swinging from "originalism" all the way to "popular opinion" as the best way of interpreting the Constitution.

As Davy mentions below, how do you feel about applying that approach to the Second Amendment?

[DaveM]

There's nothing "non-originalist" about clarifying ambiguous language. It either happens in a legislature or in a courtroom, take your pick. Me, I pick legislature, every time.

[David Nieporent]

There's something non-originalist about a legislator trying to amend the constitution with a statute. There's a 222 year old case making pretty clear that it's emphatically the province and duty of the judicial department to say what the law is. Is Congressman Babin in the judicial department?

[DaveM]

"Clarify" is not the same as "amend". In fact, it's the opposite. Clarify is what courts do all the time to laws that contain ambiguous language. Legislatures can do the same, obv.

The courts "say what the law is" that the LEGISLATURE wrote.

[David Nieporent]

Setting aside that "clarifying" and "amending" are the same thing here, we're not talking about a law; we're talking about the constitution. Legislatures cannot in fact "clarify" the meanings of constitutional provisions.

[DaveM]

I think what you mean is a legislature cannot clarify the meaning of an amendment without going through the amendment process. You obviously don't literally mean that legislature cannot "in fact 'clarify' the meanings of constitutional provisions", that's too categorical. A legislature wrote the amendment in the first place, and it was ratified by many other legislatures.

Granted, it may very well be that the amendment process has to be followed. It's an interesting question.

[Randal]

Granted, it may very well be that the amendment process has to be followed. It's an interesting question.

I'll take it! (It's not, in fact, an interesting question at all whether the amendment process has to be followed in order to amend -- or "clarify" -- the Constitution, but if this is your attempt to save face, I'm good.)

[Josh R]

Congress has no power to change the meaning of the 14th Amendment, including "subject to the jurisdiction," through ordinary legislation (City of Boerne v. Flores (1997)).

[DaveM]

I'm no lawyer, you're going to have to expand on how this case would apply.

[David Nieporent]

It doesn't have anything to do with birthright citizenship, but it stands for the proposition that the courts, not congress, decide what the 14th amendment means.

[DaveM]

See above. It may be that an amendment process has to be followed. If so, let's get to it. There are MANY things in the Constitution that need to be similarly clarified, such as the meaning of the Commerce Clause, just for one example.

I don't want to live in a country where the tradition of the courts -- which is all over the map -- controls our understanding of the Constitution. I want our country to have laws that match the language of our Constitution.

[Josh R]

The language is often imprecise. We need the courts to set precedent on what such language means.

[Randal]

This is a noble attempt but not really correct.

The language is often imprecise, but imprecision doesn't imply ambiguity or lack of clarity. It means exactly what it says: imprecision. If I say "I'm from Cleveland," that statement is clear and unambiguous. It's imprecise if what you need to know is my address.

The argument of many here is that "jurisdiction" (and "invasion") are imprecise and therefore ambiguous, and therefore can mean anything anyone wants them to mean. It's like if you said, "Ok you told me you live in Cleveland, but you didn't tell me your address, so I'm gonna resolve that ambiguity myself and assume your address in Philadelphia." It's a disingenuous, bad faith argument. Don't encourage it.

In particular, in the case of the imprecision of the Constitution, it really is the Legislature that gets to fill in the details. For example, the Electoral Count Reform Act filled in the details of the procedure outlined in the Constitution.

The role of the courts, really, is simply to ensure that Congress and the Executive color within the lines, as it were.

[Josh R]

I get that "subject to the jurisdiction" may not be ambiguous. But, I am assuming for the sake of argument, it is. Again, Congress filling in the details on the substance of the 14th Amendment is precluded by City of Boerne v. Flores.

[Randal]

We're saying the same thing. From Flores, Congress has the power to "enforce," but not to "change the meaning of," the 14th Amendment.

"Enforce" is roughly equivalent to "filling in the details," as in my Electoral Count example.

"Change the meaning" is roughly equivalent to "resolving ambiguity" -- the sole province of the Court.

