My Prediction For The Birthright Citizenship Cases: The Court Will Rule Against Trump On The Merits And Bypass All Other Procedural Issues

There are certainly five votes on the meaning of the Fourteenth Amendment, but there are not five votes about nationwide injunctions.

On Thursday, the Supreme Court will hear oral argument in the birthright citizenship cases. The government's emergency application presents several significant issues about the scope of the nationwide injunctions and other pressing procedural issues. Will the Court settle any of these long-standing, nagging issues? I doubt it. There are certainly five votes, and probably seven votes, and maybe even eight votes, to declare the executive order unconstitutional on its face. That ruling would bring all litigation to a halt. But I doubt there are five votes to reach a consensus about nationwide injunctions. That's why the Court rushed oral arguments: to put together a merits ruling against Trump, and make this case vanish. Chief Justice Roberts has bigger fish to fry in his quest to save democracy from itself.

I think the Court will do something similar with the Alien Enemies Act cases. There are a host of complex procedural issues. Can you certify a class under Rule 23 for a TRO? What is the interaction between the APA and Habeas Corpus? What level of deference is due when the President declares an invasion? And so on. It is far simpler to find that Trump's order was invalid because reasons. The Chief will make up some rationale that does not foreclose a future president from exercising his statutory powers. I offered this prediction a few weeks ago:

I actually think the Court will bypass the 5th Circuit and all of the procedural issues by simply ruling against Trump on the merits.

Meanwhile, deep in the heart of Texas, Judge Hendrix declined to certify a class of the aliens in Abilene Division, even though the Supreme Court's granted relief to the "putative" class on a temporary basis nearly a month ago. I doubt the Supreme Court will ever let a case arrive from the Fifth Circuit. Far easier to affirm a ruling from one of the sensible judges in the Beltway who orders planes to turn around.

Comments

[Sarcastr0]

So it's all a conspiracy against Trump and the Supreme Court is in on it.

Only Texas stands in their way, it seems.

Not even a fig leaf of difference between you and some of the lower shitposters in this commentariat these days.

[Zarniwoop]

Unless I'm getting Poe'd, even the shitposters here have lost JB on some issues:

Meanwhile, deep in the heart of Texas, Judge Hendrix declined to certify a class of the aliens in Abilene Division, even though the Supreme Court's granted relief to the "putative" class on a temporary basis nearly a month ago. I doubt the Supreme Court will ever let a case arrive from the Fifth Circuit. Far easier to affirm a ruling from one the sensible judges in the Beltway who orders planes to turn around.

I have read, but not independently confirmed, that Judge Hendrix sits in a single-judge division. The ACLU doesn't need to file a separate habeas case for every potential AEA detainee while the S.Ct.'s order is in effect, but they might be able to file enough to make J.Hendrix reconsider the whole "judicial efficiency of resolving common Qs of law" aspect if they wanted to.

[not guilty]

The merits of the birthright citizenship cases, which are plain and simple, do not explain why SCOTUS scheduled oral argument during the current term. Indeed, the applications for a partial stay did not even request a merits ruling; they sought review only of the nationwide character of the pending preliminary injunctions.

As I have suggested before, I expect that the Court will erect some guardrails to curtail abuse of the emergency docket. Perhaps requiring leave of the circuit justice to file a so-called "emergency" motion in civil cases would work, with stringent criteria for when such leave should be granted.

None of the nine justices signed on to micromanage the executive branch of government, which is the posture that the Trump administration has improvidently thrust upon them. And I surmise that none of them wants his or her vacation plans to be interrupted by multiple "emergency" motions every week during the recess.

[JoeFromtheBronx]

Roberts, in his recent interview (broadcast on C-SPAN) with another federal judge, noted the value of summer recess generally free from work.

[MollyGodiva]

In normal years yes, but Trump will keep them occupied at least part of the summer.

[Brett Bellmore]

Everybody can see the value, to themselves, of a summer generally free from work. Employers do not see the value, and usually insist that such summers also be free of pay, and often future employment.

[Riva]

No, the lower courts have been trying to micromanage the executive branch, to an irresponsible degree never seen before in our history. And the S.Ct. has largely sat on its backside and let it happen. An emergency results from the judicial abuses of the lower courts.

[Zarniwoop]

The great part is that at least with respect to the current hearing, there are outcomes that will probably be only a month or two away. JB has put down a marker. He could be right! Or kinda-sorta close, or bass-ackwards wrong. I don't usually agree with JB, but advance predictions are interesting. Unlike your boring "buh-buh-but courts can't DO that!!1!" whining.

So what's your prediction? Not your usual King Trump foot worship; give us a testable prediction.

Put up, or STFU and STFD.

[Purple Martin]

Advance predictions are the best kind!

[Zarniwoop]

I seem to recall JB taking credit for the non-advance kind, tho!

[David Nieporent]

Look, the bot is having another tantrum because he doesn't understand the role of the judiciary.

[ReaderY]

I am very confident that the Court’s opinion on the AEA cases will, as Professor Blackman said, “not foreclose a future president from exercising his [sic] powers.” This will not be, however, because “the Chief will make up some rationale.” It

1. First and fundamentally, as every lower court to consider the question has said, the powers involved are not the President’s to begin with. They are solely Congress’. A President only has these powers when the circumstances under which Congress granted the powers and authorized their exercise arise.

2. The circumstance under which Congress granted the powers and permitted them to be used most definitely did NOT arise in this case. Mr. Trump’s claim they did just ain’t so.

