MAGA wants to decide who among us are “real” Americans
You who listened to Thursday’s oral arguments in the Supreme Court heard U.S. Solicitor General D. John Sauer argue the point I’ve made here for over a decade. To wit:
We’re dealing with people who would sell you the air you breathe if they could control how it gets to your nose. And if you cannot afford to buy their air, well, you should have worked harder, planned better, and saved more.
The colloquy before the nine justices wasn’t about access to air, but about access to the “for all” part of “justice for all.” The subtext was Trump’s January 20 executive order proposing to eliminate birthright citizenship granted by the 14th Amendment to “all persons born or naturalized in the United States.” The particular question at hand was whether federal judges have the power to enjoin the government, nationwide, from enforcing such an order, actions they deem clearly unconstitutional.
Sauer argued that federal judges can only grant relief to individual plaintiffs and not by nationwide injunction to anyone else whose constitutional rights the government hopes to infringe.
“Does every single person that is affected by this E.O. have to bring their own suit?” asked Justice Elena Kagan. That would require hundreds of thousands of lawsuits to stop Trump 2.0’s unconstitutional actions, in this case deportations of citizens declared noncitizens by executive fiat. Before SCOTUS on Thursday, the Trump administration argued that if you can’t personally afford to go to court to defend your constitutional rights, you’re SOL. You should have worked harder, planned better, and saved more.
The birthright citizenship question issue should be allowed to “percolate” for years through the courts, Sauer argued, until it reached SCOTUS for a definitive ruling. Kagan pointed out that that would allow the administration to game the system. Meaning, “there are going to be an untold number of people who, according to all the law this court has ever made, ought to be citizens who are not being treated as such.” Requiring individuals to bring their own cases would mean the administration could continue to violate people’s rights. It would never appeal the case to SCOTUS (via The New Republic):
“Why would you take the substantive question to us? You’re losing a bunch of cases,” Kagan said, referring to the government’s emergency application to proceed with its attempts to ban birthright citizenship. “Why would you ever take this case to us?”
“Well in this particular case we deliberately have not presented the merits to this particular court on the scope of remedies, because of course that makes it a clean vehicle where the court doesn’t have to look at—” started U.S. Solicitor General D. John Sauer.
“You are ignoring the import of my question,” Kagan interrupted. “I’m suggesting that, in a case in which the government is losing constantly, and nobody else is going to appeal, it’s up to you to decide whether to take this case to us. If I were in your shoes, there’s no way I’d approach the Supreme Court with this case.
“So you just keep on losing in the lower courts, and what’s supposed to happen to prevent that?” she continued.
“We have an adversarial system,” Sauer said, claiming that another circuit court could take the case.
But Kagan appeared offended by the idea, noting that nobody opposing the administration is going to lose this case—so long as they can afford to bring the case at all.
Justice Ketanji Brown Jackson set the government’s gamesmanship in sharp relief.
“Your argument turns our justice system into a catch-me-if-you-can kind of regime from the standpoint of the executive where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights,” she said.
No one mentioned out loud that by the time the issue ever arrived before the Supreme Court, Trump may have deported many of the plaintiff American citizens for detention in foreign lands. Except for pay in the case of El Salvador, this assumes the U.S. could get other countries to accept people he’s declared stateless.
Under the administration’s warped interpretation of the 14th Amendment, as Sauer put it, “Our primary contention is that the citizenship clause related to the children of former slaves, not to illegal aliens who weren’t even present as a discrete class at that time.”
The president himself argued on Truth Social that the amendment’s plain language
… had nothing to do with Illegal Immigration for people wanting to SCAM our Country, from all parts of the World, which they have done for many years. It had to do with Civil War results, and the babies of slaves who our politicians felt, correctly, needed protection. Please explain this to the Supreme Court of the United States. Again, remember, the Civil War ended in 1865, and the Bill goes to Congress in 1866 — We didn’t have people pouring into our Country from all over South America, and the rest of the World.
In fact, some of my never-slave relations had “poured” into this country from Ireland before and after the Civil War. Their American-born offspring were considered citizens by birth, as was common law practice even before the 14th Amendment.
I mentioned yesterday Anand Giridharadas’s personal stake in the birthright nonissue. He was born in Cleveland to Indian parents who were not yet citizens. Under Trump’s (and John Eastman’s) reading of the Constitution, he is a bastard American, not the genuine article. Priya Parker, his wife, was born in Zimbabwe to an Indian mother and a white American father. Giridharadas and Parker live in Brooklyn and have two children.
Hypothetically, had Parker not had an American father, and had she had children with Giridharadas in the U.S. before gaining citizenship, then under the administration’s reading of the Constitution, both Giridharadas and Parker being bastard U.S. citizens, their American-born children are noncitizens as well, stateless people ripe for DHS deportation to we-know-not-where.
This is what Trumpism is smoking. Wanna bet they’ve got agents scouring enemies’ backgrounds for immigrant roots they can exploit?
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