A lot of our systems work because everyone at least half heartedly sort of goes by the rules. Yes, everyone sort of pretends to obey the rule and hence it works. In reality these systems are extremely fragile and a small committed minority can totally break years of precedent and systems. I think we are at that phase right now from the right side and soonish we will see the same from right left as well.
The majority seems too trusting that the government will appeal its losses.
Strategically, the government could enact a policy affecting a million people, be sued, lose, provide relief to the named plaintiffs, and then not appeal the decision. The upper courts never get the opportunity to make binding precedent, the lower courts do not get to extend relief to non-plaintiffs, and the government gets to enforce its illegal policies on the vast majority of people who did not (likely could not) sue.
Since we’re rendering people to El Salvador, there’s no reason some ICE bounty hunter can’t grab you in Massachusetts, and dump you in some Home Depot parking lot in the Carolinas.
This administration does not really care about the rule of law. It cares to some degree about public perception. The timing of this ruling is about revoking birthright citizenship, which is a huge Constitutional trampling. There were opportunities four years ago for the SC to step in and they refused to intercede. For example, why didn't they rule in favor of executive authority when President Biden he tried to forgive student loan debt and a Federal Judge in Texas deemed it "unlawful"?
Now we get to see Americans have their legitimacy removed so they can be sent to "Alligator Alcatraz", the new prison being built just for them in the Everglades.
> For example, why didn't they rule in favor of executive authority when President Biden he tried to forgive student loan debt and a Federal Judge in Texas deemed it "unlawful"?
"What no one seemed to notice," said a colleague of mine, a philologist, "was the ever widening gap, after 1933, between the government and the people. Just think how very wide this gap was to begin with, here in Germany. And it became always wider. You know, it doesn’t make people close to their government to be told that this is a people’s government, a true democracy, or to be enrolled in civilian defense, or even to vote. All this has little, really nothing, to do with knowing one is governing.
"What happened here was the gradual habituation of the people, little by little, to being governed by surprise; to receiving decisions deliberated in secret; to believing that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if the people could not understand it, it could not be released because of national security. And their sense of identification with Hitler, their trust in him, made it easier to widen this gap and reassured those who would otherwise have worried about it.
"This separation of government from people, this widening of the gap, took place so gradually and so insensibly, each step disguised (perhaps not even intentionally) as a temporary emergency measure or associated with true patriotic allegiance or with real social purposes. And all the crises and reforms (real reforms, too) so occupied the people that they did not see the slow motion underneath, of the whole process of government growing remoter and remoter. (https://press.uchicago.edu/Misc/Chicago/511928.htm)
It seems like it was ruled that instead of 1000, much more local, people able to protect constitutional rule with the force of the judiciary, we now have 9.
If you analyze only based on power changes, now fewer people have more power.
This had to happen. The state of affairs prior to this ruling is that any of 700 district judges could unilaterally block the president from exercising his authority under the constitution pending a review, including matters of national security, based on their own subjective politics. It broke the proper functioning of the government. This restores a proper functioning balance of powers.
>The state of affairs prior to this ruling is that any of 700 district judges could unilaterally block the president from exercising his authority under the constitution pending a review, including matters of national security, based on their own subjective politics.
It would be more accurate to say that prior to this ruling, any of 700 district judges could unilaterally block the president from exceeding his authority under the constitution pending a review, including matters of national security, based on their own subjective view of the law. It may differ in other countries, but under the US Constitution, the judicial branch ultimately decides the limits of executive authority, not the President.
If it's truly a matter of national security, the President could always file emergency appeal and it would almost certainly be granted. If it's such a dire and immediate emergency that even those few hours were critical, it's doubtful that any President would feel obligated to obey the injunction anyway.
Far from preventing the proper functioning of government, this was one of the few remaining guardrails maintaining the proper functioning of government under unprecedented circumstances.
Your premise is false, exceeding is not the limit, because the limit is at the behest of any of the judges; given a judge exceeds their rational, then they exceed their rational ability to limit the executive branches power
And if the judgement is in error, it will be appealed and overruled by a higher court. This is how our system works. We're only seeing it as a "problem" lately because the past few administrations have leaned increasingly heavily on unilateral executive action rather than legislation as the constitution designs, and as we'd been doing successfully for the previous 200 years.
really there's no limit to presidential power. the constitution is non-binding to the president. thus, there is no such thing as an executive breech of power, because they dont need to follow any laws set by congress, and dont even need to leave at the end of a term or when congress removes them.
its all just some text on a poece of paper, and neither congress nor the executive wield the military, so their opinions are irrelevant.
I'm personally much less worried about genuine national security matters getting temporarily blocked than I am about general authoritarianism from the President (any President). Given the impotence of Congress, what checks on executive power are we left with?
Liberals really should arm themselves before these people finally classify "disagreeing with daddy" as a mental disorder. [0] It is obviously hilarious to think the "conservatives" and "2A enthusiasts" would possibly help defend lefties' right to bear arms at this point, as they've shown themselves to be utterly devoid of actual values.
People across the political spectrum have an obscene amount of faith in "can't happen here" beliefs being an actual impediment to authoritarianism.
You don’t have to defend yourself from the entire US government, just the quality of government representation who shows up and decides to violate laws or your rights (and your life is in imminent danger). “Better to be judged by twelve vs. carried by six.” Otherwise, you’re default dead. Odds are better in jail on US soil than an El Salvadorian prison. I agree full out civil war against the US military on US soil is a different threat and engagement model. 5 million people participated in the No Kings protest, more than double total active military members on US soil, for example.
(position derived from first principles and threat modeling, with input from several US military service members and a physical defense subject matter expert)
Well, for a country that's faced attempts to be "tamed" by three superpowers over 200 years, Afghanistan's holding up pretty well. It exists and independent! By the way, it crossed my mind that all the superpowers that tried their luck are no longer superpowers. Britain's just a weak shadow of itself, the USSR completely collapsed. What fate awaits the USA?
Even beyond the lives lost on the side of the anti-US fighters in those places, who wants to bet on if the US would give up and walk away and just let any random local armed community in its own territory ignore it?
Will you see eventual retreat, or will you see eventual overwhelming force? The US didn't want to bulldoze these other countries and jail or kill everyone and set up a new state; very different than how the US would handle more Wacos.
Using private weapons to fight against the government to protect your rights is a laughably-low-probability-of-success scenario. Even when insurrections or rebellions succeed they often end up... not so great.
We have seen what you get when you have an armed populace. Highly armed cops. Highly armed federal agents. Military equipment for civilian forces. All necessary in order to compete in the arms race against the "bad guys." All cheered for by conservatives, of course!
All that make it that much more easy to start cracking down. Maybe as a first step, issuing pardons for the rebels on your side while increasing the use of force against those protesting you.
Guns are not defensive tools. If you have a gun, but the government shoots first, you still lose.
Hitler's SA (the brownshirts) weren't government officials, nor were Mussolini's blackshirts. Nor are the Proud Boys. There are many more modern examples of pro-government militias in Venezuela and the mid-east.
You never know who's going to deputize themselves as "law enforcement", with the quiet encouragement and plausible deniability of the ruling political party. Guns are unquestionably useful defensive tools against these people.
Either way, so long as it's legal to have guns, but they are disproportionally distributed along political lines, it makes sense to try to counterbalance that.
As it is, with gun ownership leaning firmly right, Trump has a massive number of armed paramilitaries that he could lean on. In any large-scale suppression of political dissent, those would be the people breaking your door at night, not uniformed feds (there simply isn't enough of the latter). Thus even if you're anti-gun in principle, it still makes sense for left-leaning people in this country to arm given the overall political climate.
This implies that executive orders should be the status quo, which deviates from the design of the American system of government. The courts should not be routinely blocking the president because the president should not be routinely ruling by executive order. This change paves the way for additional power concentrated in the executive branch which is already far too powerful. It is the next step towards an authoritarian regime and no good will come from this ruling.
Having a strong federal government in the first place deviates from the design of the American system of government. We ought to eviscerate federal government power and devolve most executive power back to the several States. That would make national politics far less contentious.
We tried that. It was called the Continential Congress, and it was a spectacular failure.
If you want the US to be a loose confederation of 50 sovereign nations, fine. Just hope you live in California, New York or Texas, because every other state is going to devolve into the American equivalent of Eastern Europe.
The Continental Congress failed because it gave the federal government too little power, but that was fixed with the US Constitution. There was that long time period between that and Wickard v. Filburn, you know.
In this case, the president does not have the authority under the constitution to purport to invalidate the citizenship of natural-born citizens. It is the executive that broke the proper functioning of the government.
I know words are just words, but trying to re-interpret "subject to the jurisdiction" is such a ridiculous over-reach.
Enjoy the chaos though, because some later administration as a revenge will very likely strip the rights of folks who can't show a naturalization certificate in the same way.
I really don't understand why they didn't turn the case into a 14th amendment case. I guess they wanted to provide more slack and time for their benefactor and political ally (SCOTUS conservatives <--> Trump)
Your news sources have woefully misinformed you. Trump's argument is that it's not enough to be born here, you have to also be a charge of the country:
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
Note the "and subject to the jurisdiction thereof". Trump's argument is that people born in America to tourist parents here for a few weeks (for example) aren't subject to the jurisdiction of America. It's a valid argument to make, even if you come down on a different side. Even the author of the 14th amendment said that was the point of that clause. Even in logical terms it makes sense: You can't just let anyone in to give birth and then collect benefits; it's unsustainable.
However, this case wasn't about citizenship. It was about the broader issue of lower courts issuing restraining orders outside their jurisdictions. It's a recipe for chaos. There's a reason why there are multiple jurisdictions, and courts are limited to their jurisdictions. What happens when two lower courts issue conflicting nationwide orders? The only court in the US that has jurisdiction over the entire country is the Supreme Court. This was a losing battle.
There's a right way and a wrong way to go about addressing problems. Court cases are sometimes more about the core issues involved than the concrete circumstances. Sure, birthright citizenship was the reason for the suit, but the core issue was judicial overreach. Don't get mad because the way your side was "winning" was by cheating, and they were stopped. Try having an actual good argument, and doing things the right way by arguing the actual case in a court.
> tourist parents here for a few weeks (for example) aren't subject to the jurisdiction of America. It's a valid argument to make, even if you come down on a different side
This ‘jurisdiction’ claim essentially only applied to people who had a diplomatic status while in the US. A traveler from Canada has no special right against being prosecuted (just like you would not were you to go to, say Britain).
A governmental figure from Canada would have protections - we would need to interact with another sovereign to hold them accountable.
This really has nothing to do with tourism, outside deceitful assertions on television.
There was lots of debate in the Senate during the passage of the 14th Amendment; much of it revolved around birthright citizenship. Both those who wanted the Amendment to exclude people who were born to those temporarily in the US and those who did not acknowledged that, in the form passed, it did not.
Sen. Edgar Cowan of Pennsylvania said "I am really desirous to have a legal definition of ‘citizenship of the United States. Is the child of the Chinese immigrant in California a citizen?" He didn't think that child should be.
Sen. Conness of California said he thought it should cover "the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States." And let's remember, as Conness was certainly aware, that many of those Chinese laborers had been imported illegally.
They knew what they were passing, and they knew it included birthright citizenship. Senators who wanted to alter the Amendment to exclude some people failed.
The OP said that the courts were preventing the president from exercising his power under the constitution, I replied that he does not have this power under the constitution. That's all.
There's a right way and a wrong way to go about addressing problems. If the president wants to exclude natural-born children of illegal immigrants from citizenship, he can lead an effort to amend the constitution.
If a foreign diplomat is pulled over by the cops after running over a pedestrian, they can flash an ID card and drive away. If an undocumented immigrant does the same, they go directly to jail and probably get deported in short order. That's what jurisdiction means.
In ordinary times, the notion of establishing precedent that immigrants are not under the jurisdiction of the US would be met with sputtering indignance for all but the most idealistic anarchists. Because that goes way beyond open borders, it promotes foreigners to super-citizens untouchable by the law.
I mean they paid some $97 Billion in federal, state, and local taxes in 2022 [0], the country knows about them, and taxes them. They contribute so much to the economy Texas refuses to have business verify worker's work status for fear of the economic impact it would have.
The core premise of your racist rant is built around a the massive edge case. Reality is this policy will probably disenfranchise more children of American soldiers born abroad than prevent the alien invasion you’re scared of.
The notion that the sins of the father impact the child is repugnant. The interests of the nation as a whole not allowing a clear violation of the birthright of our fellow citizens have to be addressed in a lower court, as the Supreme Court isn’t even required to hear their case.
You’re allowing yourself to be manipulated into expanding the power of an executive who will never leave and a court whose power and individual avoidance of culpability for bribery and corruption. I suppose you’ll shrug when we decide that the electoral college can choose to follow the “silent majority” as opposed to the voters.
> Even in logical terms it makes sense: You can't just let anyone in to give birth and then collect benefits; it's unsustainable.
The 14th Amendment was passed in 1868. Government benefits were basically nonexistent at the time, and besides, with the US population at under 40 million people, we needed more citizens, not fewer. Your "logical" argument is completely anachronistic and irrelevant.
The conservative side of the Supreme Court claims to rule based on what the writers of the Constitution had in mind. This is another example of how they completely ignore what the writers/framers/etc. of the Constitution intended as soon as it interferes with the larger conservative agenda that they serve.
> Trump's argument is that people born in America to tourist parents here for a few weeks (for example) aren't subject to the jurisdiction of America. It's a valid argument to make…
I suspect, if they commit a crime or overstay their visa, we'll suddenly decide we have a little jurisdiction after all.
If you are born and live in the US, how could you possibly not be "subject to the jurisdiction" of the United States? Likewise, if you are born in the US to tourist parents who then leave the United States with you, how exactly are you supposed to "collect benefits"? And even if you are "collecting benefits", to be a citizen you'd have to also be paying your taxes, which should entitle you to said benefits.
> And even if you are "collecting benefits", to be a citizen you'd have to also be paying your taxes, which should entitle you to said benefits.
According to the SF Chronicle, about 72 million US households (40% of the population) paid no federal income tax in 2022. I don't have exact numbers but I doubt anyone would dispute that public benefits flow disproportionately to those 72 million households for obvious reasons. So the cause and effect of being a citizen and paying taxes is very tenuous.
> Where exactly is the unsustainable part of this?
If it's unsustainable, then someone should propose a constitutional amendment to fix it.
It stretches credibility to claim that the "proper functioning of the government" is broken today requiring a change by something that is ... quite old.
(I think there's a MUCH stronger argument to be made that the proper function of the US government has been broken by Presidents changing thing by executive order because nobody has enough votes to do much in the Senate. It seems like "nobody has the votes to make big changes" should be an indicator that not making big changes is the proper result.)
The status quo would be "issue a ruling, it may or may not get put on hold while the government appeals, eventually it gets to the Supreme Court if necessary." Seemed to be working. Republicans obviously have used this to challenge stuff themselves.
It is unclear why there is a need for giving the government an escape hatch to let them say "sure, we lost this one case, we'll stop enforcing things against these few people, we just won't appeal and will continue to do whatever we want nationally instead."
> It seems like "nobody has the votes to make big changes" should be an indicator that not making big changes is the proper result.
"Nobody has the votes" seems like a weird way to put it, because is implies that everyone wants to make changes, they just can't agree which changes to make. On the contrary, I think the issue is that most congresspeople do not want to make changes. Changes are scary. If your name is associated with a change, and that change becomes unpopular, it might threaten your reelection!
> "Nobody has the votes" seems like a weird way to put it, because is implies that everyone wants to make changes, they just can't agree which changes to make. On the contrary, I think the issue is that most congresspeople do not want to make changes. Changes are scary. If your name is associated with a change, and that change becomes unpopular, it might threaten your reelection!
The split in Congress is driven by the split in the people and the people DO want actions taken. Just - different actions for each faction.
If there was only one fairly unified party of voters in the country and a Congressman was refusing to vote to do what the voters wanted them to do, they'd get voted out.
"Not doing anything to be careful" is a bug enabled by the population being split.
I disagree. The trouble with your explanation is that there are plenty of issues which have had clear broad bipartisan support for decades. This is mostly stuff that doesn't even come up in mainstream political discourse and isn't even clearly associated with a particular party. It's basic stuff like consumer protection (e.g. predatory loans, telemarketing), government integrity (e.g. lobbying, term limits), and more.
As a former-red-state-citizen for decades, "basic stuff like consumer protection" is not something that I think has clear broad bipartisan support. Caveat emptor! Regulation [of scammers] bad! Free speech [for scammers] good! "I'm from the government and..."
A certain amount of less-partisan stuff does get passed all the time. But, to get more subtle about it, I think the danger if you help pass something like consumer protection - even if MOST people on both sides would support it - isn't that you risk getting branded with it if it backfires. It's that you get labeled soft in a way that the die-hards who dominate primaries can be rallied against. The right wing has been VERY aggressive in pushing purity tests for decades, and eventually you have convinced everyone of the final-battle-of-good-and-evil stakes. The left has been doing it more and more too, sadly - but it's not like what they were doing before was working too great.
That situation also gives increasing sway to the rich lobbyists who also want to make sure those basic things don't happen. Your base won't get mad at you for failing to ban abortions nationally because obviously you can't. So they don't put much blame on you for not getting the smaller stuff done either, or scrutinize your donors too much.
