I assume every district court will have a case brought before it. Whether they all agree one way or the other, appeals will bring this eventually to the supreme court? The ACLU website has topics they consider “the most pressing”. I’ve got to think every one of them will be fought in courts.
18 states and the ACLU are suing to block the order.
Godspeed to them. I hope they succeed.
and more now-
This thread has devolved into “Trump can do anything and SCOTUS will let him do it.” It no longer bears any rational relationship to reality. You might as well ask whether he’s going to execute Joe Biden tomorrow. Yes, it’s theoretically possible that the courts will fail to block his unlawful actions, but it’s not plausible.
If nothing else, they were citizens under Federal law at the time of their birth. Congress would have to change the law and take away birthright citizenship of children of illegal residents AND current case law says the government cannot strip anyone of their citizenship except (I believe) if there was fraud in your naturalization application.
Not really. I think it is more of a case of not agreeing that there isn’t much to worry about because the SCOTUS will automatically do the right thing.
Anyone who actually observed the court will be aware that it is not (yet) a rubber stamp. Roberts bucked Trump quite a few times and his own picks are not that reliable. He does better with Alito and Thomas than with his own appointees.
And there is just enough leeway to scare a lot of folks.
That’s because they weren’t his picks. They were picked by Mitch and the Federalist Society.
Well, yes, but so were all the other Republican appointees.
Could Trump’s lawyers conceivably argue that babies, having no awareness or agency, are not fully subject to the jurisdiction of the United States? If the court ruled in favor of that argument, it would mean that children born to undocumented immigrants aren’t covered by the Fourteenth Amendment, but it wouldn’t jeopardize the citizenship of children born to U.S. citizens or legal residents.
To me this idea sounds surreal, but it occurred to me earlier as I was reading the news.
Really, none of the people involved are going to care about the law. They hate brown people, they are going to go after brown people, and the Republican-packed courts will just nod along.
Obviously, this is going to the Supreme Court. What is not obvious is how they will decide. It should be 9-0 to strike down the order, but then again it should have been 9-0 to strike down the insane immunity claim. I think the odds of Alito and Thomas voting to strike down the EO are 0% and Kavanaugh 5%. It comes down to Gorsuch and Roberts. I doubt Barret will join in the madness nor will the three sane justices. This court has shown no respect for precedent nor the stomach for standing up to DJT in recent years. I’m afraid it will go 6-3 or more likely 5-4 to uphold the EO. Nuts, but this is where we’re at.
At the very least in the process of going up the courts, the Administration is going to have to present from who/where they sourced the legal basis for that declaration in the EO about an exception to “subject to the jurisdiction”, which is written as if it “just is so”. How that ëxplanation/justification in turn meshes with the Constitution is what the magistrates are going to have to work with/around.
My expectation? They find a way for just enough of it to “narrowly” stand that he can go tell supporters “yes, I did this”. Of course if before then the majority in Congress is able to actually write the exception into the law, then it becomes a challenge to that law and who knows if that version is identical or not to the EO version.
And let’s be clear about this: short-term it’s not about the children it’s about the parents – to make those who are not “obviously from here” have to prove their status or else “out” themselves, and to eliminate any “anchor baby” issue (if the kid is not a citizen, then of course no question the whole family’s deported and there’s no claim on the child’s behalf). In the immediate term it is yet another push to rope people and organizations that should not have to do with it (state civil registrars, the SSA) into becoming enforcers of identifying People Who Don’t Belong Here.
Long term you then begin having some of the problems some people upthread have mentioned, if the responsible parties don’t properly legislate a process to deal with it.
I’m a little more sanguine about Kavanaugh, and less about Gorsuch, than you are. I think the EO will end up overturned, because I don’t think Kavanaugh and Roberts want to deal with the flood of litigation that would ensue if the order is upheld, most of which would split in the circuit courts and end up with the Supremes, which would interfere with their principal project of shredding the administrative state and deregulating from the bench. I really don’t think it’s something they want to waste time with.
IMHO (very important dontchaknow) the Supremes will kick it back to lower courts for delays, delays, and more delays. Finally, when pinned into a corner; there’s always the emergency catchall exit strategy, “NO STANDING” to thwart any actual resolution in our lifetimes. The jackbooting will continue apace.
Even if the various cities and states bringing suit are determined to have no standing, it won’t take long for an individual with standing—even as an infant—to appear.
My worry is that SCOTUS will either (a) uphold the order in its entirety or (b) only overturn portions of it at a time, such as by ruling that it is in fact unconstitutional with respect to the children of temporary visitors legally present in the US, but declining to decide whether it might be constitutional with respect to the children of undocumented immigrants. Because if it does come down to needing an individual with standing to sue, the child of someone who is in the US temporarily but legally will be in the most secure position (the parents won’t be risking arrest and deportation to come forward and file suit on behalf of their child).
Although that now makes me wonder: under the EO, what would be the status of a child born to, say, two H-1B visa-holders who are in the US temporarily, but potentially for *years? Kids can’t inherit H-1B status. Shouldn’t that make the child undocumented, and thus subject to removal/deportation, unless and until the parents apply for and receive a derivative visa (which could take years)?
*ETA: Under current processing timelines, it only takes “months”, not years, to obtain an H-4 visa (which is the proper visa for the unmarried child of an H-1B visa-holder to have permission to accompany the, in the US). Still…
Is SCOTUS limited to just re-interpreting the 14rh amendment? The 13th bans slavery (and that was not well received) yet allows chain gangs for the incarcerated. Okay, so that one is safe. The 15th is about the right to vote (one man one vote, which Jefferson may have thought ridiculous - and women will need their own amendment). And LBJ had to re-affirm a nearly 100 year old amendment.
I am happy that states have swiftly taken this on pro-actively and not just leaving it to the ACLU to take it from district up to the Supremes. I hope somehow the fallout of this is putting solid limits on Presidents writing laws.
(ETA: didn’t mean that specifically as a reply to smthsb)
Here’s the justification as provided by Eric Schmitt, currently the senior Senator from the state of Missouri and former state Attorney General.