There have been more Executive Orders signed by President Trump which have diverted some of the attention away from the Executive Order entitled Protecting the Meaning and Value of American Citizenship (i.e., the EO which ends birthright citizenship for certain categories of persons.
You will recall that the EO stated there would be no birthright citizenship for a child born to a mother who is “unlawfully present” or “lawfully present but temporary”, and whose father is not a US citizen or lawful permanent resident. Two weeks ago, a judge in Washington (a Ronald Reagan appointee) called it “blatantly unconstitutional”, issued a nationwide Temporary Restraining Order (“TRO”) against implementation, and scheduled the case for hearing on whether to extend the TRO into a Preliminary Injunction (which would typically stay in effect through final trial or until an appellate court ordered otherwise).
That Preliminary Injunction hearing occurred today, and in less than 20 minutes the court granted a nationwide Preliminary Injunction against implementation of the EO.
As a preliminary matter we should understand the legal grounds on which a trial court can grant a Preliminary Injunction. The basic requirements for a Movant to get a Preliminary Injunction include establishing that:
(1) the Movant is likely to succeed on the merits at final trial;
(2) irreparable harm is likely to occur unless the preliminary injunction is granted;
(3) the balance of equities tips in favor of the movants; and
(4) the preliminary injunction is in the public interest.
Here, the trial court completely rejected the Government’s tortuous arguments that the “subject to the jurisdiction” clause in the 14th Amendment somehow means something other than what its plainly states:
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.
The Government’s argument goes something like this: A person here illegally is not subject to the jurisdiction of the United States because her permanent domicile is not here (after all, she is subject to deportation), and her allegiance is to another country (because she is a citizen of another country).
Respectfully, this is much less than good faith legal reasoning. “Jurisdiction” is a legal term and concept that goes way back to when we turned Boston Harbor into a lightly caffeinated body of water. As has been a truism in the law since before our country was founded, a government has “jurisdiction” over all the land and persons within its geographic borders except persons with diplomatic immunity. The last time I checked, undocumented migrants are certainly subject to our laws, can be arrested, hauled into our courts, prosecuted, fined, imprisoned, deported, etc.
The Government makes additional arguments in favor of what it wants “jurisdiction” to mean, including that a person must be permanently domiciled in the United States for her child to enjoy citizenship at birth and not owe allegiance to any other country. However, no variation of the word “domicile” or “allegiance” is anywhere in the 14th Amendment.
Some of the court’s most clearly stated reasoning to reject grafting new words, meanings, and requirements onto what is a simple sentence which uses simple words that conveyed (and still convey) a simple meaning when they were written, is the following:
In interpreting the text of the Constitution, courts are “guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’
In other words, you shouldn’t have to be a creative lawyer to understand the Constitution. This principle of Constitutional interpretation was stated as recently as by the “conservative” Supreme Court in 2008, and back to another Supreme Court decision in 1931.
The trial court also notes that the Government’s interpretation of the Citizenship Clause contravenes long-standing Supreme Court precedent going back to 1898.
The full analysis by the trial judge is deeper than my brief summary, but it is still a quick and easy read (the entire Order is only 13 pages) and can be accessed here:
I have no doubt that this decision will be appealed to the 9th Circuit Court of Appeals, and then to the United States Supreme Court (along with other cases on this issue, including one in Massachusetts which also granted an injunction against the EO).
While many of my friends, acquaintances, and colleagues disagree with me on this (those on the “right” and on the “left”), I predict that the United States Supreme Court will strike this EO down in a 9-0 or 8-1 decision. This is just too easy of a call for it to not go at least 8-1. (If I’m wrong, feel free to heckle me).
Now, my more “unvarnished” opinions:
We have an immigration and border crisis. We may disagree about the extent, cause, proper solutions, who is at fault, etc., but I think virtually everyone in the country agrees we have a real problem.
A real problem deserves a real solution, not a “head fake” to cause cheers, jeers, or panic. This EO is just that and has as much chance of “fixing” (all or part) of the immigration / border problems as I have in qualifying for the Olympics in speed skating. Why? Because it will be struck down as unconstitutional by the Supreme Court. And anything proposed as a solution which has no chance of being implemented because of its unconstitutionality is a waste of time, paper, ink, hope, effort, and political capital.
Even worse, this EO has caused absolute panic in some of our most vulnerable communities among our most vulnerable neighbors. Perhaps one is not bothered by that because “those” people “shouldn’t be here anyway and it serves them right”. . . .. (which I’ve heard more than once).
But does it really “serve them right”?
If I am correct and this EO is never going to be implemented because of its unconstitutionality, why try (and succeed) to cause abject terror to people who went through abject hell to get here for a better life?
Should “they” be deported? Should there be exceptions? Should there be a path to citizenship? Should there be ____? Those are questions that need to be debated, and whatever the result, so be it, as long as it is a legal and constitutional result.
But as a country how should we feel about ourselves if the “real purpose” is just to cause the highest levels of worry, stress, anxiety, and fear to people? That, from the most powerful and wealthiest country in the world, I believe is immoral.
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