Discerning imprecision from ambiguity is super critical when it comes to constitutional interpretation. (Also statutory interpretation, which Looper Bright totally failed to appreciate.)

[Davy C]

You think "I'm from Cleveland" is clear and unambiguous? There's a Cleveland in Wisconsin. And being "from" there could mean it's where you grew up or it's where you're living now.

[Randal]

Thanks for springing my trap! It's also the case that in practice, ambiguity can be found in any statement. It's just a fact of language. But again, that's not a license to throw reason out the window and pretend a statement means whatever you want. You know very well which Cleveland I meant, for example.

[Zarniwoop]

I want our country to have laws that match the language of our Constitution.

That is, happily enough, the exact state of current law. Para 2 of the Complaint:

The President’s Executive Order, issued on January 20, 2025, and styled “Protecting the Meaning and Value of American Citizenship” (Citizenship Stripping Order),1 is contrary to the plain terms of the Fourteenth Amendment’s Citizenship Clause and Section 1401 of the Immigration and Nationality Act.... The Fourteenth Amendment and federal law automatically confer citizenship upon individuals born in the United States and subject to its jurisdiction.

(emphasis added.) And para 39:

Congress likewise has reaffirmed through statute the Citizenship Clause’s commandment regarding birthright citizenship. The Immigration and Nationality Act states: “The following shall be nationals and citizens at birth: (a) a person born in the United States, and subject to the jurisdiction thereof.” 8 U.S.C. § 1401(a). This language was originally enacted in 1940, well after Wong Kim Ark, and taken directly from the Fourteenth Amendment.

But if Congress passed a law purporting to redefine "subject to the jurisdiction" to mean less than the Constitutional scope of the 14th Amd., then you'd have a mismatch instead of the current match.

And as various folks are trying to explain, Congress (or the Prez) can't simply pull a magic wand out of their posteriors to do that.

[Josh R]

Quoting from the decision:

The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States.

[Noscitur a sociis]

The meaning of "under the jurisdiction thereof" is ambiguous, certainly, but we do not need to await a court order to resolve the uncertainty. Congress can pass a law which clarifies the meaning of this phrase.

… a law which would then immediately be the subject of a lawsuit leaving it to be resolved by a court order.

[TwelveInchPianist]

I would be opposed to it, but I'm not sure if anything prevents Congress from passing a law saying that children of illegal aliens are not subject to the laws of the US on the day of their birth. (Or, conversely, saying that the children of people with diplomatic immunity are subject to the laws of the US on the day of their birth.)

[Davy C]

I don't think Congress can change the meaning of the phrase; that would be like passing legislation "clarifying" that rifles are not "arms" and therefore not subject to the Second Amendment.

Congress might be able to disclaim jurisdiction on illegal immigrants, but that seems like a supremely bad idea.

[Zarniwoop]

My Con Law II prof (many years ago!) was fond of reminding students to think about the impact of a legal argument if it's used against a specific cause you happen to favor.

There were definitely some folks that couldn't or wouldn't wrap their head around that. It often came up in determining the appropriate standard of review: they were reliably and predictably in favor of rationale basis for a position they liked, and strict scrutiny for positions they opposed.

"Can Congress simply redefine 'arms' as used in the 2nd Amd. to mean only weapons that existed in 1790? And should the S.Ct. then review that under a rational basis standard of review?" seems like a fine example of this phenom.

[DaveM]

Lawyers, sheesh. Legislatures make laws, not courts. Of course they can define what terms mean in the laws they create. Granted an amendment may have a longer process.

[Davy C]

They can define what terms mean in the laws they create, yes. But they can't change the meaning of the terms in a constitutional amendment with ordinary legislation. To do that takes another amendment (and Congress cannot, by itself, pass an amendment.)

[David Nieporent]

Congress might be able to disclaim jurisdiction on illegal immigrants, but that seems like a supremely bad idea.

We could name it the "Laken Riley's Killer Gets Out of Jail Free" law.

[Dan Schiavetta]

It's only three days in and already Trump is making us look ridiculous in the eyes of the world.

[Flight-ER-Doc]

OK, the kids can stay.

