The Birthright Citizenship Decision Isn't as Bad as You Think...It's Worse

The Upside Down Reality of the Roberts Court

“It is emphatically the duty of the Judicial Department to say what the law is.”

“It is a general and indisputable rule that where there is a legal right, there is also a legal remedy [...] whenever that right is invaded.”

“The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion.”

“It cannot be presumed that any clause in the Constitution is intended to be without effect.”

Chief Justice John Marshall, Marbury v. Madison

You’d think that the Chief Justice of our Supreme Court would understand those solemn words and take them to heart. They are the words of our most important early Chief Justice, John Marshall; and they come from the single most important case in American Jurisprudence, Marbury v. Madison. The case laid the foundation of Judicial Review, for the first time called a law unconstitutional, and empowered the Third Branch into a co-equal branch of government. ALL of the Article III Judiciary’s power, comes from that decision. The words above outline some of the reasons the duties of the Courts are so important.

The Roberts Court betrayed those words this morning.

Whenever I hear about a Supreme Court decision, I seldom just take the reporting at face value. Reporters and news media take sides on the issue and report accordingly. It’s easier to draw attention and describe events when it’s boiled down to team 1 v. team 2 kind of story. More often than not, the cases actually hinge on a point of arcane or nuanced jurisprudence that when you understand the law you get one way or another. That’s why MOST decisions at the highest Court are solidly one way or the other and not on partisan lines. The most divisive cases DO tend to be determined on partisan lines, however, and the differences tend to be determined by who ends up in the majority.

When it comes to the Roberts Court, this era is going to be defined by one thing; punting. Seldom do they actually analyze the substantive portions of a matter. More often then not, they decide issues on the narrowest of possible grounds, usually procedural, and usually minor, then punt on all the other possible questions. You’d be forgiven if you thought the Roberts Court this morning (in Amy Coney Barrett’s decision) O.K.ed it for the President to ignore the Birthright Citizenship clause of the Constitution, as that’s largely how it’s being reported as. In fact, what they did was decide an issue of “equitable remedy” answering the question of whether lower courts have the ability to issue nationwide injunctions. The injunction in this case just happened to relate to three separate cases’ questioning about Trump Executive Orders that, well, I’ll let Coney Barrett’s decision describe them:

So basically, these are executive orders intentionally negating citizenship for what are derisively termed as “anchor babies.”

Section 1 of 14th Amendment to the Constitution is unequivocal:

To put it bluntly, if you are born in the United States, you are a citizen of the United States. Period.

The one thing that makes many of you citizens is the fact you were born here. If you take that away, redefine it, add exceptions and qualifiers to it, what is to keep any administration now and in the future from deporting you or your progeny, or taking away your rights as a citizen altogether?

Trump’s Executive Orders explicitly and blatantly stand in conflict with the 14th Amendment. It doesn’t take a law degree to understand that the President’s executive action here is unconstitutional on it’s face. When it was offered, it immediately triggered litigation to stop enforcement through an injunction that was granted. In fact, the injunction was granted nationally, because it’s so obviously breaking the law we all live by. The Appeals Courts hearing the appeals by the Trump Administration kept in place the injunctions. Everything makes complete sense to this point.

So it gets to the Supreme Court and what does the Roberts Court do?

1. They narrow the scope of the issue from one regarding obvious conflict to the 14th Amendment, to whether a lower court can issue national injunctive relief. They decide 6-3 that they can’t. Apparently, they don’t think judges can read the Constitution and ascertain what it explicitly says.

2. They claim that Congress has given the Courts no such power for equitable relief and thus the Administration is likely to succeed on the merits (huh?). Wow, where to begin on this one. The courts have ALWAYS been a place for equitable relief. Coney Barrett’s opinion in fact argues the opposite, going through much arcane, outdated and indeed NON JURSIDICTIONAL SINCE IT DATES BACK TO ENGLISH COMMON LAW, garbage to make the case that there simply is no relief that the Court can offer here. The whole argument is one steaming pile of bullshit.

3. And then they punt the cases back down to the lower courts, which will only have the impact within their own jurisdictions. Think about that. Ninety-four different district courts, 13 different appellate courts EACH HAVING DIFFERENT INTERPRETATIONS OF THE 14th AMENDMENT—NO UNIFYING CONSISTENCY BETWEEN THEM UNTIL THE SUPREME COURT WEIGHS IN. Worse yet, someone will have to BRING THE CASE IN ALL OF THOSE JURISDICTIONS JUST TO GET A LOCAL INJUNCTION PASSED. Until then, Trump is free to do as he pleases.

4. They also completetly punt on the main issue, which is that Trump’s Executive Order directly contradicts the plain language text of the 14th Amendment. Wow, strict constructionists and originalists should be steaming MAD about that and….oh wait, what’s that? Thomas and Alito concurred in this ridiculous abomination of a decision? You mean to tell me all this grand hoo-ha about judicial principles and being a “strict constructionist” is a bunch of hypocritical nonsense? Who woulda thunk it?

5. I want you to take a really close look at what happened here today. The Judicial Branch took something that was completely in their purview and burned it down. At the same time they empowered the Executive Branch considerably, who now has authority to do pretty much anything without fear of injunctions being applied against him consistently. And the manner in which this decision layed out it’s arguments, he is no longer bound by the Constitution at all. He can make laws with utter disregard to the Constitution, and not fear any kind of authority to stop him except at the local levels and over time as the cases work their way through a (now much more) beleaguered judicial system. Add this to the case last term in which the Supreme Court eliminated Chevron Deference, and the Judicial System is too small, too weak, and too slow to pretty much enforce anything now.

Speaking from the bench in delivering the opinion today, Coney Barrett said they wholly expect to be deciding the substantive issue in this case on the merits next term as those cases weave their way through the system. They could have saved a whole lot of time and looked better doing it by just stating what is obvious to everyone— these Executive Orders are unconstitutional.

Justice Roberts and the Roberts Court betrayed the words of Justice Marshall today, and our republic will suffer because of it.

PurpleAmerica’s Final Word on the Subject

Roberts Court Era decisions vastly expanding the scope of Executive Branch authority will go down as some of the worst decisions in the Court’s history someday. Count on it.

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