> As a former-red-state-citizen for decades, "basic stuff like consumer protection" is not something that I think has clear broad bipartisan support.
This might have been the case in the region you grew up, or you might be deceived by narratives in mainstream political discourse (which are driven more by politicians, interest groups, and media than by popular opinion). Regardless, there are plenty of national policy polls that show high Republican support for a wide array of consumer protection policies. This one turned up from a quick web search:
Not a single decision so far was related to national security. The checks and balances exist and they are/were working, and this is an attempt to circumvent that.
But don't forget the emergency narrative: "We're being invaded!" and "Governors (bureaucrats, etc.) aren't doing what I want them to do it's now an emergency!". This is not only how our dictatorial executive overreaches, but also how its supporters justify the means in their minds.
From my reading and understanding, they still can, it just involves an _immense_ amount more paperwork. The ruling is basically that judges can only provide injunctions for the named party in a case, not universal injunctions. So instead of one injunction, each person impacted by the EO will have to file for their own injunction. Which will likely be granted due to similar injunctions already granted.
So it reads to me like we've ended up in a similar spot, but with the requirement that an insane amount of paperwork happens.
Not all people affected by an EO have an equal opportunity to generate that paperwork. Going to court or getting involved in the legal system have costs, of both time and money. Not something all people have enough of to spare.
No it’s not the same spot at all. No one will file injunctions. There is also the possibility that another’s court case for the same reason won’t be decided the same way.
What this means is that it’s now ok for the orange man to break the law. Rule of law will only be upheld in very limited circumstances in very limited areas.
Law and order is frequently said, but few people separate the ideas. Law is justice while order is the absence of open conflict. They are not the same thing.
This is a ruling which chooses order over law. Order without justice is tyranny.
Mind you this simply meant that, if important enough to temporarily block, an appeal would be needed to ensure that what the President was doing was legal, which is entirely reasonable. This was simply an extra legal check on the president to keep the president inline with the law.
I may be mistaken but this is under the assumption that the government chooses to appeal their losses in these lower courts. So if the govt gets to choose between just not appealing and not having to deal with these injunctions or appealing and risking an injunction, why would they appeal in most cases?
I agree with you, but for a different reason, assuming I am even understanding what is happening here, I'm not American.
My reading is that under the previous system, a single district could prevent an order federally, even if every other district judge agreed with the new order.
I don't see why a single district should be able to influence the entire country. I would understand that they could limit powers in their district, and potentially challenge laws at a state level, and then federally.
Let's look at how this could have impacted a topic that gets my attention in the US, gun laws.
I'm definitely left, so let's say a president came in and made some order about changing gun laws and made it harder to get a gun.
It seems to me, that if that were to occur, a single judge in a gun-loving district could block the order universally for all the other states?
That doesn't seem right. It does make sense that they could say that law doesn't apply to our district, and we will challenge that law being applied to our state and if the state agrees, they could then challenge the law federally.
I'm obviously making up a ton of stuff about a system that I don't understand.
Any judge in the country based on their own subjective politics can also create a precedent by ruling a certain way, and that single precedent might be used even a hundred years later. So by the same logic, this also should go away since it means any judge anywhere at any time can basically sediment history with their opinion
> Any judge in the country based on their own subjective politics can also create a precedent by ruling a certain way, and that single precedent might be used even a hundred years later.
District courts do not create precedent. Precedent comes from appellate courts.
Arguing for or against common law wasn't the point (personally I'm not a fan of it). The point is that the same reasoning calls for the abolition of common law, so GP should take that into consideration
The post-WW2 bureaucratic state became so massive that it was first possible, then desirable, to weaponize it against your opponents.
This is why we should have small government. If the government has a narrowly scoped role, the fear of the other side getting elected goes away. With huge government comes great concern about who’s in it.
As proof of that principle, how many people are really fired up about who is elected locally? How about nationally? The reason is the federal government has way too much power.
I would bet if the democrats did this, the collective right's head would explode. I love how selective Trump is with following the constitution and its amendments, his supporters as well. They will die on their sword for 2A, but 1A when it suits their agenda and all others are just loosely worded suggestions
I don't remember who it was who pointed this out, but it would appear as though the right considers hypocrisy to indicate a position of power. These are the rules for you, but not for me, because I'm more powerful.
Thats why the government can just skip ahead and call the Supreme Court, and then the Supreme Court lifts it because apparently being unable to do illegal things is Irreparable Harm (actually makes a mockery of the concept of course).
In the meantime, when I sue John Doe and get an injunction, they are enjoined from their conduct everywhere; but when I sue the government, it should only apply to me? Makes no sense.
The balance of powers have been broken for over a century at this point with ever increasing “emergency” declarations that don’t go away, giving the executive branch immense power.
but instead of a few cases, now there will be dozens of cases because now each state/district has to fight Trump's authoritarian tendencies, and in the meantime he can imprison (just for starters) illegal immigrants in "3rd countries" known for torture and the worst prison conditions impossible, and seemingly he prefers to do that.
1. The executive is doing something illegal to hundreds of thousands of people.
2. Dozens and hundreds of people sue them.
3. The executive loses in court.
4. The executive does not appeal to the supreme court the cases it lost.
5. Thus, no binding precedent that stops the illegal action in #1 is set.
This is actual lawless lunacy, and this enshrines it as SOP going forward. Is this the country you want to live in? Do you think this is how it should run?
Here's a wild idea. If the executive disagrees with the federal courts on the merits of whether or not its decisions are illegal, it can appeal up to SCOTUS, and win a case on its merits. It can't do that because even under this SCOTUS, their case has no merits.
> exercising his authority under the constitution pending a review
That is the entire bloody point of checks and balances. You are cheer-leading the complete destruction of them. The government, when challenged on the legality of what its doing, needs to win their case in court, because the courts are the final arbiters of written law.
Yes, this has been going on for decades at various levels of government.
It's very common when it comes to gun rights. The government (local/state and federal) will frequently avoid appealing if they think they might then lose the case, setting a wide precedent for millions of people.
I get the concern, but this ruling doesn’t stop courts from checking illegal executive action. It just says injunctions should only apply to the actual parties in the case.
Nationwide injunctions were never clearly authorized by statute, and letting any one of 700 district judges block a federal policy everywhere created chaos and forum shopping.
If a policy is truly unconstitutional, the proper path is a class action or taking it up to the Supreme Court
Not giving individual judges a veto over national law.
Not necessarily. That’s where class actions come in
The point is that relief should be tied to proper procedure, not handed out universally by default. One judge shouldn’t decide national policy based on one plaintiff unless the case is structured to justify it
They slow down the “forever lawsuit” problem by consolidating claims, reducing conflicting rulings, and giving defendants a clear path to challenge the case’s scope. It’s not perfect, but it’s better than unlimited nationwide injunctions from any one court.
No. If a ruling has determined that a government action has the potential to be illegal and must be halted for the suing party, it should absolutely be halted for everyone, because you're dealing with an action that's ambiguously illegal for everyone. It's not just the wronged party at the center of this issue, it's the capacity for the government to engage in illegal activity. Once you've identified behavior as questionable, you stop the behavior.
> It just says injunctions should only apply to the actual parties in the case.
The actual parties will have been shipped off to another country, unable to bring the case, and anyone not already deported would lack standing to challenge the action.
> Nationwide injunctions were never clearly authorized by statute, and letting any one of 700 district judges block a federal policy everywhere created chaos and forum shopping.
What chaos that would be worse than the chaos of jurisdictional fracturing they're asking for here and the possibility to not let cases escalate to courts with supposed national jurisdiction? Rulings were stayed all the time.
The existence of a national injunction seems built in to the job of a federal judge since federal law is definitionally national. Voiding it only locally, or only in regard to specific plaintiffs, seems like a huge wishful reach.
But, we did get conflicting nationwide rulings from different district courts, which encouraged forum shopping and rushed litigation. Federal law is national, but relief in equity has always been limited to the parties before the court unless a class is certified
> The existence of a national injunction seems built in to the job of a federal judge since federal law is definitionally national
That’s a clever line.
See, there is a difference between saying “this law is unconstitutional” and saying “this law is blocked for everyone, everywhere.”
>But, we did get conflicting nationwide rulings from different district courts, which encouraged forum shopping and rushed litigation.
And... who was suffering for it, exactly? How was it hurting me?
> That’s a clever line.
>
> See, there is a difference between saying “this law is unconstitutional” and saying “this law is blocked for everyone, everywhere.”
"This law is only blocked for these people" is the less "clever", more "obvious" situation in your mind? No, that's a clever hack that same sneaky bastard came up with to justify removing further obstacles for the executive to increase its own power.
But it seems to fly against the face of history. Federal law has been in the business of preempting local authority for centuries. Now we want to unwind that and let jurisdictions opt-out case-by-case?
This ruling opens the door for more inconsistency. Things can dead-end in a fractured state much more easily now.
Without you telling me any specific harms of the "chaos and inconsistency", and how you think they will be reduced now, then I can only consider the harms of the new potentials for inconsistency which is "the excecutive intentionally does not appeal when they lose to small groups because they want to be able to continue to overreach nationally."
What are the concrete examples of chaotic things that caused issues that you don't think could happen now?
1. In 2017, one district court blocked Trump’s travel ban nationwide, while others upheld it. That led to confusion at airports and legal whiplash
2. In 2019, one judge blocked the public charge immigration rule nationwide, while others allowed it. The rule ended up applying in some States and not others
3. Multiple district courts issued conflicting nationwide injunctions on Title IX guidance for transgender students during the Obama and Trump years
Those are just some
Inconsistency is still possible. But the alternative was worse
What we had was a race to the most favorable courtroom
The fix isn’t unlimited injunctions. It’s reform and not stretching judicial power beyond what the law allows
How is there less room for inconsistency now? If a judge has said five plaintiffs can play on a certain sports team in one jurisdiction, now the sports administrators need to know every ruling in every jurisdiction that their league functions in?
What makes you think "reform" is going to happen here? Have you read much of the material pushing for increased executive power on the right? It's very clear that the goal is solely to remove impediments to stretch executive power to the point that executive power decides what the law allows.
No, all of these cases are not resolved to this day
Title IX issue is not resolved. Public charge rule resolved itself because the Biden admin rescinded the rule. But not before creating mass confusion. Trump travel ban was resolved by SCOTUS as valid once Trump modified the ban
The point is that nationwide injunctions from different district courts created that chaos in the first place, often forcing rushed Supreme Court intervention just to untangle conflicting orders
> Whether you were personally hurt isn’t the point. Conflicting nationwide rulings from different judges created legal chaos and undermined consistency
So now you can be a US citizen when in New York but not while in Kentucky. Sure to cause no chaos.
Right, it’s a delay, not a final veto. But when that delay applies nationwide, it functions like a veto until SCOTUS steps in, which can take months or years
If the executive avoids appeals to dodge precedent, that’s a separate (and valid) concern. But the solution isn’t to stretch injunction power beyond its legal limits
It is about who gets to block national policy for everyone, based on one local case. That kind of sweeping relief was never authorized by Congress
> Of course, because innocent until proven guilty.
The purpose of courts litigating the legality of executive actions is not establishing innocence or guilt, so what you're saying is completely irrelevant.
The president doesn't go to prison because some court found that he signed an illegal executive order. (But it sounds like you maybe think that should be the case. It's hard to tell, because you aren't saying anything coherent.)
> The POTUS doesn't need to ask for permission to politicized local judges
Let's play a simple game. If he signs a blatantly unconstitutional and illegal EO ordering the US Marshals to have you and your family arrested, tortured, and shot tomorrow, whose permission do you think he should need? Which parts of the government would be able to stop him?
You seem to think that no 'politicized'[1] judge should be allowed to say "Whoa, hold on there, that may be illegal."
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[1] What the hell does 'politicized' mean? Is there a single person in government who is not 'politicized'? Is SCOTUS somehow not 'politicized'? Is the executive?
It's astonishing how many people fail to address the legal argument in the SCOTUS opinion, disregard the legal question altogether, and apparently want the courts to decide how things "should" be, regardless of legality.
IANAL but I read SCOTUS opinions regularly and this one is hard to argue with. If things should be different then we need legislative/constitutional changes.
> If things should be different then we need legislative/constitutional changes
lol, yes, like birthright citizenship written plainly into the constitution.
What good are your further legislative/constitutional changes worth if the executive can just ignore them except for the single individuals who file suit?
> The ruling today very explicitly and clearly does not touch the birthright citizenship issue.
In practice it absolutely does, because now everyone is scrambling to try and protect their clients that were previously covered by the larger injunction. The supreme court could have just not taken the case in the first place, or let the injunctions stand as an appropriate use of injunctions (for grossly unconstitutional executive orders)
The only reason the avoided is to avoid countering Trump, it's dead obvious that Trump is forbidden by law to do what he's doing. It's going to take months to years for a real 14th amendment case to reach them, meanwhile he's shipping people off to "3rd nations" to imprison them there in the worst conditions imaginable and indefinitely with no court process or trial. Why should an illegal immigrant go to prison, potentially for the rest of their life just because they illegally crossed the border?
The judicial still has significant tools to stop an executive branch that is clearly acting illegally. So does the legislative. If these branches don't leverage those tools, or those tools don't work, we have bigger problems.
Guess what: You're living in the world of bigger problems.
> The state of affairs prior to this ruling is that any of 700 district judges could unilaterally block the president from exercising his authority under the constitution pending a review
This ruling does not "restore" a functioning balance, it damages it. This has never been a problem in the past because previous administrations (regardless of politics) didn't take illegal actions daily. Framing it as "politics" is disingenuous as many of the judges ruling against Trump were appointed by him.
The system was working as intended to check an executive acting outside of the law, but once again, the supreme court continues to empower the executive.
When the Supreme Court has multiple members who have and continue to openly break the law themselves, they have a vested interest in keeping a party in power who is also openly corrupt.
Judges have never been able to make rulings based on their own subjective politics. They must justify their rulings under the law.
I could extend some merit to the idea that injunctions should be limited in complex cases where case law is thin and the law is less than clear. When executive orders are clearly unconstitutional, however, I do not then see any reason for limits.
Judges make use of reasonableness, superset of rationality, all the time. The issue is what is reasonable to 30% is not reasonable to another 25%. As long as there is a political backing for their reasonable decisions, they are fine. One can call it subjective or political. That’s why judges do judge and provide good reasons that can be defendable by 20% of those who vote and have political sway.
Agreed. The system simply cannot work if any district judge anywhere can veto the president's policies.
In theory it's just an injunction, but the reality is this kind of stuff takes forever to get hashed out in the courts, and Trump will be well out of office before it gets settled.
I have no problem with SCOTUS injunctions, but there are too many district courts for this to work.
The way things were heading the president was going to be forced to start ignoring injunctions, and he would have been right to do so. The Roberts court had to make this ruling for the government to function.
only under the assumption that the governments job is to contravene the law of the land - which up until pretty recently no one believed including the government
not a lawyer, but I believe the process involves (a) deciding if there is a case at all to be argued, which is this case there clearly is, and (b) weighing the harm of letting the government send US citizens to Sudan or life in prison in El Salvador vs the harm that would be caused by preventing the government from doing that while the case is adjudicated - which seems to be nonexistent.
> Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit.
If that’s the case, I’m curious if it could be fixed with a class action, so everyone (or everyone born in the US) is a plaintiff? If that’s legally a thing.
It could be fixed for the class with a class action. But the courts have also don't their damndest to make that hard too. Requiring a class action means that courts have the additional opportunity to say "nope that's not a valid class" (WalMart v Dukes being a rather famous example).
It may not be surprising to learn that over the past several decades conservative Congresses (through the so-called Class Action Fairness Act and its ilk) and Supreme Court decisions have all but eliminated class actions.
CASA Inc. in Maryland is in fact refiling its broader lawsuit as a class action case, and has asked for a wider injunction on that basis. So we'll see.
I don't think class action lawsuit is needed here.
It's enough for one case to get to SCOTUS and then we will hear their opinion about how 14th amendment should be interpreted.
It will be an interesting case I think both 4-5 against and 5-4 in favor of changing the interpretation is possible (with 3-6 and 6-3 less likely outcomes).
The problem (which Sotomayor raises in her dissent, pages 94 and 95 of the PDF) is that it may never reach the supreme court:
> There is a serious question, moreover, whether this Court will ever get the chance to rule on the constitutionality of a policy like the Citizenship Order. Contra, ante, at 6 (opinion of KAVANAUGH, J.) (“[T]he losing parties in the courts of appeals will regularly come to this Court in matters involving major new federal statutes and executive actions”). In the ordinary course, parties who prevail in the lower courts generally cannot seek review from this Court, likely leaving it up to the Government’s discretion whether a petition will be filed here. These cases prove the point: Every court to consider the Citizenship Order’s merits has found that it is unconstitutional in preliminary rulings. Because respondents prevailed on the merits and received universal injunctions, they have no reason to file an appeal. The Government has no incentive to file a petition here either, because the outcome of such an appeal would be preordained. The Government recognizes as much, which is why its emergency applications challenged only the scope of the preliminary injunctions
That's a good point.
I was under the impression that the current administration thinks it can win a case about 14th amendment in case both parents are not legally in US with current majority but if they are in fact not appealing it would mean they think they would lose.
