Jack Goldsmith: "The Solicitor General Embraces Judicial Supremacy"

You're reading Jack Goldsmith, right?

I've said before that Jack Goldsmith's Substack is "essential reading" on the legal issues raised by Trump 2.0.  That continues.  I was particularly interested in his latest post, on yesterday's oral argument: The Solicitor General Embraces Judicial Supremacy.

Here's the introduction:

Many people have worried that the Trump administration might refuse to respect a Supreme Court decision. In yesterday's oral argument in the birthright citizenship emergency order case, Solicitor General John Sauer said several times that the Trump administration views itself to be bound not just by a Supreme Court judgment, but, much more broadly, by the precedent those judgments create. This is a major concession to judicial supremacy, and a major stand-down on departmentalism, by the Trump administration.

What I did not fully understand until yesterday's oral argument is why this concession is needed to make the government's argument against universal injunctions work. It is, as I explain below, the price the Trump administration must pay to get relief from universal injunctions.

Whether the Trump administration can be trusted to deliver on Sauer's concession is a very fair and open question, as I discuss at the end of this essay. But in the main thrust of the essay I will explain the logic and potential significance of the concession. I think the Court in its opinion will latch on to the concession, in a fashion reminiscent of Marbury, to give the government some degree of relief from universal injunctions even as the Court asserts the government-acknowledged supremacy of its precedents vis-á-vis the executive branch.

Comments

[John F. Carr]

From the full post: "If universal injunctions are disallowed, many thousands of persons born in the United States and warranting birthright citizenship would be denied such citizenship because they cannot afford or find a lawyer."

Don't they have a lifetime to get their status adjudicated? In the other direction, I recall a recent case about a man who was well into adulthood when the government decided he was not a natural born citizen due to his parents' diplomatic status.

[Roger S]

That's right. Citizenship does not matter too much to a baby. The baby would not need a lawyer. At worst, the baby would suffer a delay.

[ah....Clem]

Don't they have a lifetime to get their status adjudicated?

You mean while they go through childhood, adolescence, young adulthood, and possibly middle age without having citizen status and the benefits that ensue from that?

And you're ok with that? Because only those who can afford an attorney are entitled to their rights under the constitution?

Just trying to understand the full implications of the argument...

[David Nieporent]

Don't they have a lifetime to get their status adjudicated

No. They are subject to deportation at any time if they're not citizens, and further lose out on benefits of citizenship immediately.

[not guilty]

How long will it be before Professor Blackman throws a hissy fit about Sauer's concession?

[RadLegalTakes]

“Solicitor General John Sauer said several times that the Trump administration views itself to be bound not just by a Supreme Court judgment, but, much more broadly, by the precedent those judgments create.”

I call bullshit. If this were even remotely true, then there would be no Trump birthright citizenship EO that stands in direct opposition to a line of SCOTUS decisions stretching back more than a century, which is the whole fucking reason this case is before the Court in the first place.

[Social Justice is neither]

Thanks for the inclusion of that exhaustive list of citations.

[RadLegalTakes]

Eat a dick—I don’t work for you, bitch. My comment was to professor Kerr, not you. You’re some internet rando I’ve never before engaged with, not someone in the legal community I respect and admire.

[Orin S. Kerr]

"Eat a dick—I don’t work for you, bitch. My comment was to professor Kerr."

A lovely invitation to dialogue.

[RadLegalTakes]

If he wants to argue law with me and reasonably expect citations, then he can do so on any one of the many social media platforms where I can be found, and which are—unlike this comment section—-conducive to a robust public exchange of information and ideas.

So, yes: Anyone expecting me to cite cases in a comment section of a website, especially where the law on birthright citizenship is so clearly established as to be common knowledge in the legal community, can eat a dick. I’m not going to engage substantively with idiots or bad faith actors, especially here.

[Orin S. Kerr]

I have no idea who you are, and I haven't tried to discern if you have a substantive point to make because whatever you're saying is buried in curses and personal swipes. But maybe you shouldn't comment here?

[JoeFromtheBronx]

"I call bullshit. If this were even remotely true, then there would be no Trump birthright citizenship EO that stands in direct opposition to a line of SCOTUS decisions stretching back more than a century, which is the whole fucking reason this case is before the Court in the first place.

I understand if you find his reply to a person multiple people block as crude. But the point HERE is not quite "buried." If you want to not respond to people who curse and/or personally attack people, that's your call.

[ah....Clem]

Kavanaugh, for one, is still assuming that the administration is acting in good faith. We'll see how long that delusion lasts.

Trump's diatribe attacking the Court for its most recent decision may speed the process along...

[Roger S]

I assume that Kerr is being sarcastic by saying that Goldsmith is essential reading.

[Orin S. Kerr]

I know you're being sarcastic about me being sarcastic, so there is that, I suppose.

[ah....Clem]

Thanks for the pointer. I've added the substack to my regular reading.

[not guilty]

Hack Goldsmith it among that rarest of creatures -- and intellectually honest Republican. https://executivefunctions.substack.com/p/the-birthright-citizenship-argument

I suspect that is was no accident that SCOTUS selected a case as to which the merits are so clear to consider whether a universal preliminary injunction is or is not appropriate. "The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). The relative positions of the parties, prior to issuance of the instant Execrable Order, was that the Fourteenth Amendment, § 1 guaranteed birthright citizenship to infants born in the United States.

None of the three consolidated cases before SCOTUS presents a novel question of law. The Execrable Order is nationwide in its purported scope. If ever a universal injunction is appropriate, it is here.

[not guilty]

Excuse me. I meant Jack Goldsmith. Mea maxima culpa for the typo.

[NvEric]

The clarity and context of the 14th is not to grant birthright citizenship for newborns of those not legally in the US for one, and two, not to those whom intent to become citizens has not been established. Simply being within the bounds of the US was never an intention of the 14th for birthright citizenship as it's not explicitly stated nor inferred in any way.

To further colonialism of these lands, then by all means allow everyone in. Native Americans do not buy into the birthright mantra.

[NvEric]

Going to court so much highlights an endemic illness of opposition to matters better addressed in Congress or to a greater fault in our system itself. Courts are not the place to make law or determine what the law actually means. Poorly written law can not be made right in any court. Appealing to courts in over 200 lawsuits in 3 months demonstrates an erosion of intellect in those lawsuits and a danger to what system there is.

Entrenchment of dogmatic faction coupled with poor reasoning beyond one's factional existence bodes ill to a future well being.

The People can not afford any of these "legal" events to continue, because they are not right, for they are reactionary burps of sour grapes.