This is not “coming up with some reason.” This is clear, black-letter law. In presenting Chief Justice Roberts as always coming up with post-hoc legal-sounding reasons to serve essentially political ends, Professor Blackman - or as the ever-polite Brian Steel might put it, let me rephrase that, Mr. Blackman - is diffusing his own guilty conscience for his own behavior by projecting his behavior onto the Chief Justice. He himself consistently does exactly what he accuses their opponents Chief Justice of.

I suggest Mr. Blackman see a shrink. At the very least, own up to the consistent MAGA practice of accusing omes opponents of doing exactly what one is doing oneself.

Just as in the 2020 election Trump’s team accused falsely state election officials of fraud in order to throw out votes and steal the election, doing exactly what they accused their opponents of doing, Mr. Blackman is here doing exactly the same thing, accusing the Chief Justice of coming up with nonsense legal reasons as a blatant cover for political manipulation. Mr. Blackman could not have described his own behavior more astutely.

[santamonica811]

This, in a nutshell.

[MollyGodiva]

SCOTUS could punt on the issues, but they know it will be right back before them next year. This is not a difficult case to decide on the merits, so I think they will do it.

Either way you will have a Thomas/Alito dissent against national injunctions.

[y81]

The Court can punt on the Constitutional issue by saying that any change has to come from Congress. Like what they did on the insurrection issue. That will dispose of the citizenship issue for the foreseeable future.

[MollyGodiva]

They only did that to protect Trump from being (properly) disqualified. The whole part about Congress needing to disqualify someone they just made up. I doubt they will do it here, especially since the Constitution is clear.

[y81]

Time will tell. I have put my marker down.

[Brett Bellmore]

"The whole part about Congress needing to disqualify someone they just made up."

Seriously, read the Supreme court ruling, not 3rd or 4th hand complaints about it.

They said that Section 3 required enabling legislation, and identified the federal insurrection law as the only current enabling legislation.

If Congress wanted disqualifying somebody to be easier than convicting them of a particular federal felony or successfully impeaching them, they could. At one time they'd authorized a civil procedure, (Which also wasn't available to state governments, btw.) they just repealed it about a century ago.

[Brett Bellmore]

"Like what they did on the insurrection issue."

Just to clarify, on the insurrection issue they didn't just say that it would have to come from Congress. They said that it HAD come from Congress, and if you wanted to invoke Section 3, convict somebody of insurrection first, as the relevant law required.

[Zarniwoop]

Either way you will have a Thomas/Alito dissent against national injunctions.

I could see a 7-2 ruling maintaining the stay. But if there's ever a case where a nationwide injunction is appropriate, this is it. I can also see some partial concurrences that are narrowing, based on "unique circumstances of this case" sort of weasel-retreats even by Thomas and Alito.

[Riva]

Yeah well Mollie, not that simple, but the constitutional text, precedent and historical practice tend to support the arguments against birthright citizenship for the children of illegals or itinerant travelers. But a ruling on that issue would be fairly underhanded when the issue brought to the court, and the one for which review was granted, was the misuse of national injunctions. Although I can see sludge like Roberts planning something like that.

[Zarniwoop]

TLDR Riva: "Courts are wrong if they don't agree with King Trump, but I can't and won't present any legal or factual argument whatso-frackin'-ever. But MAH FEELS!!1! So Libz are stoooopid."

[not guilty]

"Yeah well Mollie, not that simple, but the constitutional text, precedent and historical practice tend to support the arguments against birthright citizenship for the children of illegals or itinerant travelers."

Another blatant falsehood from Riva, who seems to regard truth as such a precious commodity that it should be used sparingly. The Fourteenth Amendment, § 1 has been consistently interpreted to confer citizenship on persons born here, subject only to the narrow exceptions recognized in United States v. Wong Kim Ark, 169 U.S. 649 (1898). See, e.g., INS v. Rios-Pineda, 471 U.S. 444, 446 (1985) (recognizing that child of two undocumented immigrants “was a citizen of this country” by virtue of being “born in the United States”). To quote footnote 1 of the responsive brief of the States of Washington, Arizona, Illinois and Oregon:

Accord United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 73 (1957) (recognizing that a child born to parents who overstayed temporary lawful stays was “of course, an American citizen by birth.”); see also id. at 79 (Douglas, J., dissenting) (“The citizen is a five-year-old boy who was born here and who, therefore, is entitled to all the rights, privileges, and immunities which the Fourteenth Amendment bestows on every citizen.”); Vance v. Terrazas, 444 U.S. 252, 255 (1980) (“Appellee . . . was born in this country, the son of a Mexican citizen. He thus acquired at birth both United States and Mexican citizenship.”); INS v. Errico, 385 U.S. 214, 215 (1966) (explaining that children born in United States to parents who procured entry to country by fraudulent means “acquired United States citizenship at birth”); Nishikawa v. Dulles, 356 U.S. 129, 131 (1958) (“Petitioner was born in Artesia, California, in 1916. By reason of that fact, he was a citizen of the United States, and because of the citizenship of his parents, he was also considered by Japan to be a citizen of that country.”); Kawakita v. United States, 343 U.S. 717, 720 (1952) (noting that petitioner was born in the United States to Japanese citizen parents and “was thus a citizen of the United States by birth”); Hirabayashi v. United States, 320 U.S. 81, 96-97 (1943) (noting that tens of thousands of “persons of Japanese descent” living on Pacific coast “are citizens because [they were] born in the United States[,]” even though “under many circumstances” they also were citizens of Japan “by Japanese law”); Morrison v. California, 291 U.S. 82, 85 (1934) (“A person of Japanese race is a citizen of the United States if he was born within the United States.”); Weedin v. Chin Bow, 274 U.S. 657, 670 (1927) (discussing Wong Kim Ark and noting that a child born in the United States “was nevertheless, under the language of the Fourteenth Amendment, a citizen of the United States by virtue of the jus soli embodied in the amendment”); Ah How v. United States, 193 U.S. 65, 65 (1904) (stating petitioner offered evidence that he was born in the United States “and therefore was a citizen”).

