But is the Supreme Court legally obligated to take such a case?
It’ll go to a lower court first, where it will be blocked. Just like the travel ban. If the SCOTUS doesn’t take the case, the ruling of the lower court stands.
The lower courts are, and they could throw out Trump’s EO (if it ever materializes, which I sort of doubt). It doesn’t have to go to the Supreme Court to be resolved.
Thank you, John Mace and Ravenman. So as long as a lower court blocks it, we’re fine.
All they would need is a case, and it’s pretty much a sure thing that one will arise. This is exactly what the USSC is for after all, and this would be an attempt to directly reinterpret an Amendment (not quite as bad as trying to reinterpret one to say exactly the opposite of what it says, but still bad enough).
This will be a very interesting event if Trump follows through with his plans. It will be interesting to see if people who oppose reinterpretation of, oh, say the 2nd will be for this because Trump is proposing it, as well as interesting to see how some people who are good with reinterpreting the 2nd because of expediency and perceived threat are against doing so in this case. The two things aren’t really analogous, but it’s close enough to see where people actually stand on the broader issue. Do we use the mechanisms in our system to change things by our system, or do we use expediency to change things we think should be changed quickly and not bother with all those stuffy rules? I’ll be interested to see where a lot of conservatives come down on this one…and where liberals do as well.
I wonder if Trump has any idea of the layers he’s opened up in this can of worms…and if others realize it either. I seriously doubt most are seeing the bigger picture in all of this, and how if Trump gets his way it will set a precedence that will seriously alter the fundamentals of our system. This is the same thing I’ve worried about wrt folks advocating the various logical gymnastics to get around the 2nd without using the system to change it or get rid of it formally.
Which is almost certainly what will happen. Think about what happened when the President tried his ‘Muslim ban’ at the start of his rein of terror…er, I mean his presidency.
I had to ask, because the last two years has been nothing but “Don’t worry-They won’t let him do that”, followed soon after by “Shit!”.
I think this is a bit more serious as it is the president basically attempting to either circumvent or reinterpret the Constitution itself by Executive Order. So, I don’t think this is going to simply fly by without resistance…in fact, I’m sure it won’t. You can count on, at a minimum, several ‘liberal’ lower courts at least to resist this, and I doubt they will be the only ones. I don’t see conservatives/Republicans being in lock step on this one either. Ryan is out, pretty much, but he can’t be the only one saying this isn’t going to fly.
They can all say “This isn’t going to fly”, but even if they all gather together at Carnegie Hall to sing those words while accompanied by the Los Angeles Philharmonic Orchestra on Independence Day it doesn’t mean jack legally. I’ve seen Republicans publicly feel bad about all sorts of things Trump has done in the past, but usually that is as far as it goes.
Do you feel the Republicans have the votes to get a new Amendment passed? Because unless you do, I don’t see them being able to do much about this. Unless you feel that Trump will be able to get everyone to just go along with his EO circumvention of the Constitution, including every lower court and a majority of the USSC if it goes that high. You might believe that’s all possible, but I don’t. If it IS, then you are in luck if you are one of the posters who thinks the court should be able to change the 2nd by reinterpretation, since it opens the doors to all sorts of things the next president, or the one after that, or the one after that will be able to do. Don’t like having to list porn as free speech? Well, an EO is what you need! Don’t think those Muslims should be protected? EO. Assembly got you down? EO. Think the 2nd shouldn’t protect the individual rights to keep and bear arms? EO. And on and on. This cuts to the very heart of our system, and if folks just shrug and let Trump do whatever he wants then we will get what we deserve. I don’t happen to think that’s what will be how it plays out though. YMMV.
XT, would this action cause you to change your vote? And do you think it would convince the average republican to do so?
Nope, not at all…if anything, it will cause me to vote pretty much blue across the board (which I already have done, so I couldn’t change even if I wanted too). Not only vote for all blue state representatives but local and judges too. Of course, I came to that conclusion a while ago. WRT the next presidential election, I would literally vote for ANY Democrat that is nominated (I can’t vote in the primaries as I’m an independent). Hell, put Sanders up there and I’ll vote for him. Warren? No problem. You guys could run Mickey Mouse and I’ll vote for the little rodent before I vote for Trump (which isn’t saying much, since I voted for Clinton).
Of course, as you’ve probably figured out, I’m not a Republican so I might be the wrong person to ask this. Do I think this would change the average Republicans mind? No, I don’t. I think that they will find ways to justify this and ignore the implications concerning our system, as I’ve noticed many liberals are able to justify their stance on the 2nd and what they would want to do if they could. I think that any Republican who actually understands the implications and isn’t so lost in the rhetoric and sees what this idiot is doing to their party is probably already planning to vote against the man. But on the broader political plane I don’t see them voting against Republicans, just as I don’t think liberals would vote against the party because of what their president was doing…or even perhaps what their party was doing. In the end, most people, IMHO, are tribal, and even if they think their party is wrong they will generally not vote against it because of myriad other vertical issues they see.
Now…I think what WILL happen is that many folks on the fence, independents and moderates are going to be coming over to the Dems side in this election and in the next presidential election. I hope that many of the blue collar workers wooed over to Trump in the last election will come back to the party as well. I think that a lot of Hispanics are going to be more fired up by this issue and vote against Republicans as well. Probably other immigrant minority groups as well, but Hispanics in particular.
No one is talking about passing a new amendment. There would be nothing unconstitutional about that (people suggest it all the time, for good and bad reasons, and has basically no chance of happening)
He is saying he is going to bypass all those pesky checks and balances, and declare by presidential fiat that the 14th amendment is no longer a thing.
For a president to even suggest that is as fundamental attack on the US constitution as its possible to get.
It is comparable. You’re taking about an executive order that overruled the Due Process Clause of the Constitution. How is that different than this?
By your cites then, would it be legal to take away birthright citizenship if “jurisdiction” were changed to exclude illegal immigrants (and their children birthed here)?
Then the question is can we change it in a way that illegal immigrants must still follow our laws but are under the “jurisdiction” of their home country?
That is a pretty reasonable interpretation of the text of the 5th amendment (it was certainly a national disgrace that the internment program wasn’t taken to be a violation of that). But the 5th amendment doesn’t specifically mention sending someone to an internment camp during wartime as example of depriving them of life or liberty (or selecting people based on their racial heritage as not being valid “due process of law”) The 14th amendment specifically spells out the fact that being born in the US makes you a citizen. So it is still not as blatant as this.
That seems tricky. Seems like it would be easier change the definition of “citizen” to only apply to heterosexual English-speaking white men of Northern European descent.
This thread has taken a weird turn, with some people looking at one of the greatest mistakes in American judicial history being turned into a justification for further policy.
What’s next, recalling that we once had a policy of genocide of Native Americans, therefore we’re on solid legal ground to murder refugees?
As I point out above Trump and his supports specifically cited that mistake as a shining example to follow during the election campaign. So none of this should be a surprise to anyone. Voting for Trump, and everything else that allowed him to win the election, was voting for (or being OK with) this specific thing happening.
Not using it to justify Trump’s policy. Just pointing out to the posters that claim that an EO can’t supercede the Constitution that it has in fact already happened (with SCOTUS approval) and so it could happen again - especially with this Court.