Wait, doesn't this just... End the constitution as a whole? So long as the current executive wants some unconstitutional thing, they get that unconstitutional thing in every state on their side in perpetuity? The constitution is now... per-litigant?
Oh, of course. Because it's federal law, being in a state with an injunction isn't actually a protection. A federal LEO can detain & relocate you, charging you with violating a law in another state where there is no such injunction.
This is a whole-sale shredding of the constitution.
So for example, seeking reproductive rights in one state which is forbidden in another?
Forgive a possibly silly question but in what sense does being "in" Florida mean you are bound by Florida state law when you leave? How long did you need to be in Florida before you became bound by its law? What if you fall pregnant after you left? Can you be in breach without ever having been in Florida, and a LEO can therefore take you there and charge you?
No, not quite. State laws only apply in that state. They are not technically allowed (but sometimes try) to enforce laws on actions outside of that state. So, in this case, you could not be charged with having an abortion outside of Florida, from inside of Florida, based on Florida law.
But let's look at the birthright case that this ruling comes from.
Let's say Nevada state sues the federal government. The ruling is made from their district court that birthright citizenship is clear and this EO is illegal. An injunction is placed against the EO.
The state of Kentucky does not sue.
Previously, the Nevada court injunction would apply nationally. The EO is unconstitutional. EOs are federal, the constitution is federal. So, clearly, it is unconstitutional everywhere and must be stopped.
The federal government can then go through several layers of appeal to prove that this was a mistake and the EO is legal. All the way up to SCOTUS, who makes the final judgement and cannot be appealed.
What SCOTUS just ruled is that the injunction against the federal government only holds the EO from applying to the specific litigant. That can be a whole state, a group of people, or a single individual. Even though the EO is now ruled unconstitutional in the eyes of the federal court de jure, it is de facto still the law of the land by default to all other entities.
And it gets worse. A litigant cannot appeal to the next court, only a defendant that loses. And SCOTUS only has to address cases that are appealed. There is no mandatory reconciliation process. That means, for an infinite amount of time, individual people will have different constitutional interpretations that require a background of every case that has ever involved them.
So, back to our example. If the federal government loses in Nevada and there is no ruling in Kentucky... What the fuck even happens? Someone is or is not a citizen, that's literally the point behind Dread Scott and Obergfell, but they've contradicted those cases and invented a constitutional superposition.
So, in Nevada a naturalized citizen with non-citizen parents is... A citizen? Because of the injunction? And what if they're in Kentucky, but were born in Nevada? Or vice versa?
But, no, this isn't a state law. It's federal. Which means it doesn't matter what state you're in when you do it, it's still illegal. And federal LEO had the authority to try you in a different location than where you were arrested. So - born in Nevada or Kentucky, where you are now, that doesn't matter. Effectively, you have no citizenship. Again, this is quite literally Dread Scott.
This SCOTUS ruling effectively disables the constitution and dissolves the union of states. I'm not being dramatic, this is also the opinion of Sotomayor.
Curiously, this does not actually extend to other cases. So, say, if McDonalds gets in trouble and an injunction placed against them. That still applies universally.
That should be unconstitutional to either try to prosecute you for actions outside your state or to prevent you from leaving to make those actions, but conservatives are trying!
Realistically, and this is a serious problem, many critical rights in the US only exist because of the court going against the voters. Like, say, the legalization of interracial marriage.
It can go both ways. For example, in 1890-1930, SCOTUS had a series of decisions that had methodically demolished the then-budging laws pertaining to labor rights and business regulations, enacted with wide popular support, on the basis that they violated "economic liberty" rights that the judges have read into the 14th Amendment use of "liberty". You know, stuff like min wage, 40-hour work week, prohibitions on child labor, mandatory qualification requirements for some professions etc.
There are supposed to be able to declare them Unconstitutional. If it's unconstitutional in district 5, why wouldn't it also be unconstitutional in district 10?
Most law, and most law courts deal with is federal law, not constitutional law. A lot of the most contentious recent court issues could be addressed with federal laws. It's just congress is lazy and doesn't want to go on record.
Yes, but things like rights listed in the constitution have been protected by the supreme court regardless of laws. Things like your Miranda rights don't exist because of any law, they existed because of a supreme court ruling.
We’re in this mess because people are not interested enough, educated enough, or engaged enough politically to make their position explicit to drive the direction of legislation and executive action.
Citizens of The United States have every tool available to to work together to shape their communities. The reality is the overwhelming majority do not do that, and you can come up with a lot of reasons why, which are structural in many cases, but the fact remains that the majority of people are not involved in the political process at all, have no desire to be an actively reject any opportunity to be.
Assuming that citizens would all of a sudden become involved because it requires a lawsuit, means that there’s the capacity to do so, which does not exist, and all we need is a catalyst.
If the number of possible catalysts that have already happened in the last decade we’re not sufficient then nothing short of a literal terminator Skynet scenario is going to cause people to take action and I’m increasingly doubtful that even that would do it.
Based on my observation from my work position, people are ready to just roll over onto their backs and have robots slice them from the belly up, because it’s easier than actually doing something that would prevent it.
I think this often gets confused. Voting a president in doesn't give them a blank mandate to do whatever they want, such as break the law. And knowingly doing things that might not get approved by courts, but veiling it in a "novel legal theory" disguise is still breaking the law. Just because slow and thorough processes need to take place to adjudicate these actions doesn't mean that these actions aren't worth adjudicating. So while voting is important, keeping the voted-in president accountable is important too.
According to the Supreme Court, that's exactly what it does. The President simply isn't accountable.
I would not have thought that this is what the Constitution says, but the Supreme Court is the final arbiter of what the Constitution says. That's not in the Constitution, either, but they've appropriated that job for two centuries, so we let them get away with it. The "it's not illegal if the President does it" part is new, though they've been leading up to it for decades, so it's not really surprising.
Or, more charitably: the Supreme Court has says that the president has this authority, in this specific area, and your characterization of this as "breaking the law" is not correct.
Edit: actually, even that is overstating it. This is an extremely narrow ruling that is mainly about the powers of federal judges. It's the sort of ruling that the "other side" will trumpet as settled law when they're the ones in power again.
The second amendment is “very clearly” spelled out in the Constitution yet many roadblocks to gun ownership are thrown up in various states and people STILL make tired arguments about how the amendment “should” be interpreted. For example, the old argument that the founding fathers could have never conceived of AR-15s and thus their legality under the second amendment is debatable.
Likewise, in 1868 the writers of the fourteenth amendment probably couldn’t conceive of rapid international travel and the possibility that pregnant women could just show up weeks before their due date and their newborn child should “obviously” be an American citizen.
The amendment was quite obviously targeted at Native Americans and slaves, not any and all pregnant women the world over who manage to reach the US before giving birth. But as you’re noticing, there’s multiple ways people can interpret laws. It’s rarely as cut and dry as “this is obviously against the law!!!”
> Likewise, in 1868 the writers of the fourteenth amendment probably couldn’t conceive of rapid international travel and the possibility that pregnant women could just show up weeks before their due date and their newborn child should “obviously” be an American citizen.
This is a better point than you realize, and in the opposite direction you intend.
Immigration in the 1800s was a… cursory process. Not only would those kids be citizens, but their parents would have had little trouble staying around.
So is your argument that the writers of the amendment intended for American citizenship to be a contest wherein women the world over should compete to drop anchor babies on US soil?
Poems are not domestic policy, so spare me that tired argument.
And immigration was not a free for all, despite what you may think. We had racial quotas, for one. Limits on how many immigrants we would accept, an expectation that immigrants were processed at designated intakes, and (perish the thought), actual periods of time where we said “we’ve taken in a lot of immigrants, we need to slow down for a while to let things settle.”
> It imposed a head tax on non-citizens of the United States who came to American ports and restricted certain classes of people from immigrating to America, including criminals, the insane, or "any person unable to take care of him or herself." The act created what is recognized as the first federal immigration bureaucracy and laid the foundation for more regulations on immigration, such as the Immigration Act of 1891.
The quotas you describe didn’t come until the 1920s. Well after the amendment.
"Consistent with the views of the clause's author, Senator Jacob M. Howard, the Supreme Court held that because Indian reservations are not under the federal government's jurisdiction, Native Americans born on such land are not entitled to birthright citizenship. The 1887 Dawes Act offered citizenship to Native Americans who accepted private property as part of cultural assimilation, while the 1924 Indian Citizenship Act offered citizenship to all Native Americans born within the nation's territorial limits."
SCOTUS did rule on the anchor babies thing, in 1898.
Indeed, how terrible! Those kids who then grow up in other countries outside the US will eventually be adults who have to pay taxes without sucking up any physical resources of said United States, whatever will we do about this huge drain on our resources? </sarcasm>
Why am I supposed to be mad about people doing this, exactly? Because of hazy "rules are rules" talk?
Well, that's very cynical and maybe you'll be right, but for now the California AG agrees with me. Per a quote in the WSJ [1]:
> California Attorney General Rob Bonta, a co-plaintiff, looked for a silver lining: Red states, which sought universal injunctions to stymie Biden administration policies, would encounter obstacles pursuing that strategy under a future Democratic president, he said.
Call me a crazy, glass-half-full centrist, but I prefer to look at this as a clawing back of extremely broad powers from rather partisan judges. It's been maddening that circuit court judges in a few hyper-partisan districts basically push every decision to the Supreme Court.
> California Attorney General Rob Bonta, a co-plaintiff, looked for a silver lining…
Sure, and Susan Collins thinks Trump "learned his lesson" with his first impeachment. Looking for the silver lining is what we sometimes call "cope". He lost. As a politician, he's obliged to put some spin on it.
> It's been rather maddening that circuit court judges basically push every decision to the Supreme Court.
It is. This sort of thing should've died before ever becoming an EO, and at every level of the judiciary as clearly unconstitutional. That it didn't is a big problem.
Well, if we're predicting the future, here's mine: since they're already basically telegraphing it (and also because it's pretty clear-cut), I predict that they'll overturn the whole thing in a future case, and then the left will be crowing about how mean-ol Mr. Trump was taught a lesson in capital-D Democracy by our powerful system of government.
> There's nothing that binds any Supreme Court to do anything at all.
We agree. So your remark about “nothing in the ruling says. . .” was actually irrelevant to the broader point. From a lacuna in a decision we can conclude nothing.
The Supreme Court has pointedly not ruled or said that the president has the authority to redefine birthright citizenship. What they have actually done is to put very stringent requirements on how the president's authority can be challenged in lower courts.
And notably, exactly the same Republican-nominated Supreme Court judges did not do anything to interfere with exactly the same legal process (nationwide injunctions) when they were aimed at a Democratic president. See, e.g. Biden's student loan forgiveness executive order.
"C. The District Court’s Remedy Was Improper" is a section of the petition for cert in The mifeprestone case from the Biden admin[0], where the SC overruled the district court's PI, but declined to address the question of whether it's PI was reasonable.
I think that comment is referring to Trump v. United States, where the court said that a president cannot be held accountable for using a Constitutional authority to break the law. It is very literally "a blank mandate to break the law".
For example, a president is granted authority to command the military and issue pardons. They have absolute immunity for any act performed using these authorities, including illegal acts such as assassinating or deporting a political opponent or accepting bribes in return for pardons. This is not a matter of opinion or a controversial interpretation, these consequences were discussed during the case and in the opinion, and the court accepted them.
This was also discussed in the Constitutional Convention, where the participants decided the impeachment process, and failing that, four-year terms, were a sufficient remedy.
Sure, that was a concern: a sufficiently large faction of Senators might combine to protect a bad President, or destroy a good one unjustly.
> Mr. MADISON, objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for any act which might be called a misdemeanor. The President under these circumstances was made improperly dependent. He would prefer the Supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part.
> Mr. PINKNEY disapproved of making the Senate the Court of impeachments, as rendering the President too dependent on the Legislature. If he opposes a favorite law, the two Houses will combine agst. him, and under the influence of heat and faction throw him out of office.
Ultimately it was decided that "in four years he can be turned out", so it was not worth addressing further. Indeed some argued that the President should not be impeachable at all because of this.
> Mr. KING expressed his apprehensions that an extreme caution in favor of liberty might enervate the Government we were forming. He wished the House to recur to the primitive axiom that the three great departments of Govts. should be separate & independent: that the Executive & Judiciary should be so as well as the Legislative: that the Executive should be so equally with the Judiciary. Would this be the case, if the Executive should be impeachable? It had been said that the Judiciary would be impeachable. But it should have been remembered at the same time that the Judiciary hold their places not for a limited time, but during good behaviour. It is necessary therefore that a forum should be established for trying misbehaviour. Was the Executive to hold his place during good behaviour? The Executive was to hold his place for a limited term like the members of the Legislature: Like them particularly the Senate whose members would continue in appointmt the same term of 6 years he would periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it. Like them therefore, he ought to be subject to no intermediate trial, by impeachment. He ought not to be impeachable unless he held his office during good behaviour, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised. But under no circumstances ought he to be impeachable by the Legislature. This would be destructive of his independence and of the principles of the Constitution. He relied on the vigor of the Executive as a great security for the public liberties.
>According to the Supreme Court, that's exactly what it does. The President simply isn't accountable.
The president absolutely is accountable. The problem is the Congress for their own reasons refuse to hold it to account. The Congress could remove any president in less than 24 hours with simple majority for no reason whatsoever.
Also, any time anyone actually brings up any details about Presidential elections you'll quick get many people rushing to explain how the people do not in fact directly elect the President and how this is such an incredibly brilliant idea.
Except voting this person to the presidency has given just over 1000 convicted criminals a pardon, as promised in advance. It’s an unlimited and irreversible power.
The Court has long considered that the president has a duty to follow the law, but also that the Court can’t compel the president to follow the law. That is a political question. Congress alone can stop a president by impeaching and removing them from office. Not only can’t the Court initiate impeachments, impeachment is unreviewable by the Court.
If there’s a servile Congress, it means voters can elect a law breaker as president. They are going to get a president who breaks the law.
And this is what’s happening. People voted for an abuser, a rapist, a felon, a conspiracy theorist who lies about the outcome of elections, lies that VPOTUS can and should overturn them, and even sent a mob to have that VPOTUS assassinated for refusing to comply with that illegal order. Then boasted he’d pardon all those criminals who were in his service. And despite all of this, people voted for him again.
It's so silly to blame the American people though, considering the vastly greater resources required to politically organize millions of people to counter the what a handful of people in the executive branch or a couple dozen people in the legislative branch can do with a flick of the wrist.
I vote but have little influence because I won't join a party and live in a state with closed primaries where the real selection process is carried out. If the remaining 30 closed states cared about civic engagement they'd switch to one of the established open primary models.
There is also the damage done by the Supreme Court ending the Voting Rights Act, had the act been in place in 2024, Kamalah would have won by a landslide. Millions of minority voters were targeted for disenfranchisement in 2024.
Not until the one-two punch of Obama not insisting on his SCOTUS nominee being pushed through, and RBG not retiring in time for him to have a second. You could put it as late as the DNC pushing Clinton as the 2016 presidential nominee and/or pushing for Trump to be the GOP nominee (with the rationale that he'd be easy to defeat).
Brian Thompson's death didn't seem to have any major consequences along those lines. Targeted assassinations seem to be kosher for avoiding crackdowns. If someone were to shoot Peter Thiel in the head, do we REALLY expect to see a sudden descent into oppressive authoritarianism? Or, as with Thompson, do most people say, "Eh, he had it coming," and keep it moving?
There is some compelling research from Princeton that for 90%+ of the American voting population, there opinions have zero impact on federal policy. It's all lobby driven money.
“The preferences of the average American appear to have only a miniscule, near-zero, statistically non-significant impact upon public policy.”
That’s not quite an accurate description of the Princeton Study. What the study actually shows, if I’m thinking of the correct one, is that for the most part average americans agree with the elite. The results of the study are driven by the fact that when elites and average americans disagree, the politicians tend to side with the elites.
A prime example of this is the immigration system. https://www.nytimes.com/2024/10/29/podcasts/the-daily/electi... (“On the Ballot: An Immigration System Most Americans Never Wanted”). Americans never asked to import tens of millions of people from the third world. When Congress reformed the immigration system in 1965, they promised that wouldn’t happen. But for decades, there’s been a coalition of pro-foreigner liberals and pro-cheap-labor conservatives that have facilitated massive immigration that average americans never asked for.
Trump, ironically, is a reaction to the very thing the Princeton study identified.
> is that for the most part average americans agree with the elite. The results of the study are driven by the fact that when elites and average americans disagree, the politicians tend to side with the elites.
The case when everyone agrees doesn’t tell you anything. It’s only when people disagree that you can find who has actual power and in this case the general public has effectively zero actual meaningful power day to day.
Systematic voter suppression plus gerrymandering etc may win you rigged elections, but ultimately voting isn’t about the system in place it’s avoidance unrest. We’re entering uncharted territory with how strongly people disagree with what the government is doing, which is where the general public actually has a say, namely by destroying the existing power structures rather than voting. It’s not even a question of insurrection, not having kids plus 60’s style dropping out at scale is ruinous.
Either one results in an immediate liquidity crisis/credit crunch and the delegitimizing/insolvency of most institutions. The beginning of the COVID pandemic was, essentially, this.