https://www.supremecourt.gov/DocketPDF/24/24A885/354760/20250404111851793_24A885_PlaintiffStates_ResponseEmergencyStay.pdf

[Roger S]

That is quite a footnote, but those cases mainly just refer to someone being considered a citizen. What they do not do is decide that the 14A requires it. If the issue was not contested, then the court just recites what the parties say.

[not guilty]

"If the issue was not contested, then the court just recites what the parties say."

Uh, no.

[Riva]

Yes, it’s less than nothing. It’s not even dicta, which is your usual go to. And, while INS v Rios-Pineda may reference the number 14 somewhere, it has nothing to do with the 14th amendment, let alone the citizenship clause. I doesn’t even mention the 14th amendment and it actually held in favor of the government: “Because we conclude that, here, the refusal to reopen the suspension proceeding was within the discretion of the Attorney General, we reverse the decision of the Court of Appeals.” Did you often rely on party briefs as authority in your practice?

[David Nieporent]

Just to add on to what ng said: to claim that the 14th amendment is unclear as to birthright citizenship is dumb. To claim that Wong Kim Ark is unclear as to birthright citizenship is bullshit. But to claim that courts since WKA have not uniformly interpreted WKA as upholding birthright citizenship is a flat out lie.

(To be clear: there are judges that have argued that birthright citizenship shouldn't be the law. But their argument has been that SCOTUS should overrule WKA; their argument is not "we should pretend that WKA says something entirely different than it says.")

[Riva]

To claim that the S.Ct. has ruled that the offspring of illegals, or any itinerant traveler, are entitled to birth right citizenship is beyond dumb. It's intentionally dishonest. (and to be clear, in things related to the Constitution, crazy Dave wouldn't recognize a good argument if it swam up and bit him on the ass. Ask him about the separation of powers or the Executive Vesting Clause if you need a good laugh).

[David Nieporent]

The children of illegal aliens and itinerant travelers are subject to the jurisdiction of the United States. QED.

[Riva]

If the counsel in support of the birthright citizenship fanatics adopt crazy Dave’s arguments, the hearing should prove amusing if nothing else.

[ducksalad]

Hey, Riva, here is a direct quote from the Supreme Court majority opinion in Plyer vs. Doe:

"[N]o plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."

You were wrong. Stop digging.

[Riva]

The question before the court in the present matter does not involve whether a state can deny illegal school age children free public school education consistent with the Equal Protection Clause of the Fourteenth Amendment. Frankly, Plyer v Doe should be reexamined, but recognizing that the children of illegals are not entitled to birth right citizenship would not directly impact that case, notwithstanding some unnecessarily over broad language used by the Court in an ancillary footnote.

[MollyGodiva]

It is not possible for the writes of 14A to have intended to exclude undocumented immigrants because there was no such thing as an undocumented immigrant in 1868. Historical practice sinew 14A ratification was everyone born in the US was a citizen, with few exceptions for diplomats and Indians.

[Roger S]

And exceptions also for scenarios that they did not anticipate.

[MollyGodiva]

Exceptions they did not anticipate are not exceptions. You can't just muck with the Constitution when you decide there are a new groups you want to hurt.

[Speaking for normal people]

You just argued against yourself for in any case the question IS are they in the diplomat and Indian category.
and 14A is certainly a useless point

The 1866 Civil Rights Act, which the 14th Amendment was designed to codify and constitutionalize, clearly excluded children who, through their parents, were subject to a foreign power.

Key Proponents of the 14th Amendment expressly stated that “subject to the jurisdiction” meant complete jurisdiction, not merely partial, territorial jurisdiction. ...............................................................................

For Nearly 100 Years After Adoption of the 14th Amendment, Both Con-gress and the Executive Branch Recognized That More Than Birth Alone Was Necessary For Automatic Citizenship.
A. Indian Citizenship Act of 1924

As the California legislature has recently recognized, an estimated “two million people of Mexican ancestry were forcibly relo-cated to Mexico, approximately 1.2 million of whom had been born in the United States” and would therefore be citizens under the expansive interpretations advanced by Respondents here.........................................

[Brett Bellmore]

"in any case the question IS are they in the diplomat and Indian category."

And this has always been the best (Not good, just best.) argument Trump had: That foreign nationals ARE "indians" for constitutional purposes, members of the Indian tribes being the only group of foreign nationals present on US soil in large enough numbers to be worth mentioning.

[jb]

Wait, what?

More than 100K immigrants entered the US in 1845, and other than 1861 (right at the start of the Civil War), the number didn't drop below 100K until the Great Depression. Over a million people immigrated in the 5 years leading up to 1868, which means it's possible that there were more non-citizen aliens than Indians in the US at the time. (I say possible because I can't find good estimates of the Indian population in 1868; within a couple of decades it was definitely lower than a million.)

[Brett Bellmore]

It's the difference between the "best" argument somebody has, and a "good" argument.

I think Trump loses on this, and deservedly so. But not for lack of being able to come up with an argument in favor of his position. He just doesn't have any GOOD arguments in favor of it.