The criminal parents can GTFO

[Zarniwoop]

Which is a completely Constitutional position to take.

There are layers of policy issues to solve, but not Constitutional ones.

[Josh R]

Don't the kids have a fundamental right to both be in the USA and be raised by their parents?

[Zarniwoop]

I doubt it. US citizens are routinely raised by non-parents when, for example, parents are in jail ... or deported.

And deported parents can choose to take their born-in-US child with them. The born-in-US child does not lose their US citizenship, which attaches at birth.

Also, in what sense are you using "fundamental right" here?

[Josh R]

in what sense are you using "fundamental right" here

Normative. It strikes me as wrong to say there is a choice between the family being separated and staying together outside the USA.

[Flight-ER-Doc]

Where is the right elucidated that they are Constitutionally entitled to be raised by criminals?

[Josh R]

For those who overstayed their visas, there is no crime. For most of those who entered the country illegally, that is their only crime. It does not justify family separation.

[Flight-ER-Doc]

They get to choose: They can return with their US citizen children, or without. But what right do criminals have to remain in the US?

[Josh R]

Try responding to what I posed this time: many are not criminals and many should not be treated as criminals because their only crime is illegal entry.

[MaddogEngineer]

Gee, I guess we're back to loving national injunctions/TROs.

[Jason Cavanaugh]

Gee, I guess MAGAtards don't care about the Constitution being deliberately violated.

[MaddogEngineer]

I guess you're a full re-tard then. Because I've never voted for Trump. You don't even know how I feel about the topic. (I think this EO is wrong.)

Good as time as any to say again that liberals can't wrap their minds around the possibility that someone who disagrees with them doesn't go neatly into a particular box. You don't know how to insult non-MAGA conservatives. Never crossed your mind that someone might have a principled concern about this nationwide injunctions at the district level. My comment had nothing to do with the issue at hand. Only whether partisans were bothered about whose ox was being gored.

Does the Constitution have a secret clause that district court nationwide injunctions/TRO only are llowed when liberals think the Constitution is being *deliberately* violated? You're the worst kind of partisan hack.

"Deliberately." I strenuously object, your honor!

[Jason Cavanaugh]

With regards to your political viewpoint: The people who have defended it are MAGA, and your empty snark gave no reason to suspect you aren't one of them. Good for you if you never voted for Trump. I'm still not a liberal.

SCOTUS has settled this issue already. Twice.

For the President to simply declare this SCOTUS precedent is wrong so he'll do whatever he wants is in fact a deliberate violation of the Constitution.

If your 'principled concern' about injunctions takes priority over blatant unconstitutionality, then your principles aren't ordered correctly.

[Mr. Bumble]

So to recap:
An action brought by individuals with no standing gets a district court judge to declare a nationwide injunction which will expire before the challenged EO even goes into effect and this has generated hundreds of comments on multiple posts.
To be continued in the next open thread in less than 30 minutes.

[F.D. Wolf]

Haitian gang member with 17 convictions taken into ICE custody:

F*ck Trump! You feel me? Yo, Biden forever, bro! Thank Obama for everything he did for me, bro!

Somin feels you, bro. Bon voyage.

https://x.com/Breaking911/status/1882448036607164794

[CindyF]

"The TRO blocks the order for 14 days and is a sign that courts are highly skeptical of Trump's position."

Actually, it is a sign that one judge in one far-left district is against Trump's position. One judge does not a "courts" make.

[With Trump in, "now Lord you can let your servant go in peace"]

They used to teach in law school that no part of a law can be considered superfluous (yes, not profound) and this law has "and subject to the ...." so it isn't just birth.
VERY OBVIOUS

[David Nieporent]

Did you think, "These words must mean something so therefore they must mean something they clearly don't mean rather than the thing they've been long-established to mean" was a clever argument?

[MaddogEngineer]

See, being an (original public meaning ) originalist isn't that difficult! So clever!

(No, I am not saying that the public meaning is always accessible, therefore the methodology can be applied in all cases, to anticipate that straw man.)

[CronosTruth]

You can have your arguments, but you aren't the arbiter of judging whether they are right.