I would add in "general bank run", but I imagine that they just... wouldn't let that happen. Ironically, an emergency "injunction" against withdrawals.
> The case when everyone agrees doesn’t tell you anything. It’s only when people disagree that you can find who has actual power and in this case the general public has effectively zero actual meaningful power day to day.
It does tell you something. For example, if people mostly disagreed with the elites, but the elites got their way anyway, that would be a different situation.
> We’re entering uncharted territory with how strongly people disagree with what the government is doing
You’re overestimating how much people care about any of this stuff. I’m in a blue state and I hear almost nothing about it other than from some overly empathetic people on facebook. The “protests” recently were tepid and nearly all elderly liberals with nothing better to do.
A big chunk of the country really wants mass deportations, and for the most part, folks in the broader left don’t care much to oppose it.
The problem is that Dems are just culturally irrelevant. Most people don't care about issues, policy or the economy, they just want to cheer for a team and will justify everything their team does regardless of efficacy or outcome. Trump is the fun underdog team that everyone is talking about, the Dems are the boring party-pooper team we all love to hate. During covid, that boring became a source of needed stability, but after boring stewarded us through the crisis, nobody wanted to be associated with them again.
What people don’t want to admit is that this is exactly what more then half the people wanted. Because of the way the electoral college works as far as the President, gerrymandering with the House and 2 seats per state in the Senate, more people voting who disagree wouldn’t do any good.
You can’t shape your community to overcome the power of the federal government.
You’re really pulling at straws. Despite that Michelle Obama says, this is exactly “who we are” and who we have always been from slavery, to Jim Crow, to the dog whistles of Reagan to Willie Horton, to “Obama is a secret Muslim who wants to bring Sharia law”, to “the Haitians are eating our pets”, to the segregated proms that have happened in the rural south as late as the early 2000s.
If your contribution is to quote an old rap song and make a meta complaint about how people will react to you, then you're right - you don't deserve a positive reaction.
I did two things this year that had nontrivial effects on my state of mind.
1. I quit drinking for the time being. This had a modest but real effect on my mood and general wellbeing. It has pros and cons, but on balance it's a win for where I'm at and what I'm trying to do. I might choose differently in the future.
2. I installed GrapheneOS and built NixOS, from source, with fairly extreme choices about networking. This had a staggering effect on every aspect of how I think and feel: cutting the surveillance capitalism at the network level is like having a mass of rage and angst and blurry confusion taken out of my head. I will never, ever go back to that.
Its time for everyone to cut the cord. Get a Pixel, an 8a open box at best buy can be 200-300, install Lineage or Calyx or Graphene, and reclaim ownership of your brain.
By accepting the frame that it is federal judges and not the law that is blocking trump, it means that we are analyzing based on a frame of Trump vs Judges rather than Trump vs Law.
If you accept that framing, you accept many of that frames implications without even consciously processing them. This is one of the ways that consent is manufactured.
This ruling is stating that federal judges cannot rule that the law is blocking Trump. By accepting and adopting the frame that it is Trump vs Judges you implicitly accept that the law itself is a weapon rather than a boundary. It argues that the law is subjective, based on the judge ruling, rather than objective. It argues that there is no objective truth. To say it is judges and not the law that stops trump is to say that judges are agents of themselves and not agents of the law.
Agreeing that it is Judges vs Trump is implicitly agreeing that the law is arbitrary based on the judge ruling. Arbitrary government is authoritarian government.
The court’s decision to permit the executive to violate the constitution with respect to anyone who has not yet sued is an existential threat to the rule of law,” Jackson wrote. “Given the critical role of the judiciary in maintaining the rule of law … it is odd, to say the least, that the court would grant the executive’s wish to be freed from the constraints of law by prohibiting district courts from ordering complete compliance with the constitution.
This feels about as grim as the Citizens United dissent, which has been proven more and more true every day:
A democracy cannot function effectively when its constituent members believe laws are being bought and sold.
Legal settings (at least in the US), have always favored the wealthy who can find an army of lawyers to find loopholes.
I don’t agree with this, and hopefully what is currently happening raises awareness.
For example, the Patriot act post-9/11 famously gave law enforcement unconstitutional powers within 100 miles of a national border (I could be off, but this is how I remember it). If you really want to split hairs, the US has a LOT of borders if you include international airports.
It's wild that that the supreme court can just avoid ruling on the actual patently illegal and unconstitutional action that this administration is taking and instead solely focus on a procedural mechanism that is being used to stop that illegal action.
Oh but the high court of chancery in england! They didn't have them, so we can't either! Never mind that is 2025, we're a different nation, the federal government has a lot more power, and we have these injunctions for all of Biden's term and they had plenty of opportunity to stop them but said nothing when it was for protecting gun rights or denying women's healthcare.
2. Request an injunction type that's more appropriate
Given the number of babies being born every day it shouldn't be hard to do.
The thing is, the US doesn't issue citizenship papers. So I suppose they need to apply for an SSN and get denied (since the baby is a non-citizen), which will show immediate harm.
It also begs the question: if that baby is illegal can it be deported?
The thing here is that instead of officially denying it, the administration will just "coincidentally" slow-walk everything indefinitely, then illegally exile the baby to Sudan when ICE notices they don't have proof of citizenship.
Even a short delay in issuing an SSN may be harm, because it can be required for insurance purposes.
The administration isn't going to slow down processing for everyone, because actual citizens will have issues as well. That will be even more problematic.
One upshot may be that the law will be drastically different in the several circuits and (unless SCOTUS plans to handle everything on the emergency docket — as it did here) it will stay that way so long as SCOTUS lets the issues percolate through them (using them as laboratories, as Justice O'Connor was fond of saying).
My understanding is that the administration's position is that at least one of the parents needs to be a citizen or a legal resident.
If that's the case the answer to your question is: yes - together with the parents.
I suppose the recourse the Supreme Court is offering is that the baby (or more likely the parents) can sue when the citizenship is denied. At which point I'd just expect ICE to arrest and deport them when they show up to court for their lawsuit.
The debate is over what "subject to the jurisdiction thereof" means, it's misleading to simply announce it's guaranteed - the whole legal argument is over whether it is guaranteed.
as soon as you step foot in the USA you are subject to its jurisdiction. Just like if you go to Canada or Zimbabwe and break a law there. You would be laughed at with much gusto for breaking the law and telling them they don't have jurisdiction.
> it's misleading to simply announce it's guaranteed.
Let's not pretend all assertions are equally worth entertaining. Maybe it's "misleading" if you're Stephen Miller, but every court case where it's ever been heard and the legislative record at the time of adopting the 14th amendment show that citizenship is guaranteed. The Trump administration hasn't even raised it in appeals!
The author of the clause didn't think it applied to the children of aliens, so it doesn't seem crazy to me.
> Howard said that the clause "is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States."[30] He added that citizenship "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons"[30]—a comment which would later raise questions as to whether Congress had originally intended that U.S.-born children of foreign parents were to be included as citizens.[32]
"Textualism is a formalist theory in which the interpretation of the law is based exclusively on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law."
Legislative intent didn't save the Voting Rights Act, or the EPA.
> He added that citizenship "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons"
yes, exactly, if you're born to an ambassador in the US, you aren't subject to the jurisdiction.
Meanwhile:
> The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States. . . . Here is a simple declaration that a score or a few score of human beings born in the United States shall be regarded as citizens of the United States, entitled to civil rights, to the right of equal defense, to the right of equal punishment for crime with other citizens; and that such a provision should be deprecated by any person having or claiming to have a high humanity passes all my understanding and comprehension.
(the "declared that by law" is referring to the Civil Rights Act of 1866 that Howard used as the basis of the 14th amendment: "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States")
The Supreme Court explicitly rejected this reasoning in Plyler v. Doe (1982).
> This Court's prior cases... cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. Pp. 457 U. S. 210-216.
It’s curious you don’t link to a source even though you pasted something that contains references - I suspect you know that you are misinterpreting this willfully.
> The author of the clause didn't think it applied to the children of aliens, so it doesn't seem crazy to me.
>> Howard said that the clause "is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States."[30] He added that citizenship "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons"[30]—a comment which would later raise questions as to whether Congress had originally intended that U.S.-born children of foreign parents were to be included as citizens.[32]
I would assume that the child would be registered with the embassy that the parents are citizens of and there would be an application for a non-resident visa that would be fast tracked.
Greenland, Finland, Norway and Sweden all have no concept of Jus Soli and as far as I know, kids born to non-residents aren't being deported from the hospital.
>Moreover, there is literally no mechanism to prove that your parents are citizens.
> I would think a birth certificate would work....
You'd probably be wrong.
> Still, Immigration and Customs Enforcement kept Watson imprisoned as a deportable alien for nearly 3 1/2 years… Watson was correct all along: He was a U.S. citizen.
Bonus: They held him long enough the statute of limitations to sue expired.
> On Monday, an appeals court ruled that Watson, now 32, is not eligible for any of that money — because while his case is "disturbing," the statute of limitations actually expired while he was still in ICE custody without a lawyer.
> A US-born Marine veteran who served in Afghanistan had his US passport, a REAL ID driver’s license, a military ID card, and his US Marine Corps dog tags with him when he was arrested by police in Grand Rapids, Michigan, and turned over to Immigration and Customs Enforcement, which held him for three days before his lawyer demanded his release, according to the ACLU of Michigan.
"No right is safe in the new legal regime the court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship. The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit. Because I will not be complicit in so grave an attack on our system of law, I dissent."
Per the policy directive of https://www.whitehouse.gov/presidential-actions/2025/01/prot... citizenship has been taken away from anyone born from parents of targeted classes as of Jan 20, 2025 with a 30-day order for all executive departments and agencies to enact the policy.
Birthright citizenship was never enacted into law. It was a policy change by the State Department early in the 20th century. Since Trump controls the State Dept, has the power to make the change - Congress needs to deal with this.
It's been enacted into law at least 3 times, for difference classes of people.
1. The 14th Amendment to the Constitution, which covers everyone born here who is not the child of foreign diplomats or members of foreign armed forces stationed in the US.
2. The Indian Citizenship Act of 1924 which extended it to Native Americans who were living under tribal sovereignty.
3. The Immigration and Nationality Technical Corrections Act of 1994 extended it to children of US citizens who are born outside the US.
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Yes. It's in the constitution. Says it right there. Please explain how all our eyes deceive us.
You're relying on a 21st century layman's interpretation of legal language written in the 19th century. "[S]ubject to the jurisdiction thereof" means, in broad strokes, people who are here legally.
It does not mean that in broad strokes. It very specifically was meant to exclude folks such as children of diplomats, as decided in United States vs Wong Kim Ark 169 U.S. 649 (1898): https://www.law.cornell.edu/supremecourt/text/169/649
In short the phrase “and subject to the jurisdiction thereof” excludes three and only three groups of people:
1.Children born to foreign diplomats here on diplomatic business, who have diplomatic immunity to US Law
2.Children of members of an invading army that has occupied and controlled some part of US territory, born on that occupied area, who are obviously not subject to US Law (which has rarely happened in the US, although Guam was occupied during WWII, and parts of Alaska, and small parts of Maine during the War of 1812); and
3. Members of Native American tribes, subject to the jurisdiction of their tribal governments, who do not pay US taxes. (This was true when the 14th amendment was passed, but it no longer is. See section below on the act that changed it in 1924.)
Ironically the largest number of immigrants have been Latinos, who come from a fairly traditional and conservative culture. Ask any Mexican outside of the capital how they feel about abortion or trans women using women's bathrooms. These are not destined to be voters for the Democrats in the long term.
it seems like you’re not really understanding the “point” of the United States and what makes it different from other countries. That’s a shame.
Is america only for the white descendants, the former slave owning class? Perhaps former Nazis who fled Germany after the war? Who is america _really_ for? Why should Trump and the GOP get to decide who the undesirables are? This narrative of “giving away citizenship” quite literally makes zero sense.
Even as a child growing up it was clear to me (from teachers, textbooks, books, movies) that what makes america special is its ability to integrate immigrants from various backgrounds into 1 working nation. It’s a land of immigrants from the start.
The founding fathers didn’t “belong” here either. The land was stolen from native americans and other tribes that lived here. It’s in the DNA of the country. Some Americans need a big mirror and a heaping spoon of empathy IMO.
That's what I'm saying, it's one of the most simple Amendments in terms of understandability, yet people will completely ignore that somehow. If the 14th can be loop-holed, we might as well chuck all copies of the constitution in the Potomac and just declare Trump dictator
Citizen or immigration status does not matter, it depends if they are in a state with the case being litigated in federal court or if they live one of the twenty eight states that did not join the case. The Trump admin can make up whatever rule they want for the other twenty eight states. The Supreme Court just narrowed the specifity of injunctions to solely the litigants which opens up a huge can of worms in American legal system.
Now, the administration will keep doing illegal things, and every individual affected will have to file lawsuits to invalidate the illegal thing - after the damage is already done - because nothing is preventing the government from doing illegal things.
Federal judges' can't block EOs indefinitely. The WH can appeal to a circuit court, and so on up to the Supreme Court. But it does prevent the Admin from implementing an unconstitutional EO while they wait to be challenged in all states/districts.
I'm not particularly happy about nationwide injunctions, but this is much worse if you have a president who is not shy to "break the law now and fight it in court later". And now that Trump has shown the way, you can be sure future presidents will follow.
Another terrible outcome is that you then have federal orders applied differently from state to state (or more accurately, federal district to district). If you're in Nevada you won't get citizenship, but in Oregon you will.
This is right up there with the Presidential Immunity in terms of terrible decisions by this SCOTUS.
> If you're in Nevada you won't get citizenship, but in Oregon you will.
They're 100% coming for Obergfell and it's clear now how. They'll arrest a legal US citizen who has naturalized citizenship from illegal parents, born in a state that received an injunction but residing in a state that has not.
The representative of that person will say that they by being a citizen in the other state, they must be respected as a citizen in the other. They will cite Obergfell.
The SCOTUS will revoke their ruling on Obergfell and say, no, you are not a citizen just because there's an injunction in that other state.
The astute reader may notice that this is literally a replay of Dread Scott.
According to Justice Barrett a child born tomorrow in one district in the United States will not have U.S. citizenship but a child born in another one will. Will ICE deport the “noncitizens” born in one district while being prevented from doing so in districts that happen to have a judge that issues an injunction?
This ruling is idiotic even if you are generally opposed to nationwide injunctions. Birthright citizenship is a fundamental and clear cut right. Any attempts to overturn that must meet a high burden of justification. Temporarily suspending such attempts until the matter can firmly be decided causes the least amount of harm and should be allowed.
That's literally how the court system works. Each circuit has different rules until things are unified by the Supremes.
Just because you haven't paid attention doesn't mean it's idiotic. It allows the judicial system to see what real effects are before having to make a decision.
If someone is going to be deported they can file a case and stop the deportation. It mostly works that way now, and there's no real reason to change it.
Before today’s ruling nationwide injunctions were granted. Not sure how you can now claim “that’s how the court system works” when nationwide injunctions were fine before today’s ruling.
A President can now issue blatantly unconstitutional executive orders and the burden for obtaining relief will rest on each individual person (or small class of people). Prior to today rules/laws that caused harm could be temporarily prevented from being enforced while the matter is litigated. Now parties that will be harmed are much more likely to be harmed before the matter is resolved. This is a sad state of affairs.
If the next President issues an order confiscating guns from people the champions of today’s ruling will want nationwide relief while the matter is litigated.
If someone is going to be deported they can file a case and stop the deportation.
Also, just because you did pay attention doesn’t mean it’s not idiotic. The patchwork of interpretations and requirement to sue is a guarantee of unequal treatment under the law, which is exactly what autocrats want.
Comparatively, how vulnerable is America to an executive gone wild compared to its peer countries?
The US has a three-tiered judiciary that moves slowly, Congress has a very high threshold for impeachment and removal (and a slow process), and the order of succession is basically locked in for four years. The people are not easily moved to action, and it's doubtful how much they could realistically accomplish.
Universal injunctions were a Band-Aid fix, one of the very few avenues our system permitted for there to be any rapid institutional response to illegal and immediately harmful policy. But that is no more.
As an exercise, what happens if a president issues a "throw enemies in the woodchipper" executive order? How many hours or days would it take the other branches of government to legally nullify the order? (What they can do in practice is another question.)
It's an extreme example, but a future admin could use the current admin's reasoning to unilaterally confiscate guns and force you to be a plaintiff in federal court to get relief.
>Comparatively, how vulnerable is America to an executive gone wild compared to its peer countries?
In the USA, some judges are elected, hearings can be televised, fragmented laws nationwide, court filings often public.
In UK the opening of the judicial year happens in a church service (i.e. biblical punishment is common), many judges are freemasons,court filings not public, courts control what gets to media, the court below supreme court can, and routinely do, block cases from getting to supreme court. And More. In short UK judiciary is institutionally corrupt with the elected and unelected the one and the same but press won't say it.
