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 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.

[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.

[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.

[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.

[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.

[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.