[M L]

There are no good arguments for the position that the citizenship clause requires citizenship for birth tourism babies and so on. At least, not from an originalist perspective.

[David Nieporent]

The good arguments are that the framers of the 14th amendment wanted everyone born here to be citizens rather than having some permanent underclass of stateless residents.

[M L]

Well, I agree that nobody was trying to create a "permanent underclass of stateless residents." It's only those who had a state, who were not stateless at all, that would be excluded from subjectship jurisdiction.

Of course, at the time, such people wouldn't generally be permanent residents, either. Because if someone had taken up legal permanent residency here, they were generally treated as having exercised their natural right to abandon foreign allegiances. And at the time, there were no limits on immigration, due to the huge obstacle of crossing oceans to get here, and the vast expanses of wilderness available for settlement.

[David Nieporent]

Well, I agree that nobody was trying to create a "permanent underclass of stateless residents." It's only those who had a state, who were not stateless at all, that would be excluded from subjectship jurisdiction.

Again: that would make American citizenship dependent on foreign law rather than American law. Nobody thought that was right.

Because if someone had taken up legal permanent residency here, they were generally treated as having exercised their natural right to abandon foreign allegiances.

That is, of course, not correct; migration and naturalization were well understood to be different concepts. That's why you had to renounce your foreign citizenship as a condition of naturalization, not immigration.

And, to be clear, "legal permanent residency" wasn't a thing; you're being anachronistic.

[M L]

"that would make American citizenship dependent on foreign law"

That's not true by any stretch of the imagination. The U.S. would decide for itself which foreign claims to recognize, and expressly recognized a natural right of expatriation, directly contradicting English common law and all foreign laws generally. And the debates, for example, clearly describe that Congress would generally have the power to decide who would be brought into the fold of full U.S. jurisdiction.

[David Nieporent]

And the debates, for example, clearly describe that Congress would generally have the power to decide who would be brought into the fold of full U.S. jurisdiction.

I mean, no; literally the whole point of the 14th amendment was to take it out of the hands of the government.

EDIT: Of course, Congress could always add more people, but it couldn't take away citizenship.

[M L]

Brett, here are some of the typical arguments for the position that the citizenship clause requires citizenship for birth tourism babies and the offspring of illegal immigrants.

1. Wong Kim Ark - Taking some overbroad language from WKA and trying to construe the holding as broader than it was, of course without getting into whether even the actual narrow holding was correct as an originalist matter.

2. Bureaucratic practice - The bureaucracy has been presumptively recognizing citizenship for these categories for some number of decades, as referenced in various case cites for example, and this has somehow leveled up into a constitutional rule!

3. And the most common, Ad Populum/Authority - 89% of liberal law professors and mainstream media articles agree with me!

None of those are originalist arguments, and none of those are particularly good arguments. Yet they are better than the originalist arguments available, because there are virtually none available.

[ducksalad]

Originalist arguments, you mean like stuff said during the debate in Congress? The items below come from James C. Ho's 2006 paper (https://www.gibsondunn.com/wp-content/uploads/documents/publications/Ho-DefiningAmerican.pdf)

Senator Trumbull: "the stray references by Trumbull and others to “allegiance” were made during the debate over tribal sovereignty, not alienage generally. Indeed, Trumbull himself confirmed that the Howard text covers all persons “who are subject to our laws.”"

Senator Hendricks: if “[w]e can make [a person] obey our laws, … being liable to such obedience he is subject to the jurisdiction of the United States”

Senator Cowan, speaking against the amendment because he admitted and deplored that it would grant citizenship to "people who … owe [my state] no allegiance; who pretend to owe none; who recognize no authority in her government; who have a distinct, independent government of their own …; who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen, and perform none of the duties which devolve upon him."

"But in fact, proponents and opponents of birthright citizenship alike consistently interpreted the Act, just as they did the Fourteenth Amendment, to cover the children of aliens. In one exchange, Cowan, in a preview of his later opposition to the Howard text, “ask[ed] whether [the Act] will not have the
effect of naturalizing the children of Chinese and Gypsies born in this country?” Trumbull replied: “Undoubtedly. … [T]he child of an Asiatic is just as much a citizen as the child of a European.”

[SRG2]

Key Proponents of the 14th Amendment expressly stated that “subject to the jurisdiction” meant complete jurisdiction, not merely partial, territorial jurisdiction.

Exactly. Which disproves the point you're trying to make, because if that really was what had been intended, it would have been in the text of the Amendment itself, and hence the omission is intentional, not an oversight.

[David Nieporent]

I mean yes, you're right, but also no, in that children of illegal immigrants born in the US are subject to the complete jurisdiction of the United States.

[David Nieporent]

You just argued against yourself for in any case the question IS are they in the diplomat and Indian category.

No, that's not a question. Illegal immigrants are not diplomats. Nor are they Indians. (If they were, they'd be citizens by virtue of the Indian Citizenship Act!)

[MollyGodiva]

Children of immigrants were citizens back then.

[Zarniwoop]

Prof Blackmun, who is your lone holdout for an 8-1 decision? Thomas or Alito?

There are certainly five votes, and probably seven votes, and maybe even eight votes, to declare the executive order unconstitutional on its face.

[SRG2]

I wondered about that. It could be either. The more I try to work out from their own alleged principles who might dissent, the more it's unclear.

[Vryedni]

Josh is having a sad. Why is Roberts such a meanie?

[cannpro]

Josh is jealous Roberts won't return his phone calls.