I feel your points are valid but don't really express enough detail. The supreme court in the UK though named the same doesn't really hold anywhere near as much power for the following reasons:
1) There is no written constitution, the supreme court in the UK is only there to interpret existing laws as written not to interpret differences between "tiers" of law
2) The UK has a system that can pass new laws, generally by simple majority so any decision rendered about existing law can be made obsolete generally fairly quickly (In contrast to the current intransigence of the current US system where it is hard to pass primary legislation and virtually impossible to modify the constitution)
3) the court was only established in 2009, and evidently we haven't done much to empower it
A better comparison country might be places like Canada or Australia who do have a written (and harder to modify) constitution.
The UK is all about 'appearencea' hence why they came up with 'justice must not just be done but be seen to be done'
With ref to your point 1 and 2 , they are not needed. HRA 1998 covers that.
Point 3 - the supreme court was previously within the House of Lords and the one day they got their own building.
The primary and secondary legislation, and leading case law is fine in the UK. Its just that the Judges know what are really there for and routinely falsify the outcomes.
No one sees the case files, no one sees the transcript, only the judges judgement is published and that we all have to pretend is never anything other than perfect...
My understanding is that your characterization is true of the Articles of Confederation, but not true of the Constitution. The federal government's power is delegated from the people.
At the top of the Articles, it's pretty clear that the delegates of the states have come together to establish a league of states. At the top of the Constitution, it's explicitly stated that "We the People […] do ordain and establish."
Individuals can't (practically) secede. And it is done via the states, for example the state governments choose senators. Right now this is done via popularity contests in every state but there's nothing in the constitution or federal law requiring that.
Yeah that's completely meaningless as far as the possibility of secession is concerned. All it means is that if you secede and reenter then all the legislation you did as a separate state is void which is completely reasonable.
The US constitution is outdated. There is a whole host of historical experience around totalitarian subversion of democratic constitutions of similar design to the US one. That experience has never been used to update the way the US works. In other words, the manual to overturn the system from the inside has been out there for a long time.
The three branch system allows any two to gang up on the third. Parliamentary systems don't have any checks like this and trend towards unitary authoritarians.
In modern parliamentary systems, political leaders are not in direct control of the executive branch. Politicians may issue priorities and guidance, but career civil servants run the show. Department heads serve fixed terms that are independent of the election cycle, and they cannot be removed without a criminal conviction. If politicians want major changes, they can change the law. And in many countries, the constitutionality of proposed legislation must be established in advance.
The descent to authoritarianism usually begins with a party gaining enough power that it can override the checks and balances. Which often involves rewriting the constitution.
No. The three branch system allows any two to gang up legally against the third. But, as we are seeing, all the actual power relies with the executive. They can simply ignore the actions of the other two.
The most depressing thing COVID made clear is even in the "land of the free and home of the brave" people will just do what they're told by the authorities.
What if those people consider what they're being told by the authorities, understand that it makes sense, and choose to take that action because it's important for the public good?
Why are people who prioritized public health during a temporary pandemic "sheep", but the President's supporters who demonstrate exceptionally cult-like behavior, "free thinking individuals"?
> Why are people who prioritized public health during a temporary pandemic "sheep", but the President's supporters who demonstrate exceptionally cult-like behavior, "free thinking individuals"?
In that case there seemed to be bipartisan consensus—the liberals and civil rights fanatics seemed to largely agree with President Trump's shutdown policies.
Decisions by courts are often enjoined based on a balancing test as well as the likelihood that the issue will succeed or not.
So, deporting people to a third-country (another decision SCOTUS allowed this term) has a simple balancing test: stay here and be fine or possibly deport a Chinese citizen to El Salvador, which could cause incredible harm. So even ignoring th elikelihood of how the issue is decided, the balancing test favors enjoining third-party deportation.
So in this case, we had a universal injunction against an executive order removing birthright citizenship. This fails on two fronts:
1. As justices noted, it's highly unlikely that the order will be held up as constitutional. There is case law on this. The language of the 14th amendment is clear. The exact issue was discussed at the time. This has no hope in a non-corrupt court of succeeding.
2. Given other decisions, bona fide US citizens could be deported to CECOT and detained indefinitely with no due process. So it should be stayed because of the potential harm.
What SCOTUS did today was say the order revoking birthright citizenship was unlikely to succeed but it allows the administration to proceed anyway while hte issue is litigated in the courts, which could take years.
That's how corrupt this court is.
People have been fed this propaganda that Supreme Court justices are apolitical legal scholars who come down from their tower to issue judgements and keep things in check. It couldn't be further from the truth. Supreme Court justices are political appointees that dress up their political positions in legalese.
Example 1: this court invented the "major questions doctrine" whereby the court decides a matter is large enough that the court gets to override both the administrative and legislative branches.
Example 2: they also invented the "historical traditions doctrine", which is used selectively. For example, abortion was completely legal 200+ years ago. Ben Franklin even published at-home instructions on how to perform an abortion [1].
Example 3: in the wake of the Civil War there was huge violence not from the freed slaves but from white people towards former slaves, most notably with the Colfax massacre. The Supreme Court went on a white supremacist tear during Reconstruction, notably gutting the federal government's ability to prosecute hate crimes like Colfax [2].
Example 4: The Tiney court in the 1850s made what is perhaps one of the worst decisions ever made (ie Dred Scott), arguing from a legal and constitutional perspective that black people weren't "people".
Example 5: the Roberts court decided that moeny equals speech, gutting any legislation around campaign spending, which is a big part of how we got here.
Example 6: the presidential immunity decision will go down in history as one of the 10 or even 5 worst decisions ever made. It completely invented far-reaching immunity that essentially made the president a king, in a country that was founded on the very idea of rejecting monarchs.
Example 7: in 1984, the Supreme Court decided that in any areas of ambiguity in legislation, trial courts should defer to the agency empowered by Congress to enforce that legislation. This is the so-called "Chevron deference".
More than 40 years passed through 7 presidents (4 Republican and 3 Democrat) where both parties at different times controlled Congress. Congress declined to legislate away Chevron deference despite having ample opportunity to do so. Moreso, they intentionally wrote legislation with Chevron deference in mind yet this court decided to reverse Chevron. Yet on other cases, the court has deferred to Congress's inaction as intent.
Fun fact: Chevron v Natural Resources Defense Council was previously known as Natural Resources Defense Council v. Gorsuch [3]. That's not a coincidence. The suit involved Reagan's head of dthe EPA, Anna Gorsuch, mother of current Supreme Court justice Neil Gorsuch, who was humiliated and ultimately fired from the EPA while trying to destroy it from within.
This is essentially an ad hoc Constitutional Convention being carried out by 6 people, 3 of whom were hand-picked by the sitting president and another of whom is arguably the most corrupt Supreme Court Justice in our history. Nothing is off the table. Anyone who thinks the Constitution can protect them should think again.
I'm talking more broadly about this court and its decisions, of which this decision is one of many that are obliterating precedent and directly empowering the sitting president.
Want to ban nationwide injunctions against student debt relief? Sure, I can agree with that. Want to ban nationwide injunctions against ACA enforcement or some other similar type thing? I have no problem either way.
Banning a nationwide injunction against birthright citizenship is inherently different. It’s a fundamental constitutional right we are talking about. Banning birthright citizenship should not be allowed to be enforced until SCOTIS decides the matter.
So it's better to have an ad hoc Constitutional Convention being carried out by any random activist judge appointed by any of the previous political opposition? People sure are high and mighty when their opponent subverts the constitution, but are ridiculously silent when their own party burns the constitution.
No. It’s better to have a court that does its job. Reasonable people can accept a decision even if they disagree if the reasoning is not solid than “lol we can so suck it up”.
And yes, anything close to a majority nominated by the sitting president is a constitutional crisis, in a regime where one is supposed to check the other.
The courts only have so much power because congress is dysfunctional and kicks every issue to the courts so they don't have to be accountable to voters.
Well yeah. That is a problem as well. The whole US government is a steaming mess right now, just because we cannot mention everything that’s wrong every post does not mean that we should not discuss any specific example.
Yes, congress also abdicated its power. At the moment you have an executive branch ignoring law, precedent, and court orders, the legislative branch that is subservient to the executive and a judiciary in a state of civil war. None of that is right. None of the top-level institutions are working as they should.
The Supreme Court has literally been usurping power from Congress by refusing to read the laws they've passed as written, kicking them back or neutering them knowing that Congress is locked down.
And in this case they're refusing to do their actual job, which is defending the constitutional foundation of our country.
To clarify, do you think you're uniquely better at this than most / the folks here, or is that not an intended implication? Do you further think this phenomena is specific to here, or was that not an intended implication? Just trying to figure out what your scope is.
The "i like bagels -> oh so you hate croissants, huh?" framing strikes again.
This is what things going to shit looks like. You may be completely justified in acting the way you are, it just so happens that that's of very little help. Spiraling is pretty tough to prevent at that point.
And yes, very obviously people have an easier time understanding things when they're better aligned with their thinking.
Unfortunately, the US seems to be rapidly sliding into a combination of effectively/mostly one-party rule, oligarchy, corporatocracy, and to a lesser but visible extent, theocracy.
With the US Supreme Court strongly tilted toward all four, its an extremely difficult hole to climb out of.
I don't see a dictatorship (anytime soon). Not out of any abundance of optimism, but simply that all four of those constituencies and the Supreme Court's dominant wing itself, are highly aligned with each other, and would all lose out if it goes that far.
You need to actually read the decision. There's plenty of legal reasoning. You may not agree with it, but your opinion is irrelevant.
One thing they didn't talk about was structural: the court system is split up into X circuits, and each circuit is independent. Normally each circuit uses rulings from other circuits as a basis for its judgements, but circuits are pretty independent from each other. The Supremes weigh in when the circuits conflicted with each other.
The national injunctions issued by the lower court allowed the lowest level court to have more authority than an appeals court. An appellate court's decision was only binding on its circuit. Why would a lower court have more authority than an appeals court? That makes no sense.
That's outside of all the reasoning the court used to stop this practice.
That said, if an affected individual brought a suit the may be able to get an injunction, since the court ruled that universal injunctions were inappropriate.
>Why would a lower court have more authority than an appeals court? That makes no sense.
An appellate court considers the decisions of the courts below it, so it makes sense its actions would be restricted to those courts. What makes no sense is the newly possible situation in which an action violates the U.S. Constitution in one district but not another.
Distinctly no, this is in the dissent. That requires an appeal from the government and for SCOTUS to pick up the case in a reasonable time.
Now the government can choose to "lose" in some places and let the injunction stand. Then, in all other locations in the country, the constitution of the United States is quite literally different in perpetuity.
And it's not even by-locality, sans cases brought by a state government. SCOTUS has defined injunctions as by-litigant. So now two babies born next to each other in the same hospital to visa parents can have different naturalization statuses based on if those parents had sued in the right district court or not.
So what do you want 2A supporters to do exactly? Start shooting government officials? Because I guarantee you would call them nut job terrorists if they did.
Yeah it's as if having your citizens armed is a bad idea, because there's very little chance it could be actually useful in a real life scenario while the society slowly slides into tyranny.
To be fair, that is exactly what 2A supporters have claimed they're willing, ready and able to do, and what the 2A is intended to allow. Every single time there's a mass shooting or other such event, they're the first to start lecturing people on how that violence a price worth paying to have an armed populace around keeping the government in check, and that the threat of popular violence is the only thing keeping the government in check. An armed society is a civil society, and what not.
So yeah. Do a "water the tree of liberty with the blood of tyrants," already. The gun people were more than willing when they thought a Democrat was stealing their votes or Bill Gates was putting microchips in vaccines.
> In all of these 6-3 cases where Sotomayor writes the dissent, she writes entirely for the press and reserves only the last few pages to engage in anything like the legal arguments. Her effect in these cases is profoundly pathological on the public discourse.
That's one interpretation. On the other hand, I can understand her reaction at the conservative majority's repeated disrespect for stare decisis and existing case law, their tendency to craft non-textual and ahistorical reading of the Constitution to suit their short-term political goals, and their seeming bottomless capacity for subservience and deference to an obviously unlawful executive branch that has repeatedly evinced contempt for the judicial.
So, given the extraordinary depths that the majority is sinking to, her dramatic dissents are more justified than you think.
I'm unclear on which cases you're referring to. Roe v. Wade is the closest I can think of -- its not clear to me that this being handled by changes to state constitutions hasn't been a net benefit to the robustness of abortion law in the US. Or perhaps you mean presidental immunity.
However, either way, its very hard to defend the view that the US constitution entails a democratic limit on abortion.
When the SC rules that something is required or forbidden by the constitution, they mean that it is beyond the power of congress to permit or prescribe it; it is is completely outside of democratic control.
The majority of the court today have a judicial philosophy which was common to the court for most of its history whereby one would only, in extremely certain cases, rule an issue entirely outside of the democratic process -- ie., decided entirely by the constitution alone, as interpreted by 9 people.
It isnt the job of the SC to make america moral, or require the whole of the US to follow how you wish things to be -- their constitutional role is to prevent the operation of democracy in extremely clear cut cases.
As for presidential immunity -- all constitutional centres of power (congress, the courts, the president) have immunities in the exercise of that power. These are required to enable them to function as balances of power against the other. Eg., if the president could arrest a judge for a bad judgement, the courts would not balance the executive.
The court confirmed only that the president has no more or less the necessary kind of immunity that each branch has -- and this is a clear requirement of the balance of power system set up in the constitution.
They left open, very widely, grounds on which a president acting outside of the duties of the office, could be prosecuted. And they clearly believed trump could be on at least some of those grounds.
> I'm unclear on which cases you're referring to. Roe v. Wade is the closest I can think of
I wonder if you misread my comment or just aren't aware of recent court history. The current conservative majority did not decide Roe, which is a case from 1973.
An example of a non-textual reading of the Constitution is last year's Trump v US case, wherein the conservative majority decided, apparently without any basis in law or Constitution, that the President is entitled to presumed criminal immunity for all official acts. You seem to have completely misinterpreted what this case was about: it's not about charging the president for "bad presidenting", it's about holding him accountable for criminal acts. Judges who violates criminal law are not exempt and enjoy no immunity.
Or how about Snyder v US, wherein SCOTUS decided to neuter the federal statute on official corruption, because their reading of "bribe" required money to be proffered before and not after the corresponding official act.
Or how about today's stay of the injunction against enforcement of the wildly unconstitutional attempt to void the 14th amendment, essentially giving the president the right to violate constitutional civil rates as long as he does it in states that support him against people who can't afford effective legal representation.
Just as the president cannot hold law-makers or judges liable for their actions in law-making, likewise, can neither branch criminalise or prosecute actions of the president which belong to the president under their constitutional authority. It is an absolutely obvious ruling, as obvious as judicial immunity -- the constitution gives the president powers that congress nor courts can criminalise or constrain. That is the only impact of that ruling. It had nothing to do with criminal actions by trump, indeed the ruling clearly gave a pathway to criminal review of trump's actions.
Today's result also does not prevent state-wide injunctions, indeed, that's what they court has basically suggested. And K's concurrence lists the innumerable number of ways the executive can be universally constrained.
Your entire understanding of the SC here, under trump, has been completely distorted by emotionally-disregulating media narratives designed for those purposes. This is not a pro-Trump court.
> federal statute
Congress can just change the statue. As it does a very large number of times every year.
> Your entire understanding of the SC here, under trump, has been completely distorted by emotionally-disregulating media narratives designed for those purposes.
Ah yes, the classic misogynist attack: I can't possibly understand the law because I'm too emotional. If only I were logical like you.
> Today's result also does not prevent state-wide injunctions, indeed, that's what they court has basically suggested.
Yes, state-level injunctions are allowed. All that this means is that different citizens will get different Constitutional rights depending on which state they live in. That's not how the Constitution is supposed to work.
> Congress can just change the statue. As it does a very large number of times every year.
What's the point of the changing the statute when SCOTUS insists on interpreting statutes in a way contrary to their text?
> That is the only impact of that ruling. It had nothing to do with criminal actions by trump.
It absolutely has to do with criminal actions. Notably, any official act cannot even be used as evidence in prosecuting a criminal act against the president. So if the president conspires with the AG to illegally prosecute a political enemy, that is unprosecutable. Since anything the president does is potentially an official act, this means that there in no way to hold the president responsible for his actions, which is the opposite of the intent of the Constitution, which provides for "checks and balances." Did you fail your high school civics class?
The Framers know how to provide immunity, as they do in the Speech and Debate clause. You may have a reason for supporting presidential immunity, but you can't deny that there is no basis for it in the Constitution. SCOTUS made it up, precisely at a time when their favorite president was found in flagrant violation.
>and the supreme court itself reserves the right to make universal injunctions on iterim orders/policies until they decide the case on a full hearing (at which time they can invalide the law/order)
Doesn't that require an appeal? Or are you saying they'd go put a policy or law on hold even if there wasn't an open case after a lower judge ruled against them and the government chose not to appeal so as to not risk losing more broadly.
Seems like the takeaway here for any would-be executive-overreachers is "lose a couple cases affecting a handful of plaintiffs and ignore those loses."
IIRC the general trend for getting a class certified for a class action is also in the "make it harder to do" direction.
Not necessarily, though I'd guess what Kavanaugh imagines is that many states will obtain state-wide injunctions that make executing an order like this practically impossible (indeed, that is what the SC has said should happen next) -- and, imv, he believes there is a nation-wide class in-play and this will go to a nation-wide class action. At which time the executive will be entirely boxed in. Given this, the executive has to ask the SC to stay some of these, or grant cert., or there's practically no EO in play.
