Some History in the Making Being Made Here . . .
I agree with Joyce Vance at Civil Discourse, this excursion into changing (which it is) the Constitution and eliminating birth rights for people born in the United States is dangerous for everyone and is an act of someone who is not quite all there. So a judge agreeing with the states appealing his demand as BS is not unusual. I can only imagine what the judge was thinking. If Trump was not being serious, the judge might have broken out in laughter. Not that you or I could or would do this, think about the stern lecture you may have received from a judge or maybe just plain laughter. History in the making with a rogue president (small p).
Go, Judge!
This morning, John Coughenour, a federal judge in Seattle, put an end to Donald Trump’s pretense that he could undo the constitutional right to birthright citizenship. The Judge entered a nationwide injunction, temporarily prohibiting Trump from interfering with citizenship for people born in the United States, regardless of their parents’ citizenship status.
It’s Trump’s first loss in court, only four days into his new administration, and it’s an important one. The issue, also being litigated in other courts, is headed to the Supreme Court. I don’t expect a different result there. That will surprise some of you given how willing this Court has been to put its thumb on the scale of justice in Trump’s favor.
But my assessment that Trump will lose isn’t based on a belief that anything has changed at the Court. Rather, it’s based on an understanding of how foundationally anchored birthright citizenship is in the Constitution and the 14th Amendment, particularly given the opinion authored by Justice Scalia that we discussed last night. In other words, it won’t be a sign that our confidence in the Court should be restored when they rule against Trump. The issue is so clear that it will simply be a reflection that there are some bars SCOTUS can’t fall below.
The meaning of the language in the 14th Amendment is plain. It says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Trump’s DOJ argued that somehow, the children it wants to strip of citizenship aren’t “subject to the jurisdiction” of the United States. The Judge asked DOJ’s lawyer whether those kids would be subject to the jurisdiction of the United States if they committed a crime. He responded that they were subject to the laws of this country, but not subject to the jurisdiction under the 14th Amendment.
That argument didn’t fly with the Judge, who interrupted to say, “Frankly I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It just boggles my mind. Go ahead.” By the end of the hearing, there was little doubt about where the proceedings were headed. “I’d like to go back to your opinion about the constitutionality of this order,” Judge Coughenour said. “I’ve been on the bench for over four decades. I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.”
The Judge entered a nationwide temporary injunction that will preserve the status quo and prevent the Trump administration from preparing to deprive people of citizenship, which has thrown systems nationwide into disarray (Trump’s executive order goes into effect on February 19), while the litigation proceeds. Injunctions are used to freeze the status quo in place when the party complaining about a new law can show a substantial chance of success on the merits, and that the harms done if the law is permitted to go into effect will be irreparable. The lawyer for the state attorneys general argued that state residents cross state borders routinely and that an order that only applied to the four states that brought this case wouldn’t fully protect its residents. The lawyer argued that “citizenship does not and cannot turn on state borders.”
The Judge ruled quickly. That’s how clearly wrong the Trump administration is on this issue.
I understand that as court adjourned, a woman in the back of the room yelled, “Go Judge.” She was speaking for all of us.
We’re in this together,
LOL! Scalia certainly had a breathtaking versatility of conviction. On the one hand, states have the freedom to decide whether or not to do background checks. On the other hand, states don’t have the freedom to regulate firearm ownership because every person is a militia and thus can “bear arms.”
While I expect you’re right that a majority of the Roberts court will uphold the black letter reading of the 14th Amendment, I’ll bet that Scalia’s mini-mes–Thomas and Alito–will dissent.
I sincerely doubt as stupid as many think Trump is, he believes he can repeal a constitutional amendment with the stroke of a pen. I do believe however he intends to bring this issue to the forefront for debate and what better way to do it? First, as in all debates regarding a constitutional amendment we start with the text and then what was the intent and purpose behind the text at the time of its drafting? (if you’re an originalist anyway) Have what ever opinions you like but there is good reason to debate this issue. Was the amendment drafted with the idea in mind to assist citizens of other countries to give birth on American soil in order to automatically make their child a U.S. citizen, or was the amendment originally drafted for another purpose? The answer is an easy one which gives good reason for debate. Either way, if 2/3s of both houses of Congress and 3/4 of the states agree to change the amendment so be it. If they don’t, we move on. But the E/O is the first step. Personally, the idea a foreign national can simply step foot on American soil, hours later give birth and the child is automatically a U.S. citizen is a little preposterous and at the very least deserves debate.
https://www.senate.gov/about/origins-foundations/senate-and-constitution/14th-amendment.htm
Landmark Legislation: The Fourteenth Amendment
Image: page one of the Fourteenth Amendment
Passed by the Senate on June 8, 1866, and ratified two years later, on July 9, 1868, the Fourteenth Amendment granted citizenship to all persons “born or naturalized in the United States,” including formerly enslaved people, and provided all citizens with “equal protection under the laws,” extending the provisions of the Bill of Rights to the states. The amendment authorized the government to punish states that abridged citizens’ right to vote by proportionally reducing their representation in Congress. It banned those who “engaged in insurrection” against the United States from holding any civil, military, or elected office without the approval of two-thirds of the House and Senate. The amendment prohibited former Confederate states from repaying war debts and compensating former slave owners for the emancipation of their enslaved people. Finally, it granted Congress the power to enforce this amendment, a provision that led to the passage of other landmark legislation in the 20th century, including the Civil Rights Act of 1964, and the Voting Rights Act of 1965. Congress required former Confederate states to ratify the Fourteenth Amendment as a condition of regaining federal representation.
@Matt,
The Republican Party gave US the 14th amendment to unwind slavery and the Civil War, but later the Democratic Party embraced the 14th amendment for a different purpose. During Reconstruction the Democratic Party was effectively defunct, but after Reconstruction the Democratic Party was reborn in the Old South as the party of Jim Crow Dixiecrats. The expansion of northern ethos into the new never slave states still retarded the Democratic Party from acquiring any influence over Federal government. The Democratic Party in these never slave nether regions had to pander to unions and immigrants for votes; i.e., political duality in the extreme between Old South and other states. In any case, the Democratic Party was not much of a player in the US political system after Lincoln until FDR’s New Deal took ownership of the progressive movement which the Republican Party abandoned after Teddy’s Bullmoose run gave US Woodrow Wilson, the only Democrat other than Grover Cleveland to be POTUS between Lincoln and FDR. Since FDR the Democratic Party has been cleaning the progressive stench off its shorts by abandoning the blue collar working class and labor unions and kissing up to financialization. Pandering to the vulnerable provides cheap votes quite similar to the other side pandering to reactionary bigots. Politics is about getting votes with promises that do not offend campaign finance donor class.