[Zarniwoop]

I don't agree that the S.Ct. needs to - or will - decide the ultimate constitutional merits here. The issue at the hearing is the stay. They can "strongly indicate" that Stephen Miller's wet dream of rewriting the 14th Amd is unlikely to succeed, and thus keep the nationwide injunction "in the interests of uniform rules for citizenship; interests that are not necessarily applicable to most cases". Then let the merits percolate.

[MollyGodiva]

That seems like a waste of court resources to punt now only to get it back later. The merits of the case is easy.

[Zarniwoop]

I do not disagree with you on the merits.

But! That's also a different Q than the process of "what have we agreed to decide, and is now the time to decide everything?"

If Trump declares that "2+2=17", and a district court says "Imma enjoin that" ... and the S.Ct. agrees to review the injunction .... that's not the right procedural posture for the S.Ct. to weigh in on whether calculus is good math. Even when calculus is also obviously correct.

[MollyGodiva]

Ask me how much I care about "procedural posture"? This is stupid. Trump is issuing illegal orders faster than they can be litigated. We need as short cut way to deal with the really stupid ones.

[Zarniwoop]

Shrug. I suspect the S.Ct. may care about procedural posture even though both you and Riva want to jump ahead to the merits.

A different way for the Justices to get this stuff on the table: a technically narrow procedural ruling that says
1) questions of citizenship are uniquely national in scope, so they decline to lift the stay;
coupled with a “reminder” (i.e. dicta) to lower courts that says
2) only the S.Ct. can overrule Wong Kim Arks’ grant of birthright citizenship.

Frankly, this is a really, really lousy vehicle for the conservatives on the Court to try to make their case against nationwide injunctions. Taking an “L” on this case while trying to limit the damage to “the unique national scope” may be attractive to them.

[A Japanese Student]

That's an interesting argument - the Constitution does require "uniform Rule of Naturalization".

[Roger S]

There is no such constitutional requirement.

[Brett Bellmore]

It authorizes a uniform Rule of Naturalization. I don't believe it can be read as requiring one, save in the sense that, if Congress originates a rule of naturalization, it has to be uniform.

[David Nieporent]

I agree that, in the abstract, given the procedural posture of the case, deciding on birthright citizenship would be a mistake; that's not the QP, which is purely about a stay. Here's the problem, though:

1) I don't think there's much chance this court is going to uphold so-called nationwide injunctions generally;
2) this is a terrible vehicle for eliminating nationwide injunctions, because citizenship is one of the areas that does call for nationwide uniformity;
3) there would be absolutely no point in taking the case at this juncture to issue a narrow ruling saying, "In this particular situation we think a nationwide injunction is okay." (And if they frame it as, "Nationwide injunctions are generally bad but in this particular situation we think a nationwide injunction is okay," the first part of that would be dicta.)

So I don't really understand what SCOTUS is doing here.

[Zarniwoop]

1) agreed. I think “citizenship is uniquely national” is something a majority (and maybe a strong majority) could get behind, and punt the harder issue of where to draw the line. Maybe some concurrences on finer points, and either a dissent or concur-while-attempting-to-limit-damage from Thomas/Alito.

2) agreed. Any serious effort to limit nationwide injunctions would have picked an egregious lower court example and appealed that instead. So while I wonder what the S.Ct. is doing here, I also wonder what anti-national-injuction folks in the administration are thinking here.

3) this is the crux of the biscuit: why? Each Justice can have different motive(s) for voting to hear the case.

Perhaps the liberals+Roberts want the first case to directly address national injunctions under the Trump administration to be a slam-dunk for national injunctions. The exact line might be hard, the Court should leave that for another day ... but now it will start that debate from the position that national injunctions are very definitely allowable in at least some circumstances. After that, as the joke goes, they’re just haggling about the price.

I can pull a more conspiratorial guess straight out of my posterior: signal to the administration and lower courts that “if we have to keep ruling on ‘emergency’ appeals, the administration is going to lose worse than it would via regular process” (sort of what not guilty suggests). What to look out for that might indicate this? Perhaps language in a procedural order that says “lower courts should be wary of EOs that purport to make sudden and massive constitutional paradigm shifts, and freely grant injunctions in such cases to maintain the status quo and allow cases to proceed in regular order”. Dicta … but “we’re getting annoyed, folks” dicta that even the 5th Cir might take note of.

[Charlie Feather]

So, some people write some words making an overly broad and badly written law, and a century and a half later, we have to live with the consequences no matter how destructive it may be.

The Supreme Court has added a modern interpretation to the 2nd amendment as well as to the 1st amendment. There is no reason why it shouldn't do so to make the 14th amendment something other than a suicide pact.

[Area Man]

“So, some people write some words making an overly broad and badly written law, and a century and a half later, we have to live with the consequences no matter how destructive it may be.”

Yup, that’s how constitutions work. Indeed, that’s how all laws work. They’re in force until amended, repealed, or replaced.

It’s so funny that on this issue nearly every leftwinger is an arch originalist, and nearly every rightwinger is a rabid living constitutionalist.

[MollyGodiva]

MAGAs are so fucking bigots. These are babies. This is not a "suicide pact".

[NvEric]

You are the bigot and the colonialist !
Native peoples are against more being allowed in. It's colonialism, and you are an advocate to further the destruction of the continent and its people.

[wnoise]

This screams of being the work of a non-native speaker.

[Roger S]

Is the prediction here that Scotus will declare that the 14A mandates birth tourism and anchor babies? I don't think so.

[Zarniwoop]

I would love to hear your actual predictions. Put down a marker. DOOO EEET!