It's important to remember here that states are relevant parties to these suits against the federal government, and there are enough of them to enjoin any practical excerise of executive action.
The SC has basically asserted that only it will, temporarily or permanently, review those cases where there is a federal-level split on these issues requiring a universal solution.
I have a feeling he's also hinting that the SC will, in light of this, look at how it handles temporary orders -- he has, at least said, it is now obligated to be very proactive in these areas and take on all such temporary requests to enjoin the executive
There's also the APA question, I don't fully understand judicial review in these cases -- but iirc, the APA grants courts to order the executive to stop (or to take) action on such policies. So when the EO has a "policy implementation" people can bring suits under the APA to enjoin, which is equivalent to a universal injunction.
In that case than this change seems entirely pointless. Obviously there are plenty of states that are highly partisan in either direction. So it seems like the judicious thing to do would've been like "the status quo is fine, rulings that higher courts think are egregious can still be stayed pending appeal."
It's hard to believe it's so innocuous given that (a) it is such a new approach to the issue for a not-new feature of US law and (b) the broader literature being pushed by the people pushing for this change.
Instead it feels like the song and dance around how some Senators would try to get SC justice nominees to say they wouldn't overturn Roe v Wade - distractive performance that's utterly non-binding and an obvious smokescreen.
The SC was asked to consider a relatively narrow question of what the limits on equitable remindies in the discrict courts are. In a significant majority of cases they've exceeded their clear authority on anything like a plausible reading of what non-constitutional courts are supposed to do.
Ironically, imv, I think in this case, they didnt. This was, imv, a case where a universal injunctions was actually within the power of the disctict court -- because (and here Sotomayor is correct) the states were being obligated to take on burdens that "crossed state lines" and a complete remedy to relieve them of these burdens actually requires a universal injunction. So, imv, under the history of what equitable remedies are supposed to do, this would be one rare case where the action of the courts could be legally defensible.
However, the SC was extremely fed up with district courts sending inumerable number of cases their way -- trigger happy judges at the distict level deciding they're going to rule for the whole US in a federal system. So, by this point, they've tried many times to stop it, and it hadnt worked.
Here all they said is that you can have UIs only where congress makes explicit that courts have this power. They have done something kinda similar in the APA (creating judicial review of exec action), and can do again here (eg., a democratic congress could give the power in immigration cases; I think its plausible something like this happens). They also themselves retain the right to make such orders.
So they have only really moved where in the system such action is taken, retaining district court's rights to still -- very broadly -- give quite wide injunctions. And congress still has the power to empower the courts (though, as per usual, Thomas indicates he's on crazy pills and implies he would prevent congress from doing that -- that's not a serious outcome though).
Given the problems they faced with district courts, something had to give. They were persuaded, plausibly correctly, that there are enough avenues to prevent this executive overreach without empowering the lowest rung of judges to rule for the whole of the US.
> Ironically, imv, I think in this case, they didnt. This was, imv, a case where a universal injunctions was actually within the power of the disctict court -- because (and here Sotomayor is correct) the states were being obligated to take on burdens that "crossed state lines" and a complete remedy to relieve them of these burdens actually requires a universal injunction. So, imv, under the history of what equitable remedies are supposed to do, this would be one rare case where the action of the courts could be legally defensible.
> However, the SC was extremely fed up with district courts sending inumerable number of cases their way -- trigger happy judges at the distict level deciding they're going to rule for the whole US in a federal system. So, by this point, they've tried many times to stop it, and it hadnt worked.
...so you were lauding a "Some of you may die, but it's a sacrifice I am willing to make" opinion?
We're talking citizenship here, in a time when the executive branch is deporting people as hastily as possible to prevent judicial review. But the supreme court was "extremely fed up" and took a stand...against universal injunctions. How "non-hysterical" of them.
This judgement has nothing to do with citizenship, and there's yet no reason to suppose citizenship is under threat from the EO as a result of this judgment.
Many states will have state-wide injunctions, and there will be a nation-wide class action suit to go thru the courts, and if there's any executive policy on this, it will receive judicial review.
The SC will also, whilst this is going on, intervene an basically issue a universal injunction as soon as the executive takes any issue whatsoever with this process.
> This judgement has nothing to do with citizenship, and there's yet no reason to suppose citizenship is under threat from the EO as a result of this judgment.
The executive order literally orders agencies not to recognize citizenship for children born in the US after February 19th to parents that aren't citizens or permanent residents. That can now proceed if you weren't personally covered by the three existing injunctions, so not sure what you're talking about.
> because (and here Sotomayor is correct) the states were being obligated to take on burdens that "crossed state lines" and a complete remedy to relieve them of these burdens actually requires a universal injunction
> However, the SC was extremely fed up with district courts sending inumerable number of cases their way
Well hold on then.
So you think the Court was wrong in this case? That they were just on tilt? Because if this case is a case for a universal injunction then does the executive have standing to ask about that issue here?
But if Sotomayor is correct on the relevance of a universal injunction here, then why is your "non-hysterical reaction" defending the decision instead?
---
I also find it hard to agree with "judges are creating problems" vs "an increasingly aggresive executive is creating problems." The legislature hasn't been able to do much for a long time because the splits are so close, so presidents try to do more directly. Is enabling that despite how closely split the legislature is ANYTHING like in line with how the US government system is supposed to work?
Cause really, awww, they have more cases than they used to? Welcome to the computer driven future, it sucks for all of us, don't make us suffer because you're tired of it.
Imagine you're a SC judge in this case, and you have to craft a judgement which allows universal injunctions in incredibly narrow and highly specific cases, whilst ruling out almost all of them. And that the area of law you're dealing with is a puddle of mud (equity).
You can either try to do this and roll the dice again on letting district courts interpret this judgement, or just say, basically no -- if you want to do this you have to come to us (or go via one of the other mechanisms). Given there are ~25 recent cases of this in total, its not a very significant number -- but the effects are extremely significant.
They chose the lesser of two evils, and in this lesser world, basically everything is still fine. You can still get the right outcomes.
This is the actual job of the court. There is no right answer. There is only what judgement they can write and what effects it will have, and whether those are the most consistent with the spirit of the constutional order (or statutory order) that has been setup.
its very common for them to rule, "in cases of doubt, just get congress to pass a law allowing this to happen"
They very often actually do amend laws due to SC rulings. Many laws are passed every year, and its very common to see amendements explicitly reply to tell the SC to undo its actions in cases where they've asked congress to be clear.
Just because I think there's a read of "complete equitable remedy" in this case which plausibly allows a district court to issue a UI, does not mean that the SC wasn't right to set a standard which precludes it. Or that asking congress to make this possible isn't the right position for the court to take.
You have to remember that congress is the democratic legislative body, not the courts. Having district courts intrude on US-wide implementation of congress' laws (via the executive) should really require congress to authorise that.
And in any case, they have in the APA -- and the SC can still do it.
> Imagine you're a SC judge in this case, and you have to craft a judgement which allows universal injunctions in incredibly narrow and highly specific cases, whilst ruling out almost all of them. And that the area of law you're dealing with is a puddle of mud (equity).
You can of course, also not take up the issue on this case. I can't find the article offhand, but I believe Steve Vladeck made this point that the SC has passed over a number of egregiously bad universal injunctions, handling them entirely on the shadow docket, and decided to grant full cert and a hearing on this case.
You can maybe argue that that's good in the sense that they're making a strong stand that even in the best example this is disallowed, which is clearer precedent. But also they could have picked a "better" case in the sense of it being a clearer misuse, and used that as the vehicle for the same ruling. Using a Kacsmaryk injunction for the same ruling sends a very different message than this case.
I think there's a clear 7-2 against this EO when its content will be considered. I do not think a lot of them enjoyed making this their stand against UIs; and you can hear in orals robert's frustration with the situation and various desires across the panel to find some way to thread the needle. I dont think any of the 7 trusted the goverment as far as they could throw them. This isn't a pro-trump court, nor one that believes any of this executive behaviour is credible. I think they were not at all pleased with how the case had been brought to them.
It's clear K's concurrence was written as a playbook for how to get to "the right outcome" in this case, and it will be followed. I suspect if that playbook wasnt available, they would have had a much harder time with getting to a judgement.
I don't live in the US, but can't the winning party still appeal? Here in Sweden it is not uncommon that both parties appeal important cases, sometimes with the explicit goal of getting the highest court to make a judgement. Some cases are just more important to get the highest courts judgement, especially those related to government, than holding onto a win from a lower court.
Sure. The problem is all the other people left vulnerable in the meantime, since it can take a long time for the appeals process to complete.
These injunctions are used in cases where the judge believes "irreparable harm" harm is imminent for a large group of people. It is not realistic to expect every person (or at least one person in every state/district) to hire a lawyer and argue the case to protect themselves.
The well has been poisoned by Sotomayor's dissent, and the headlines which come form it. I'm rebuffing a framing that many have taken who haven't listened to the oral arguments, havent read the judgement, and so on.
I don't take people who engage in this emotionally elevated reaction to the issue to have a different opinion, I take them to have no opinion at all -- because their reaction isn't an evaluation of the judgement.
All i'm saying is, "before you go ham on emotionally disregulation based on media reports, go read a few pages of the actual judgement
> I don't take people who engage in this emotionally elevated reaction to the issue to have a different opinion, I take them to have no opinion at all -- because their reaction isn't an evaluation of the judgement.
It's just civil rights and citizenship. Why can't they all be as detached and unimpacted as rich old guy Kavanaugh?
Justice Jackson's dissent is honestly one of the most embarrassing things I've read from the Court and I've been reading most every opinion for years now. Heavy on the pathos, completely devoid of cogent legal theory. Kinda reminds me of Breyer, who, charitably, had an esoteric style.
Kavanaugh is good to read on any topic - his writing is clear and often easily understandable by the layman. Gorsuch is an excellent writer as well. Those two are imo the best writers currently among the justices.
They're both excellent judges in non-ideological cases, and many of Sotomayor's majority judgements read well and she's clearly very on-the-ball in orals. It's a shame in these cases -- I think Sotomayor is more of an ideologue than Thomas.
Yeah you can certainly criticize Thomas's legal theories, but his interpretation is logically consistent and he sticks to it even to the point of frequently solo dissenting.
It's important to read his stuff too because it seems to gain more acceptance as time goes on.
Your points on Sotomayor are well taken, her dissents are often way over the top. However I'm starting to think Justice Jackson is potentially worse when it comes to histrionics
> If you have any interest in taking a non-hysterical reaction to the ruling
"The court’s decision to permit the executive to violate the constitution with respect to anyone who has not yet sued is an existential threat to the rule of law,” Jackson wrote. “Given the critical role of the judiciary in maintaining the rule of law … it is odd, to say the least, that the court would grant the executive’s wish to be freed from the constraints of law by prohibiting district courts from ordering complete compliance with the constitution.”
Reacting to a (female) judge assessing that there is an existential threat to the rule of law, in an administration that has done everything to break through the boundaries of law and openly violates it is hardly "hysteria", especially when there is a track record of robbing people of due process, which is literally and precisely the executive asserting its supremacy over the judiciary by robbing it of the opportunity to make a ruling.
Yes, that's why I didnt recommend reading Jackson's dissent -- because its design ed to create emotional disregulation in readers and whip up a political storm.
If you read K's concurrence, you'll wonder why there is any issue at all. Since, roughly, there isn't one -- there are a very large number of ways this EO can be challenged universally without requiring UIs
> Her effect in these cases is profoundly pathological on the public discourse.
I love this. “Everybody that disagrees with me is hysterical and it is actually the dissent’s fault” is a fantastic take. It is literally impossible to simultaneously disagree with you about this and also be of sound mind. I feel like you could have worded this a tad differently, “I am very smart. Possibly the smartest, and the sanest. I am superlatively smart and sane, and my brain is very good.” would have been more succinct.
> After reading her dissent one could not imagine anything Kavanaugh said would even be possible, yet he writes a concurrence with the majority.
What? Seems like you're working backwards from wanting to spout about Sotomayor. This is exactly the gamesmanship she pointed out the majority allowed the Trump administration to play with.
Look at all these fun, lengthy, expensive legal remedies you can attempt over the next few years to protect your basic rights while the executive branch enacts plainly unconstitutional policies. Someone count the number of nationwide injunctions during the last four years where the majority could have stepped in to swat down the trend but didn't, but instead chose this one.
Judges were using injunctions to avoid putting their name behind a ruling.
They can absolutely still strike down a law or executive branch policy.
This forces judges to actually do their job., instead of a nationwide injunction while they decide if they want to do their job later.
It doesn’t actually alter some fabric of our democracy or checks and balances, because the judges had already gone beyond what the constitution and congress prescribed.
Every issue that any partisan has with this country is because one branch isn’t doing their job.
The disruptive aspect of this - with concern to the birthright case that hasnt been ruled on yet - is just another example of this. Judges not doing their job.
> Every issue that any partisan has with this country is because one branch isn’t doing their job.
It's impractical to rule on a subject before allowing parties to formulate coherent prepared arguments. Ruling on circumstantial evidence is a temporary stop, leaving the ruling up to an appellate which will invalidate it due to it being founded on circumstantial evidence. The injunctions were the practical way to allows all parties to formulate their case and make a legal reasoning for a ruling. Written law has to be incremental and narrow for interpretation. Otherwise it's an interpretive dance free for all in every case.
You have repeatedly implied that the jobs of Judges are something other than what you they are. Ofc you don't think they are doing what you think they should be. That's inconsequential.
A judge's job is to *judge*. They have basically zero ability to gather evidence, that is the responsibility for the parties to the case.
Would you have them issue a ruling before being presented with evidence? That makes no sense. But at the same time harm can come from not issuing a ruling. Thus we have injunctions--if a judge feels a case is likely to prevail they can issue an injunction prohibiting actions which inflict harm that can't be remedied by the resolution of the case.
> Judges were using injunctions to avoid putting their name behind a ruling.
What? That makes no sense. You can lookup which court and judge (or panel of judges) issued the injunctions. I do not understand why this non-existent anonymity would motivate a judge to issue an injunction.
> They can still strike down a law or executive branch policy.
Federal courts will only look at cases if there is a party with standing who engages in a lawsuit. If someone is being deported without due process, it will be hard for them to bring suit.
> This forces judges to actually do their job., instead of a nationwide injunction while they decide if they want to do their job later.
In general there are two reasons why these temporary restraining orders which have been issued. The first being that not doing so would cause irrevocable (or ridiculously difficult to revoke) harm (e.g., deporting people to a foreign jail). The second is that the TRO is used to stop something which seems illegal on its face (e.g. deporting people to countries from which they have never been).
> It doesn’t actually alter some fabric of our democracy or checks and balances, because the judges had already gone beyond what the constitution and congress prescribed.
It does alter the power dynamic of our democracy. Now, the executive branch can repeatedly perform illegal acts and only needs to stop its behavior in cases which have been decided. This checks and balances isn’t about stopping each other branch in a vacuum, the intent is to stop the government from overreaching on its citizenry. By crippling all of the lower courts, the Supreme Court has created a bureaucratic bottleneck for itself, allowing the executive branch to effectively DDoS the judicial system with case after case.
> The disruptive aspect of this - with concern to the birthright case that hasnt been ruled on yet - is just another example of this. Judges not doing their job.
No, it was the judge telling the executive branch that the executive branch must recognize the citizenship of children born on US soil. Instead of actually appealing the TRO on grounds of the legality of their actions, the executive branch has decided to complain about the legality of a court telling the executive branch to stop.
Who is supposed to tell the executive branch to stop doing something illegal, congress? Part of the point of the executive branch was to allow for some expedience, congress is slow. A judge is in a perfect position to tell the executive branch to stop, they don’t need to wait on committee and are not beholden to the president. Without the ability, the executive branch can quite literally do whatever the president wants.
this seems more emphatic than convincing.. Can you rewrite this so that it addresses the legal principles at hand, instead of repeating "judges dont do their jobs" ?
It’s ridiculous that any President (whether he’s from your favorite team or not) has to appease 300+ judges is ridiculous. There will always be biased judges who will only rule to obstruct.
Yes, this is literally the entire job description of a judge: to "judge" if someone broke the law. Details on what judges have jurisdiction over differ (in some countries they can't rule on constitutional matters), but this is basically how it works everywhere. You have appeals processes and whatnot to deal with mistakes. This is civics 101 separation of powers stuff.
When that one person, who is part of the judicial branch and operating within its jurisdiction, has a trial placed in front of them? Yes. That's literally their job.
The quote is from a landmark case that established the judiciary as being the ultimate arbiters of the interpretation of the laws that have been passed by the legislature and signed by the executive.
What was issued was a temporary restriction from implementing the executive order until the matter is decided. No one issued an order declaring the executive order illegal.
You mean like the President? The President of the United States of America whom is deciding that parts of our constitution, our founding legal document isn't actually legally binding?
Those 300 judges are only a temporary check. They get to say 'hold on, we're going to put this on pause while we make sure it's constitutional'. The 9 people that determine what are legal can then unpause that pause at any time if it is not based on sound thought.
Do you feel that temporary checks (that can be easily reversed) to ensure the government is behaving in a constitutional way are ridiculous?
