The Birthright citizenship case was a bust. Roberts and Barrett couldn’t find a reason to support Trump’s EO, and while I don’t choose to agree with them, I’ll admit there’s plenty of room for interpretation that allows for their opinions. Read both sides before you snap a gasket. There is as much gray space for this decision as there is for the other way. And it is not an insurmountable problem.
Trump can still deport parents who enter illegally and send their children with them. We have effectively closed the border, reinstituted vetting and screening processes, and the court has ruled that arriving at the border is not the same as being in the country. No entry, go home.
The US is under no obligation to let anyone in from anywhere, and criminal aliens will continue to be deported as long as Trump isn’t wrestling with a Democrat congress hellbent on undermining the progress so far.
It is worth noting that no one is burning anything down or showing up at the homes of Justices to kill them. If they did, we’d run them out of the party and do everything we could to ensure they had no safe center-right space to breed their vitriol. And besides, lefties are now forced to admit that it’s not Trump’s US Supreme Court (all the time for no good reason). Watching them squirm isn’t necessarily worth the price, but it’s something. And then there’s this from Justice Kavanaugh, who tried to offer a path forward for people who disagreed with the majority.
Again, I disagree with the opinion (I’m setting aside time to read the 91-page Thomas Dissent, destined to be a thing of beauty), but I’m not mad or losing sleep over it, and neither should you.
“Significant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868 and that the Framers of the Fourteenth Amendment could not have fully anticipated,” Justice Kavanaugh wrote. “And the Framers likely would not have anticipated (and presumably would not have intended) the odd result of granting a substantial birthright citizenship benefit to (i) those foreign citizens who violate U. S. immigration law and illegally enter or overstay and then have children in the United States over (ii) those foreign citizens who follow U. S. immigration law and have children in their home countries while seeking to lawfully immigrate to the United States. Nor presumably would they have wanted to grant constitutional birthright citizenship to children of foreign citizens unlawfully in the country while simultaneously denying constitutional birthright citizenship to children of tribal American Indians.” …
“Consistent with the Fourteenth Amendment, Congress could amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country,” he added. “But Congress has not yet done so.”
The majority opinion changed nothing, leaving things as they were, bad as they were, but not beyond hope.
The Constitution gives one particular branch of the Federal government the authority to define jurisdictional limits in nearly every situation. Guess which branch? Congress.
As a general constitutional matter, Congress holds the primary power to define the scope of U.S. jurisdiction in nearly every domain. Article I gives Congress power to “establish a uniform Rule of Naturalization”— the citizenship-adjacent power. Congress defines which courts have jurisdiction over what issues. Congress defines who is subject to the draft, who must file taxes, and who is subject to U.S. criminal law abroad.
The executive enforces jurisdiction; the judiciary interprets it; but Congress draws the lines.
Will Congress approach the subject seriously without a significant Republican majority in both chambers, without spine and ball implants? Maybe. If Americans don’t want Birthright citizenship, it just became a midterm election question that only Congress can answer.
This time, legislators can’t drag their feet claiming that Trump is asking them to do something unconstitutional, because Kavanaugh just green-lit it. They can’t complain it isn’t urgent, because Alito, Thomas, and Gorsuch called it critically important in their dissents. Half of the conservative justices would have supported Trump’s order, with one explaining how Congress can fix it.
The president can’t command it via executive order, and if it is a true legislative problem, did SCOTUS choose not to legislate from the bench, or did the cabal of noisy voices apply pressure in unseen ways to get the outcome they desired?
It could be both, but as noted above, neither is the end of the world. While sane Republicans control the White House, enforcing laws Congress has passed, Congress could address it, but that would probably land everyone back on the judicial freight train back to SCOTUS. No guarantee who will be there then and what might happen, but for the moment, the solution is to keep the border closed except for legitimate entry, which might be a problem for pregnant women in their third trimester hoping to vacation here.
We didn’t win this one, but we didn’t exactly lose. The ball is still at the same line of scrimmage and in our possession. This is still the best administration and best Supreme Court we could expect to have, and we need to ensure Republicans continue to control Congress so Trump can keep taking shots for his entire term. After all, he got a thumbs-up to fire just about anyone except for the FTC chick, and that was because of the special circumstances surrounding her legal situation.
Take the wins, learn from the losses, and adjust tactics. And for the love of God, don’t become the unhinged, angry, violent left, and do not tolerate that from anyone claiming to be on our side.
Besides, Republican Senator Bernie Moreno (OH) just reintroduced Democrat Harry Reid’s 1993 bill to outlaw birthright citizenship. A Democrat’s bill that the Dems will have to hate.
Oh, and there’s this. J
Popcorn.