I think the S.Ct. will reject Trump's executive order trying to rewrite the last 125 years of the 14th Amd. My call: born in the US --> US Citizen (subject to narrow limits like kids of ambassadors).

Agree? Or not?

Or ... will you chicken out and spew more nonsense propaganda points while dodging the issue like Riva? Genuinely curious.

[Roger S]

No, not 125 years. Scotus has never directly ruled on 14A birthright citizenship. Scotus may not get to the merits this time, but when it does, I doubt that it will require birth tourism citizenship. Nobody favored that, until recent years. Scotus will say that exceptions to birthright citizens can be made, similar to what Trump's EO says.

[cannpro]

Pretty sparing on the legal arguments, aren’t we? Brightright citizenship has been the rule since before our country’s independence.

[Roger S]

Yes, if I were Scotus, I would have to make a more detailed argument. The 14A does not say everyone born in the USA is a citizen. It is qualified in a confusing way. I expect Scotus to make sense of it in a way that does not require the absurdities that go on today. An illegal alien can give birth in NYC, go back to her home country, and the child can show up decades later and claim citizenship. No, I do not think anyone intended the 14A to mean that, and I do not think Scotus will accept it.

[cannpro]

Then explain Lynch v Clarke from 1844 where the court found exactly that, a child born to Irish parents visiting for less than a year was a citizen upon returning more than 20 years later. This isn’t exactly modern woke leftist jurisprudence.

[Roger S]

Good point. An 1844 opinion said that Irish have birthright citizenship, but not Negroes and Indians. We need to update our thinking to the 21st century.

[cannpro]

At least you’ve said the quiet part out loud and admitted you’re racist. Quite bold to publicly admit you don’t think Indians or Negroes should be citizens. I’ll reference this quote anytime you comment from now on so everyone can see you are a white supremicist.

[Roger S]

I was just citing 1844 law.

[cannpro]

What? No you weren’t. Read the case. Judge ruled anyone born in the US is a citizen. That includes Negroes and Indians.

[not guilty]

"Scotus has never directly ruled on 14A birthright citizenship."

That, Roger S, is a flat out lie.

[Roger S]

Perhaps you are thinking of Wong Kim Ark 1898, but that does not apply to illegal alien kids of today. And it is ancient history.

[cannpro]

LMFAO, ancient history? That is called precedent. All originalist legal theory is ancient history. That’s how it’s supposed to work.

[Drewski]

Since we're laying down predictions, I roughly agree with you. I think they'll affirm birthright citizenship by dictum, but limit their formal holding to the question presented. I further predict that Alito will write separately to complain about procedure, but will likely concur on at least part. I have no guess on whether or how the majority will respond.

[Zarniwoop]

Thanks - I look forward to seeing how actual predictions come out!

Def. more interesting than the daily frothing at the mouth from the usual Stephen Miller wannabes.

And to his credit (really!) I think Roger S has laid down a marker on the ultimate merits, even if he’s not interested in/capable of thinking about “WTactualF is the S.Ct. trying to do in the hearing this week?”

[cannpro]

What is with Josh Blackman's weird obsession with Justice Roberts? The sexual tension is intense. He does know Roberts doesn't control the court, right? Robert's can't tell the other justices how to vote. When the Court does something there is no reason to believe it is because of machinations from Roberts verses the other justices.

[Speaking for normal people]

[Speaking for normal people]

Thomas G West is consdiered the master of the Philosophy of the Founding and I read him to totally oppose what you say

Go to this website and at the bottom left fiind
Vindicating the Founders, chapter 7, “Immigration and the Moral Conditions of Citizenship.”(pdf)
https://www.hillsdale.edu/faculty/thomas-west/

[David Nieporent]

Thomas G West is consdiered the master of the Philosophy of the Founding

Fun with the passive voice!

[NvEric]

Will the colonialist get their way by allowing a false reading of the Constitution, to allow a suicide pact to continue ?

[Speaking for normal people]

https://www.youtube.com/watch?v=N_8i3hNFZe4&t=39s

THis is years ago but the man who authored the Amicus Curiae in defense of Trump. It is great because it is before the Trump-Biden spat

Washington, Adams and Jefferson's birth certificate read " Great Britain ".

[SRG2]

John Eastman? That's like citing Roland Freisler on German jurisprudence.

[Stella Link's Ghost]

'Washington, Adams and Jefferson's birth certificate read " Great Britain ".'

And Wahington's had the wrong year on it.

Good one. I had thought you to be a humerless gobshite.

[SRG2]

As far as universal injunctions are concerned, it's not too difficult to conceive that the SC will decide whether they're ok depending on the fundamental nature of what is being enjoined. If it be for legislation or orders on matters which arguably (from the conservative wing) can, though not necessarily will, be left to the individual states - which in their view might encompass abortion pills, etc., then no universal injunction. The question here is "is it OK for say Louisiana to ban X while California permits it?" (or vice versa"). If the answer is "yes", no universal injunction.

But if it be for matters which clearly cannot be left to the states, like citizenship of the US, then universal injunctions are fine. (Note that although 14A grants state citizenship as well, no state has the power to remove citizenship from its citizens - 14A is clear that if you're a US citizen, you're also a citizen of the state where you live.)

[Zarniwoop]

In the modern state versus federal structure, those lines are sometimes blurred. I agree that “basic constitutional rules for citizenship” are about as far to the “national scope requiring uniform rules and application” side as you can get.

