‘Puter attends his college reunion and tells his classmates his opinions on the issues of the day. The reaction is predictable. At least the resultant carnage was pretty, like one of them there color runs where hippies run a race and people throw colored chalk all over their lean, taut, sweaty bodies … Um, ‘Puter will be right back.
‘Puter posted the following on Facebook this morning. ‘Puter fully expects his extremely liberal college friends’ heads to explode. ‘Puter is honestly surprised his friends haven’t disenfriendchised* him yet. Oh, well. ‘Puter hasn’t seen or spoken with most of these folks in years, so the only loss would be one of nostalgia.
Thus spake ‘Puter:
Since no one asked, I thought I’d share my thoughts on the birthright citizenship issue. As you may have heard if you were awake at all yesterday, President Trump said he has authority to remove birthright citizenship from children of illegal aliens (it’s the actual legal term for their status, hold your fire) and so-called “birth tourists.”
If such an order is issues, which assumes this is not a “gin up the base” election week stunt, here is what I believe most likely happens:
A liberal/pro-immigrant group sues to stop enforcement of the executive order in a federal district court in the 9th Circuit because the 9th Circuit is notoriously pro-liberal (and is also by far the most frequently overturned by the Supreme Court). The district court immediately issues a nationwide injunction barring the administration from enforcing its policy. The district court eventually decides against Trump, vacating the executive order and holding that children of illegal aliens are covered by the birthright citizenship conferred by the 14th Amendment.
The Department of Justice appeals both the injunction and the decision. The 9th Circuit affirms the district court on both the injunction and the decision. The Dept. of Justice appeals the 9th Circuit’s decision to the Supreme Court, which agrees to hear the appeal.
The Supreme Court’s decision does two following two things:
(1) It affirms the lower courts’ holdings, but only on separation of powers issues (i.e., Congress, not the executive, has to act on this matter). The Court DOES NOT rule on the underlying issue (i.e., whether the 14th Amendment *on its own* confers citizenship on children of *illegally present* persons or “birth tourists” since it’s a matter of first impression). I am unsure whether the Court leaves the matter open for Congress to act or not or whether it remands to the lower courts to make findings as to whether the 14th Amendment was intended to confer birthright citizenship on children of illegal aliens. The Court has never held it does, nor does the plain language or history of the amendment require it, despite years of assuming it does.; and
(2) It eliminates or severely limits the ability of federal district courts to issue nationwide injunctions. I think the Court does this because Thomas telegraphed his intent to do so in his concurrence in Trump v. Hawaii last term. Thomas wrote:
“I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.”
So, assuming Trump is serious and actually issues an executive order, the result after years of litigation is likely executive and judicial powers get limited and there is no immediate end to birthright citizenship.
To me, as a conservative, this is the correct result. Congress should act (or not). Then the courts should take up the issue. But the executive does not have the power to act alone (unless I’m missing an argument that Congress delegated *all* its power on immigration to the executive). And, best of all, nationwide injunctions end, reining in an out of control judiciary effectively legislating from the bench.
‘Puter will update you on the carnage as warranted.
* Yes, ‘Puter made up this word. It’s a perfectly cromulent word. If you don’t like it, go read someone else’s screeds for free. You’ll be back. You always come back. Hey! Where are you going? COME BACK HERE AND LOVE ME!!!