And they are wrong to do so. Right now a child born in one district in the U.S. will have birthright citizenship while children in every other district won’t. This is an inherently stupid state of affairs.
An injunction is not a judgment. It is temporary. A new rule or law is passed. It might be unconstitutional or otherwise not enforceable. Until this can be sorted out sometimes the law/rule is blocked until it is sorted out. Since the law/rule was not in place before the suit it is sometimes ok to temporarily block the rule until it’s legality can be determined. One goes by the principle of causing least harm.
It causes the least harm to block the birthright executive order until it’s legality can be determined. Therefore it should be blocked nationwide.
Two reasons I'd guess: Trump has signed as many EOs as biden did in his entire presidency already [1]. Presumably when your executive order contradicts existing law you're more likely to be hit by an injunction.
Limiting and doing away with them aren't the same thing.
I'd love to see higher requirements for issuing them, and an expedited appeals process to review them. I'd like to see protections against judge shopping (as endorsed by both Mitch McConnell and Chuck Schumer: https://www.texastribune.org/2024/04/11/judge-shopping-texas...) We know SCOTUS can move very fast when they feel like it.
Why is this on the front page of hacker news? It seems to have very little to do with technology. This is one of the last places mostly devoid of political bs on the internet. The comments are predictably devolving into the same partisan arguments that make places like Reddit unusable now.
Strategically, the government could enact a policy affecting a million people, be sued, lose, provide relief to the named plaintiffs, and then not appeal the decision. The upper courts never get the opportunity to make binding precedent, the lower courts do not get to extend relief to non-plaintiffs, and the government gets to enforce its illegal policies on the vast majority of people who did not (likely could not) sue.
Now we get to see Americans have their legitimacy removed so they can be sent to "Alligator Alcatraz", the new prison being built just for them in the Everglades.
They just did
[0] - https://en.m.wikipedia.org/wiki/Enabling_Act_of_1933
"What no one seemed to notice," said a colleague of mine, a philologist, "was the ever widening gap, after 1933, between the government and the people. Just think how very wide this gap was to begin with, here in Germany. And it became always wider. You know, it doesn’t make people close to their government to be told that this is a people’s government, a true democracy, or to be enrolled in civilian defense, or even to vote. All this has little, really nothing, to do with knowing one is governing.
"What happened here was the gradual habituation of the people, little by little, to being governed by surprise; to receiving decisions deliberated in secret; to believing that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if the people could not understand it, it could not be released because of national security. And their sense of identification with Hitler, their trust in him, made it easier to widen this gap and reassured those who would otherwise have worried about it.
"This separation of government from people, this widening of the gap, took place so gradually and so insensibly, each step disguised (perhaps not even intentionally) as a temporary emergency measure or associated with true patriotic allegiance or with real social purposes. And all the crises and reforms (real reforms, too) so occupied the people that they did not see the slow motion underneath, of the whole process of government growing remoter and remoter. (https://press.uchicago.edu/Misc/Chicago/511928.htm)
It seems like it was ruled that instead of 1000, much more local, people able to protect constitutional rule with the force of the judiciary, we now have 9.
If you analyze only based on power changes, now fewer people have more power.
It would be more accurate to say that prior to this ruling, any of 700 district judges could unilaterally block the president from exceeding his authority under the constitution pending a review, including matters of national security, based on their own subjective view of the law. It may differ in other countries, but under the US Constitution, the judicial branch ultimately decides the limits of executive authority, not the President.
If it's truly a matter of national security, the President could always file emergency appeal and it would almost certainly be granted. If it's such a dire and immediate emergency that even those few hours were critical, it's doubtful that any President would feel obligated to obey the injunction anyway.
Far from preventing the proper functioning of government, this was one of the few remaining guardrails maintaining the proper functioning of government under unprecedented circumstances.
its all just some text on a poece of paper, and neither congress nor the executive wield the military, so their opinions are irrelevant.
https://www.nytimes.com/2016/08/10/us/politics/donald-trump-...
People across the political spectrum have an obscene amount of faith in "can't happen here" beliefs being an actual impediment to authoritarianism.
[0]: https://davidson.house.gov/2025/5/rep-warren-davidson-introd...
https://usafacts.org/articles/how-many-people-are-in-the-us-...
https://www.militaryonesource.mil/data-research-and-statisti...
(position derived from first principles and threat modeling, with input from several US military service members and a physical defense subject matter expert)
Will you see eventual retreat, or will you see eventual overwhelming force? The US didn't want to bulldoze these other countries and jail or kill everyone and set up a new state; very different than how the US would handle more Wacos.
We have seen what you get when you have an armed populace. Highly armed cops. Highly armed federal agents. Military equipment for civilian forces. All necessary in order to compete in the arms race against the "bad guys." All cheered for by conservatives, of course!
All that make it that much more easy to start cracking down. Maybe as a first step, issuing pardons for the rebels on your side while increasing the use of force against those protesting you.
Guns are not defensive tools. If you have a gun, but the government shoots first, you still lose.
You never know who's going to deputize themselves as "law enforcement", with the quiet encouragement and plausible deniability of the ruling political party. Guns are unquestionably useful defensive tools against these people.
As it is, with gun ownership leaning firmly right, Trump has a massive number of armed paramilitaries that he could lean on. In any large-scale suppression of political dissent, those would be the people breaking your door at night, not uniformed feds (there simply isn't enough of the latter). Thus even if you're anti-gun in principle, it still makes sense for left-leaning people in this country to arm given the overall political climate.
If you want the US to be a loose confederation of 50 sovereign nations, fine. Just hope you live in California, New York or Texas, because every other state is going to devolve into the American equivalent of Eastern Europe.
Enjoy the chaos though, because some later administration as a revenge will very likely strip the rights of folks who can't show a naturalization certificate in the same way.
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
Note the "and subject to the jurisdiction thereof". Trump's argument is that people born in America to tourist parents here for a few weeks (for example) aren't subject to the jurisdiction of America. It's a valid argument to make, even if you come down on a different side. Even the author of the 14th amendment said that was the point of that clause. Even in logical terms it makes sense: You can't just let anyone in to give birth and then collect benefits; it's unsustainable.
However, this case wasn't about citizenship. It was about the broader issue of lower courts issuing restraining orders outside their jurisdictions. It's a recipe for chaos. There's a reason why there are multiple jurisdictions, and courts are limited to their jurisdictions. What happens when two lower courts issue conflicting nationwide orders? The only court in the US that has jurisdiction over the entire country is the Supreme Court. This was a losing battle.
There's a right way and a wrong way to go about addressing problems. Court cases are sometimes more about the core issues involved than the concrete circumstances. Sure, birthright citizenship was the reason for the suit, but the core issue was judicial overreach. Don't get mad because the way your side was "winning" was by cheating, and they were stopped. Try having an actual good argument, and doing things the right way by arguing the actual case in a court.
This ‘jurisdiction’ claim essentially only applied to people who had a diplomatic status while in the US. A traveler from Canada has no special right against being prosecuted (just like you would not were you to go to, say Britain).
A governmental figure from Canada would have protections - we would need to interact with another sovereign to hold them accountable.
This really has nothing to do with tourism, outside deceitful assertions on television.
Regarding Britain, here’s an example of someone not being subject to the jurisdiction of a country after committing a serious crime: https://www.cbsnews.com/amp/news/harry-dunn-uk-anne-sacoolas...
I hope this clarifies your misunderstanding about the meaning of jurisdiction.
Sen. Edgar Cowan of Pennsylvania said "I am really desirous to have a legal definition of ‘citizenship of the United States. Is the child of the Chinese immigrant in California a citizen?" He didn't think that child should be.
Sen. Conness of California said he thought it should cover "the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States." And let's remember, as Conness was certainly aware, that many of those Chinese laborers had been imported illegally.
They knew what they were passing, and they knew it included birthright citizenship. Senators who wanted to alter the Amendment to exclude some people failed.
There's a right way and a wrong way to go about addressing problems. If the president wants to exclude natural-born children of illegal immigrants from citizenship, he can lead an effort to amend the constitution.
In ordinary times, the notion of establishing precedent that immigrants are not under the jurisdiction of the US would be met with sputtering indignance for all but the most idealistic anarchists. Because that goes way beyond open borders, it promotes foreigners to super-citizens untouchable by the law.
[0] https://itep.org/undocumented-immigrants-taxes-2024/
You don’t seem to think the USA is very exceptional…
The core premise of your racist rant is built around a the massive edge case. Reality is this policy will probably disenfranchise more children of American soldiers born abroad than prevent the alien invasion you’re scared of.
The notion that the sins of the father impact the child is repugnant. The interests of the nation as a whole not allowing a clear violation of the birthright of our fellow citizens have to be addressed in a lower court, as the Supreme Court isn’t even required to hear their case.
You’re allowing yourself to be manipulated into expanding the power of an executive who will never leave and a court whose power and individual avoidance of culpability for bribery and corruption. I suppose you’ll shrug when we decide that the electoral college can choose to follow the “silent majority” as opposed to the voters.
The 14th Amendment was passed in 1868. Government benefits were basically nonexistent at the time, and besides, with the US population at under 40 million people, we needed more citizens, not fewer. Your "logical" argument is completely anachronistic and irrelevant.
The conservative side of the Supreme Court claims to rule based on what the writers of the Constitution had in mind. This is another example of how they completely ignore what the writers/framers/etc. of the Constitution intended as soon as it interferes with the larger conservative agenda that they serve.
I suspect, if they commit a crime or overstay their visa, we'll suddenly decide we have a little jurisdiction after all.
Where exactly is the unsustainable part of this?
According to the SF Chronicle, about 72 million US households (40% of the population) paid no federal income tax in 2022. I don't have exact numbers but I doubt anyone would dispute that public benefits flow disproportionately to those 72 million households for obvious reasons. So the cause and effect of being a citizen and paying taxes is very tenuous.
> Where exactly is the unsustainable part of this?
If it's unsustainable, then someone should propose a constitutional amendment to fix it.
(I think there's a MUCH stronger argument to be made that the proper function of the US government has been broken by Presidents changing thing by executive order because nobody has enough votes to do much in the Senate. It seems like "nobody has the votes to make big changes" should be an indicator that not making big changes is the proper result.)
The status quo would be "issue a ruling, it may or may not get put on hold while the government appeals, eventually it gets to the Supreme Court if necessary." Seemed to be working. Republicans obviously have used this to challenge stuff themselves.
It is unclear why there is a need for giving the government an escape hatch to let them say "sure, we lost this one case, we'll stop enforcing things against these few people, we just won't appeal and will continue to do whatever we want nationally instead."
"Nobody has the votes" seems like a weird way to put it, because is implies that everyone wants to make changes, they just can't agree which changes to make. On the contrary, I think the issue is that most congresspeople do not want to make changes. Changes are scary. If your name is associated with a change, and that change becomes unpopular, it might threaten your reelection!
The split in Congress is driven by the split in the people and the people DO want actions taken. Just - different actions for each faction.
If there was only one fairly unified party of voters in the country and a Congressman was refusing to vote to do what the voters wanted them to do, they'd get voted out.
"Not doing anything to be careful" is a bug enabled by the population being split.
A certain amount of less-partisan stuff does get passed all the time. But, to get more subtle about it, I think the danger if you help pass something like consumer protection - even if MOST people on both sides would support it - isn't that you risk getting branded with it if it backfires. It's that you get labeled soft in a way that the die-hards who dominate primaries can be rallied against. The right wing has been VERY aggressive in pushing purity tests for decades, and eventually you have convinced everyone of the final-battle-of-good-and-evil stakes. The left has been doing it more and more too, sadly - but it's not like what they were doing before was working too great.
That situation also gives increasing sway to the rich lobbyists who also want to make sure those basic things don't happen. Your base won't get mad at you for failing to ban abortions nationally because obviously you can't. So they don't put much blame on you for not getting the smaller stuff done either, or scrutinize your donors too much.
This might have been the case in the region you grew up, or you might be deceived by narratives in mainstream political discourse (which are driven more by politicians, interest groups, and media than by popular opinion). Regardless, there are plenty of national policy polls that show high Republican support for a wide array of consumer protection policies. This one turned up from a quick web search:
https://today.yougov.com/politics/articles/50343-national-po...
The 3 highest-supported consumer protection policies among Republicans:
- 88%: Increasing restrictions on telemarketers' use of automated dialing and robocalling
- 85%: Banning excessive price increases during emergencies
- 78%: Creating a federal digital-privacy bill of rights to protect personal data and privacy online
And here are the 3 lowest (the dataset is only for policies supported by a majority from both parties):
- 56%: Imposing stricter penalties on companies that use monopolistic practices
- 60%: Banning credit agencies from reporting information on unpaid medical bills
- 64%: Requiring all electronic device manufacturers to make their products compatible with the same type of charger
So it reads to me like we've ended up in a similar spot, but with the requirement that an insane amount of paperwork happens.
What this means is that it’s now ok for the orange man to break the law. Rule of law will only be upheld in very limited circumstances in very limited areas.
This is a ruling which chooses order over law. Order without justice is tyranny.
My reading is that under the previous system, a single district could prevent an order federally, even if every other district judge agreed with the new order.
I don't see why a single district should be able to influence the entire country. I would understand that they could limit powers in their district, and potentially challenge laws at a state level, and then federally.
Let's look at how this could have impacted a topic that gets my attention in the US, gun laws.
I'm definitely left, so let's say a president came in and made some order about changing gun laws and made it harder to get a gun.
It seems to me, that if that were to occur, a single judge in a gun-loving district could block the order universally for all the other states?
That doesn't seem right. It does make sense that they could say that law doesn't apply to our district, and we will challenge that law being applied to our state and if the state agrees, they could then challenge the law federally.
I'm obviously making up a ton of stuff about a system that I don't understand.
Should a single person be able to pull a fire alarm? Or do we need building-wide consensus first?
You mean like under their own judgement?
District courts do not create precedent. Precedent comes from appellate courts.
This is why we should have small government. If the government has a narrowly scoped role, the fear of the other side getting elected goes away. With huge government comes great concern about who’s in it.
As proof of that principle, how many people are really fired up about who is elected locally? How about nationally? The reason is the federal government has way too much power.
In the meantime, when I sue John Doe and get an injunction, they are enjoined from their conduct everywhere; but when I sue the government, it should only apply to me? Makes no sense.
1. The executive is doing something illegal to hundreds of thousands of people.
2. Dozens and hundreds of people sue them.
3. The executive loses in court.
4. The executive does not appeal to the supreme court the cases it lost.
5. Thus, no binding precedent that stops the illegal action in #1 is set.
This is actual lawless lunacy, and this enshrines it as SOP going forward. Is this the country you want to live in? Do you think this is how it should run?
Here's a wild idea. If the executive disagrees with the federal courts on the merits of whether or not its decisions are illegal, it can appeal up to SCOTUS, and win a case on its merits. It can't do that because even under this SCOTUS, their case has no merits.
> exercising his authority under the constitution pending a review
That is the entire bloody point of checks and balances. You are cheer-leading the complete destruction of them. The government, when challenged on the legality of what its doing, needs to win their case in court, because the courts are the final arbiters of written law.
Yes, this has been going on for decades at various levels of government.
It's very common when it comes to gun rights. The government (local/state and federal) will frequently avoid appealing if they think they might then lose the case, setting a wide precedent for millions of people.
Nationwide injunctions were never clearly authorized by statute, and letting any one of 700 district judges block a federal policy everywhere created chaos and forum shopping.
If a policy is truly unconstitutional, the proper path is a class action or taking it up to the Supreme Court
Not giving individual judges a veto over national law.
So every person wronged by the government should sue individually?
The point is that relief should be tied to proper procedure, not handed out universally by default. One judge shouldn’t decide national policy based on one plaintiff unless the case is structured to justify it
The actual parties will have been shipped off to another country, unable to bring the case, and anyone not already deported would lack standing to challenge the action.
That seems awfully convenient for the executive.
What chaos that would be worse than the chaos of jurisdictional fracturing they're asking for here and the possibility to not let cases escalate to courts with supposed national jurisdiction? Rulings were stayed all the time.
The existence of a national injunction seems built in to the job of a federal judge since federal law is definitionally national. Voiding it only locally, or only in regard to specific plaintiffs, seems like a huge wishful reach.
> The existence of a national injunction seems built in to the job of a federal judge since federal law is definitionally national
That’s a clever line.
See, there is a difference between saying “this law is unconstitutional” and saying “this law is blocked for everyone, everywhere.”
And... who was suffering for it, exactly? How was it hurting me?
> That’s a clever line. > > See, there is a difference between saying “this law is unconstitutional” and saying “this law is blocked for everyone, everywhere.”
"This law is only blocked for these people" is the less "clever", more "obvious" situation in your mind? No, that's a clever hack that same sneaky bastard came up with to justify removing further obstacles for the executive to increase its own power.
But it seems to fly against the face of history. Federal law has been in the business of preempting local authority for centuries. Now we want to unwind that and let jurisdictions opt-out case-by-case?
Courts can still block unlawful policies, but broad relief should come through class actions
This ruling doesn’t undo federal supremacy. It just puts guardrails around how relief is issued
Without you telling me any specific harms of the "chaos and inconsistency", and how you think they will be reduced now, then I can only consider the harms of the new potentials for inconsistency which is "the excecutive intentionally does not appeal when they lose to small groups because they want to be able to continue to overreach nationally."