But taking your abortion pill example, Judge Kacsmaryk in TX tried to ban mifepristone nationwide by purporting to overturn a 20+ year old agency decision - a national regulatory action, not a constitutional issue. How to address cases like that is harder, and way beyond the scope of Thursday’s emergency hearing.

[M L]

It is clear that the original meaning of "subject to the jurisdiction thereof" excluded those who are subject to a foreign power. But I don't expect original meaning to carry much weight with federal judges, including those on SCOTUS, as they seem to be more concerned with results and political impact.

Does "merits" here necessarily mean ruling on that issue, or could it just mean ruling that the executive does not have this authority while leaving open the possibility for legislative action?

[David Nieporent]

It is clear that the original meaning of "subject to the jurisdiction thereof" excluded those who are subject to a foreign power.

Well, that's not clear, but if you want to say that this was the original meaning, that's one thing. But the problem is that all you're doing is substituting one phrase that didn't and doesn't mean what you want it to mean for another phrase that did and does not mean what you want it to mean.

[M L]

It meant, for example, that a "sojourner" (a word used the Congressional debate on the citizenship clause, meaning someone who is temporarily in the country) is not "subject to the jurisdiction" of the U.S., since they are a foreign subject. As another example, it meant that Native Americans were not "subject to jurisdiction," since they were subjects/members of a quasi-foreign sovereign.

This was all true despite the fact that a sojourner or a Native American were obviously subject to US laws, temporarily, if they left their sovereign territories and went on a trip to visit New York City or something.

[David Nieporent]

Sojourners, tourists, students, business travelers, and non-citizen permanent migrants who were/are present here were/are all subject to the jurisdiction of the U.S., despite all being subjects/citizens of a foreign sovereign.

(Though I re-re-re-reiterate that the issue is not the classification of the parents, but that of the children born here.)

[M L]

"What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means." - Trumbull

"Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign power--for that, no doubt, is the meaning of the committee who have brought the matter before us--shall be considered as citizens of the United States." - Johnson

There are countless more quotes in the record explaining this very clearly, and nobody disagreed with it at all, notwithstanding the debates over other issues.

It really takes a fair amount of determination to be so wrong and ignore all this, you have to be very committed to your political stance on birth tourism and open borders issues.

[David Nieporent]

There are countless more quotes in the record explaining this very clearly, and nobody disagreed with it at all, notwithstanding the debates over other issues.

Once again: substituting statements in the Congressional record for the actual text of the constitution (a) does not actually make those statements the constitutional text; and (b) doesn't help you since all you're doing is replacing a mistaken interpretation of the constitutional text with a mistaken interpretation of the statements in the Congressional record.

Neither of those quotes that you say "nobody disagreed with" help your case. People. In. The. U.S. Owe. Allegiance. To. The. U.S. They. Are. Not. Subject. To. Some. Foreign. Power. Sojourners, tourists, business travelers, and permanent residents alike.

The entire point of the citizenship clause of the 14th amendment was to make everyone born here citizens. (Minus the narrow exceptions we've repeatedly discussed.) Your interpretation would entirely thwart that. It would have covered nobody except — possibly — blacks. But if they had only intended to cover blacks, it would have been weird to write some circumlocuitous thing about "subject to the jurisdiction" rather than just saying "blacks."

[M L]

Your argument is that subjects and citizens of a foreign power (a) owe no allegiance to that foreign power, and (b) are not subject to that foreign power, whenever they set foot outside its borders.

That is simply false.

And as I've pointed out before, it is contrary to Prof Ramsey, Judge Jo, and other major proponents of your broader conclusion.

[David Nieporent]

Your argument is that subjects and citizens of a foreign power (a) owe no allegiance to that foreign power, and (b) are not subject to that foreign power, whenever they set foot outside its borders.

Actually my argument is that children of subjects and citizens of a foreign power (a) owe full allegiance to the U.S., and (b) are subject to the U.S., when born here. While your argument is that children born here owe allegiance to, and are subject to, foreign powers based on how their parents crossed the border into the U.S.

[ducksalad]

Yeah ML, there was agreement on what the clause meant.
Here is one of the opponents of the birthright clause:

Senator Cowan opposed the Citizenship Clause precisely because it would extend birthright citizenship to the children of "people who … owe [my state] no allegiance; who pretend to owe none; who recognize no authority in her government; who have a distinct, independent government of their own …; who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen, and perform none of the duties which devolve upon him."

Cowan was specifically worried Gypsies and Chinese, who he thought states should be able to expel.

Now here is one of the proponents of the amendment:

Senator John Conness (R-CA) responded specifically to Cowan’s concerns about extending birthright citizenship to the children of Chinese immigrants: "The proposition before us … relates
simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. … I am in favor of doing so. … We are entirely ready to
accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.

They agreed on what it meant, both opponents and proponents. It meant children of people with no allegiance still get citizenship, and it passed you. Your side knew what it meant, admitted what it meant, voted against it because of what it meant, and they lost.

[ducksalad]

Edit function was fighting back. Probably you get the point.

[M L]

Cowan was arguing for a racial/ethnic distinction to exclude Chinese and Gypsies from citizenship, while including Germans for example. This had nothing to do with foreign subjectship per se (see Germans), but was a racial/ethnic/cultural objection.

The response from Conness and others was that Cowan's comments were irrelevant to the issue at hand ("I have failed to learn, from what the Senator has said, what relation what he has said has to the first section of the constitutional amendment before us"), because all those people were already citizens, under the 1866 CRA and otherwise, if they were born of ancestors who had immigrated here and taken up legal permanent residence and thereby abandoned foreign allegiances. Being of German or Chinese or whatever heritage did not make any difference already, and nothing in the proposed citizenship clause made any difference in that regard. (From 1866 CRA discussion, Trumbull to Cowan: "If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I may be able to appreciate the point which he makes; but the law makes no such distinction; and the child of an Asiatic is just as much of a citizen as the child of a European.")

These quotes support my position entirely, if you take a moment to understand them in context.

[ducksalad]

So what exactly is your position?

Is it some nonsense that the children of illegal aliens aren't required to obey our laws, and thus not under our jurisdiction?

Is it a factually incorrect misunderstanding of foreign law, that all such children are "subject to a foreign power", even if no foreign power claims them?

Is it a stupid theory that breaking any law means one's children aren't citizens? Do your kids not get a passport if daddy got a DWI?

Is it an unfounded belief that legal permanent residents are somehow less subject to a foreign power than legal temporary residents?

Is it putting words into the 1866 CRA that aren't there? The only text is "subject to a foreign power". Somehow you extract from that distinctions about how one entered the US and for how long, with no explanation of what that has to do with any foreign power and their laws.

[ducksalad]

1. It isn't clear and wasn't even in 1867. The opinions of people who lost the debate on the amendment wording aren't good evidence.

2. You're shooting yourself in the foot with the "subject to a foreign power" nonsense, because you're ignorant of foreign citizenship law. For example, a child born to Costa Ricans in the US doesn't automatically get Costa Rican citizenship unless they choose to acquire it.

And when you try to move the goalposts to "could" acquire citizenship - which you will - then you will have proved too much, because there are countries who will grant citizenship to damn near anyone.

Once again, the problem is making US citizenship dependent on laws made by other countries. It leads to all kinds of unintended consequences.

3. The Constitution binds Congress. Disappointing that you still don't understand this.

[M L]

"The opinions of people who lost the debate on the amendment wording aren't good evidence."

That's not the evidence. The evidence is the opinions of the people who won the debate on the amendment. Well, that and also the opinions of the people who lost the debate, actually, since they were all in agreement on this point. By the way, what do you mean exactly by "the debate on the amendment"? Are you referring to the debate that occurred on the Congressional record, and what exactly do you think the issue was in that debate?

[ducksalad]

What I specifically had in mind was the stuff about "allegiance", which did not make it into the text.

[M L]

There was no debate over any "stuff about allegiance" making it into the text.

The reason there was no debate on this was because they all agreed that the text as adopted had the same effect as the 1886 Civil Rights Act language which excluded those "subject to any foreign power." They all agreed on that and there wasn't any debate on it.

What they disagreed on was whether the text as adopted would have the same effect as the 1866 CRA language which excluded "Indians not taxed." So there was debate on whether to add that language, but for both sides, "the object to be arrived at" was the same.

Ultimately, the language was not added, because most of them thought it was so clear that "subject to the jurisdiction thereof" excluded anyone with a hint of foreign allegiances, that it would even exclude those subject to a "quasi" foreign power such as the Indian tribes.

[ducksalad]

I've posted quotes in other parts of the thread that show you're 180% off.

In fact, opponents voted against the amendment specifically because it did NOT require allegiance. They said very publicly that it didn't, that was why they were against it. The proponents were aware of the complaint, did not deny it, and nevertheless voted for it. And won.

You keep acting like "subject to any foreign power" is in the text of the amendment. It isn't, they could have used the text your wish they had, but instead they changed it. Any amendment supersedes any prior legislation.

[M L]

See above regarding your other quotes.

It's true that the words "and not subject to any foreign power" are not in the text of the amendment.

But it's also true that all of the drafters of the amendment, and all those who adopted it in Congress, even including all those on both sides of the debates that occurred, thought that the words "and subject to the jurisdiction thereof" necessarily excluded those subject to any foreign power. Where does that leave us, in your view?

Similarly, the text of the amendment also did not include the words "excluding Indians not taxed" because a majority (though not all) in Congress thought that such Indians were subject to a (quasi) foreign power and therefore not "subject to jurisdiction."

[ducksalad]

Your big problem here - well, one of your problems - is that you are confusing "subject to any foreign power" with how a person got into the US. Whether or not someone is a citizen of Venezuela has nothing to do with whether they have a visa to enter the US, or the length of the visa, or whether it's a J or F or H visa. Whether they are subject to Venezuelan or US law has nothing to do with whether they have a visa to enter the US, or the length of the visa, or whether it's a J or F or H visa.

Much less their children....

My position is the obvious one: anyone who is required to obey our laws, and can be arrested hauled into our courts if they don't, is "subject to the jurisdiction".

The "best" anti-birthright proposal I've seen is the one to give children of illegal aliens diplomatic immunity. I actually think that technically might do the job. But the problem of course is that if the President could do that, he could also "grant" diplomatic immunity to native born twelfth-generation white people who happened to disagree with him. This is a loophole that needs to be closed.

[ducksalad]

[JDMD]

God I love it when JB posts something. Not because it makes sense or is well written...it doesn't and isn't...but because the comments are pure gold. Thanks to everyone who contributes.

[cannpro]

My hypothesis that JB has a humiliation fetish remains undefeated.

[Johnathan Galt]

Another leftist nobody opining on things they don't understand.

There has NEVER been Constitutional birthright citizenship. Never. That it has been ALLOWED graciously for many decades is irrelevant; Congress has the sole authority to determine immigration rules per the Constitution, and then never EVER voted for "birthright citizenship."

SCOTUS will do the right thing and end this abomination.