What are the concrete examples of chaotic things that caused issues that you don't think could happen now?
1. In 2017, one district court blocked Trump’s travel ban nationwide, while others upheld it. That led to confusion at airports and legal whiplash
2. In 2019, one judge blocked the public charge immigration rule nationwide, while others allowed it. The rule ended up applying in some States and not others
3. Multiple district courts issued conflicting nationwide injunctions on Title IX guidance for transgender students during the Obama and Trump years
Those are just some
Inconsistency is still possible. But the alternative was worse
What we had was a race to the most favorable courtroom
The fix isn’t unlimited injunctions. It’s reform and not stretching judicial power beyond what the law allows
Was the inconsistency resolved?
How is there less room for inconsistency now? If a judge has said five plaintiffs can play on a certain sports team in one jurisdiction, now the sports administrators need to know every ruling in every jurisdiction that their league functions in?
What makes you think "reform" is going to happen here? Have you read much of the material pushing for increased executive power on the right? It's very clear that the goal is solely to remove impediments to stretch executive power to the point that executive power decides what the law allows.
Title IX issue is not resolved. Public charge rule resolved itself because the Biden admin rescinded the rule. But not before creating mass confusion. Trump travel ban was resolved by SCOTUS as valid once Trump modified the ban
The point is that nationwide injunctions from different district courts created that chaos in the first place, often forcing rushed Supreme Court intervention just to untangle conflicting orders
So now you can be a US citizen when in New York but not while in Kentucky. Sure to cause no chaos.
The rulings just means an injunction only affects the parties in that case or a certified class and not everyone everywhere automatically
It's not a veto, it's a delay until appeal. If the lower court is wrong, SCOTUS has never had any issue with settling the question.
The fact that the government isn't appealing means that they know they can't win on appeal, and what they are doing is illegal.
If the executive avoids appeals to dodge precedent, that’s a separate (and valid) concern. But the solution isn’t to stretch injunction power beyond its legal limits
It is about who gets to block national policy for everyone, based on one local case. That kind of sweeping relief was never authorized by Congress
It can't just be, I don't know, a plain reading of the fucking law.
It's time to Balkanize.
The purpose of courts litigating the legality of executive actions is not establishing innocence or guilt, so what you're saying is completely irrelevant.
The president doesn't go to prison because some court found that he signed an illegal executive order. (But it sounds like you maybe think that should be the case. It's hard to tell, because you aren't saying anything coherent.)
> The POTUS doesn't need to ask for permission to politicized local judges
Let's play a simple game. If he signs a blatantly unconstitutional and illegal EO ordering the US Marshals to have you and your family arrested, tortured, and shot tomorrow, whose permission do you think he should need? Which parts of the government would be able to stop him?
You seem to think that no 'politicized'[1] judge should be allowed to say "Whoa, hold on there, that may be illegal."
---
[1] What the hell does 'politicized' mean? Is there a single person in government who is not 'politicized'? Is SCOTUS somehow not 'politicized'? Is the executive?
IANAL but I read SCOTUS opinions regularly and this one is hard to argue with. If things should be different then we need legislative/constitutional changes.
lol, yes, like birthright citizenship written plainly into the constitution.
What good are your further legislative/constitutional changes worth if the executive can just ignore them except for the single individuals who file suit?
In practice it absolutely does, because now everyone is scrambling to try and protect their clients that were previously covered by the larger injunction. The supreme court could have just not taken the case in the first place, or let the injunctions stand as an appropriate use of injunctions (for grossly unconstitutional executive orders)
Guess what: You're living in the world of bigger problems.
This ruling does not "restore" a functioning balance, it damages it. This has never been a problem in the past because previous administrations (regardless of politics) didn't take illegal actions daily. Framing it as "politics" is disingenuous as many of the judges ruling against Trump were appointed by him.
The system was working as intended to check an executive acting outside of the law, but once again, the supreme court continues to empower the executive.
I could extend some merit to the idea that injunctions should be limited in complex cases where case law is thin and the law is less than clear. When executive orders are clearly unconstitutional, however, I do not then see any reason for limits.
The law that states that growing wheat on your own land is interstate commerce.
In theory it's just an injunction, but the reality is this kind of stuff takes forever to get hashed out in the courts, and Trump will be well out of office before it gets settled.
I have no problem with SCOTUS injunctions, but there are too many district courts for this to work.
The way things were heading the president was going to be forced to start ignoring injunctions, and he would have been right to do so. The Roberts court had to make this ruling for the government to function.
Justice Sotomayor dissents:
> Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit.
If that’s the case, I’m curious if it could be fixed with a class action, so everyone (or everyone born in the US) is a plaintiff? If that’s legally a thing.
> There is a serious question, moreover, whether this Court will ever get the chance to rule on the constitutionality of a policy like the Citizenship Order. Contra, ante, at 6 (opinion of KAVANAUGH, J.) (“[T]he losing parties in the courts of appeals will regularly come to this Court in matters involving major new federal statutes and executive actions”). In the ordinary course, parties who prevail in the lower courts generally cannot seek review from this Court, likely leaving it up to the Government’s discretion whether a petition will be filed here. These cases prove the point: Every court to consider the Citizenship Order’s merits has found that it is unconstitutional in preliminary rulings. Because respondents prevailed on the merits and received universal injunctions, they have no reason to file an appeal. The Government has no incentive to file a petition here either, because the outcome of such an appeal would be preordained. The Government recognizes as much, which is why its emergency applications challenged only the scope of the preliminary injunctions
This is a whole-sale shredding of the constitution.
Forgive a possibly silly question but in what sense does being "in" Florida mean you are bound by Florida state law when you leave? How long did you need to be in Florida before you became bound by its law? What if you fall pregnant after you left? Can you be in breach without ever having been in Florida, and a LEO can therefore take you there and charge you?
But let's look at the birthright case that this ruling comes from.
Let's say Nevada state sues the federal government. The ruling is made from their district court that birthright citizenship is clear and this EO is illegal. An injunction is placed against the EO.
The state of Kentucky does not sue.
Previously, the Nevada court injunction would apply nationally. The EO is unconstitutional. EOs are federal, the constitution is federal. So, clearly, it is unconstitutional everywhere and must be stopped.
The federal government can then go through several layers of appeal to prove that this was a mistake and the EO is legal. All the way up to SCOTUS, who makes the final judgement and cannot be appealed.
What SCOTUS just ruled is that the injunction against the federal government only holds the EO from applying to the specific litigant. That can be a whole state, a group of people, or a single individual. Even though the EO is now ruled unconstitutional in the eyes of the federal court de jure, it is de facto still the law of the land by default to all other entities.
And it gets worse. A litigant cannot appeal to the next court, only a defendant that loses. And SCOTUS only has to address cases that are appealed. There is no mandatory reconciliation process. That means, for an infinite amount of time, individual people will have different constitutional interpretations that require a background of every case that has ever involved them.
So, back to our example. If the federal government loses in Nevada and there is no ruling in Kentucky... What the fuck even happens? Someone is or is not a citizen, that's literally the point behind Dread Scott and Obergfell, but they've contradicted those cases and invented a constitutional superposition.
So, in Nevada a naturalized citizen with non-citizen parents is... A citizen? Because of the injunction? And what if they're in Kentucky, but were born in Nevada? Or vice versa?
But, no, this isn't a state law. It's federal. Which means it doesn't matter what state you're in when you do it, it's still illegal. And federal LEO had the authority to try you in a different location than where you were arrested. So - born in Nevada or Kentucky, where you are now, that doesn't matter. Effectively, you have no citizenship. Again, this is quite literally Dread Scott.
This SCOTUS ruling effectively disables the constitution and dissolves the union of states. I'm not being dramatic, this is also the opinion of Sotomayor.
Curiously, this does not actually extend to other cases. So, say, if McDonalds gets in trouble and an injunction placed against them. That still applies universally.
https://www.texastribune.org/2024/02/09/texas-abortion-trans...
Indeed, this is one of the concerns of the dissenting opinions.
https://en.wikipedia.org/wiki/Lochner_era
What you describe is voting
We’re in this mess because people are not interested enough, educated enough, or engaged enough politically to make their position explicit to drive the direction of legislation and executive action.
Citizens of The United States have every tool available to to work together to shape their communities. The reality is the overwhelming majority do not do that, and you can come up with a lot of reasons why, which are structural in many cases, but the fact remains that the majority of people are not involved in the political process at all, have no desire to be an actively reject any opportunity to be.
Assuming that citizens would all of a sudden become involved because it requires a lawsuit, means that there’s the capacity to do so, which does not exist, and all we need is a catalyst.
If the number of possible catalysts that have already happened in the last decade we’re not sufficient then nothing short of a literal terminator Skynet scenario is going to cause people to take action and I’m increasingly doubtful that even that would do it.
Based on my observation from my work position, people are ready to just roll over onto their backs and have robots slice them from the belly up, because it’s easier than actually doing something that would prevent it.
I would not have thought that this is what the Constitution says, but the Supreme Court is the final arbiter of what the Constitution says. That's not in the Constitution, either, but they've appropriated that job for two centuries, so we let them get away with it. The "it's not illegal if the President does it" part is new, though they've been leading up to it for decades, so it's not really surprising.
Edit: actually, even that is overstating it. This is an extremely narrow ruling that is mainly about the powers of federal judges. It's the sort of ruling that the "other side" will trumpet as settled law when they're the ones in power again.
Forgive student loans? No authority!
End birthright citizenship? Well, he's the boss!
You're right, though, it is different; birthright citizenship is spelled out, very clearly, in the Constitution. It's an even plainer wrong.
It's Calvinball.
Likewise, in 1868 the writers of the fourteenth amendment probably couldn’t conceive of rapid international travel and the possibility that pregnant women could just show up weeks before their due date and their newborn child should “obviously” be an American citizen.
The amendment was quite obviously targeted at Native Americans and slaves, not any and all pregnant women the world over who manage to reach the US before giving birth. But as you’re noticing, there’s multiple ways people can interpret laws. It’s rarely as cut and dry as “this is obviously against the law!!!”
This is a better point than you realize, and in the opposite direction you intend.
Immigration in the 1800s was a… cursory process. Not only would those kids be citizens, but their parents would have had little trouble staying around.
We had very few rules beyond “don’t be Chinese” until 1891. https://en.wikipedia.org/wiki/Immigration_Act_of_1891?wprov=...
“Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore.”
And immigration was not a free for all, despite what you may think. We had racial quotas, for one. Limits on how many immigrants we would accept, an expectation that immigrants were processed at designated intakes, and (perish the thought), actual periods of time where we said “we’ve taken in a lot of immigrants, we need to slow down for a while to let things settle.”
We didn’t even bar felons or people with contagious diseases before that act. Pregnancy certainly wasn’t disqualifying.
https://en.wikipedia.org/wiki/Immigration_Act_of_1882
> It imposed a head tax on non-citizens of the United States who came to American ports and restricted certain classes of people from immigrating to America, including criminals, the insane, or "any person unable to take care of him or herself." The act created what is recognized as the first federal immigration bureaucracy and laid the foundation for more regulations on immigration, such as the Immigration Act of 1891.
The quotas you describe didn’t come until the 1920s. Well after the amendment.
https://en.wikipedia.org/wiki/Immigration_Act_of_1924?wprov=...
Just to return to this for a moment… this is quite incorrect. Native Americans were explicitly not included. That came later.
https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_Un...
"Consistent with the views of the clause's author, Senator Jacob M. Howard, the Supreme Court held that because Indian reservations are not under the federal government's jurisdiction, Native Americans born on such land are not entitled to birthright citizenship. The 1887 Dawes Act offered citizenship to Native Americans who accepted private property as part of cultural assimilation, while the 1924 Indian Citizenship Act offered citizenship to all Native Americans born within the nation's territorial limits."
SCOTUS did rule on the anchor babies thing, in 1898.
https://en.wikipedia.org/wiki/United_States_v._Wong_Kim_Ark
Why am I supposed to be mad about people doing this, exactly? Because of hazy "rules are rules" talk?
There's no written rule that the boss's son is gonna get the cushy VP slot, but everyone knows it.
Where was SCOTUS when https://en.wikipedia.org/wiki/Reed_O%27Connor issued all his nationwide injunctions?
> California Attorney General Rob Bonta, a co-plaintiff, looked for a silver lining: Red states, which sought universal injunctions to stymie Biden administration policies, would encounter obstacles pursuing that strategy under a future Democratic president, he said.
Call me a crazy, glass-half-full centrist, but I prefer to look at this as a clawing back of extremely broad powers from rather partisan judges. It's been maddening that circuit court judges in a few hyper-partisan districts basically push every decision to the Supreme Court.
[1] https://www.wsj.com/us-news/law/scotus-birthright-citizenshi...
Sure, and Susan Collins thinks Trump "learned his lesson" with his first impeachment. Looking for the silver lining is what we sometimes call "cope". He lost. As a politician, he's obliged to put some spin on it.
> It's been rather maddening that circuit court judges basically push every decision to the Supreme Court.
It is. This sort of thing should've died before ever becoming an EO, and at every level of the judiciary as clearly unconstitutional. That it didn't is a big problem.
No, stare decisis is not binding. Nor does it still exist.
If it was not binding, did it ever exist?
Anyway, there's nothing that binds any Supreme Court to do anything at all. This argument terminates in noise. It's just partisan fretting.
We agree. So your remark about “nothing in the ruling says. . .” was actually irrelevant to the broader point. From a lacuna in a decision we can conclude nothing.
Beyond that, no. We also don't agree that that world is the one that we live in.
And notably, exactly the same Republican-nominated Supreme Court judges did not do anything to interfere with exactly the same legal process (nationwide injunctions) when they were aimed at a Democratic president. See, e.g. Biden's student loan forgiveness executive order.
Yep, agreed. I already added an edit saying exactly the same thing.
"C. The District Court’s Remedy Was Improper" is a section of the petition for cert in The mifeprestone case from the Biden admin[0], where the SC overruled the district court's PI, but declined to address the question of whether it's PI was reasonable.
[0]: https://www.supremecourt.gov/docket/docketfiles/html/public/...
For example, a president is granted authority to command the military and issue pardons. They have absolute immunity for any act performed using these authorities, including illegal acts such as assassinating or deporting a political opponent or accepting bribes in return for pardons. This is not a matter of opinion or a controversial interpretation, these consequences were discussed during the case and in the opinion, and the court accepted them.
> Mr. MADISON, objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for any act which might be called a misdemeanor. The President under these circumstances was made improperly dependent. He would prefer the Supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part.
> Mr. PINKNEY disapproved of making the Senate the Court of impeachments, as rendering the President too dependent on the Legislature. If he opposes a favorite law, the two Houses will combine agst. him, and under the influence of heat and faction throw him out of office.
Ultimately it was decided that "in four years he can be turned out", so it was not worth addressing further. Indeed some argued that the President should not be impeachable at all because of this.
> Mr. KING expressed his apprehensions that an extreme caution in favor of liberty might enervate the Government we were forming. He wished the House to recur to the primitive axiom that the three great departments of Govts. should be separate & independent: that the Executive & Judiciary should be so as well as the Legislative: that the Executive should be so equally with the Judiciary. Would this be the case, if the Executive should be impeachable? It had been said that the Judiciary would be impeachable. But it should have been remembered at the same time that the Judiciary hold their places not for a limited time, but during good behaviour. It is necessary therefore that a forum should be established for trying misbehaviour. Was the Executive to hold his place during good behaviour? The Executive was to hold his place for a limited term like the members of the Legislature: Like them particularly the Senate whose members would continue in appointmt the same term of 6 years he would periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it. Like them therefore, he ought to be subject to no intermediate trial, by impeachment. He ought not to be impeachable unless he held his office during good behaviour, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised. But under no circumstances ought he to be impeachable by the Legislature. This would be destructive of his independence and of the principles of the Constitution. He relied on the vigor of the Executive as a great security for the public liberties.
The president absolutely is accountable. The problem is the Congress for their own reasons refuse to hold it to account. The Congress could remove any president in less than 24 hours with simple majority for no reason whatsoever.
The Court has long considered that the president has a duty to follow the law, but also that the Court can’t compel the president to follow the law. That is a political question. Congress alone can stop a president by impeaching and removing them from office. Not only can’t the Court initiate impeachments, impeachment is unreviewable by the Court.
If there’s a servile Congress, it means voters can elect a law breaker as president. They are going to get a president who breaks the law.
And this is what’s happening. People voted for an abuser, a rapist, a felon, a conspiracy theorist who lies about the outcome of elections, lies that VPOTUS can and should overturn them, and even sent a mob to have that VPOTUS assassinated for refusing to comply with that illegal order. Then boasted he’d pardon all those criminals who were in his service. And despite all of this, people voted for him again.
The people got exactly what they voted for.
Remember, force is out of the question because it will provide justification for the oppression and make people more willing to accept it.
The illusion some want you to believe, is that it is.
“The preferences of the average American appear to have only a miniscule, near-zero, statistically non-significant impact upon public policy.”
https://act.represent.us/sign/problempoll-fba
And they actively vote against the will of their constituents 35% of the time. http://promarket.org/2017/06/16/study-politicians-vote-will-...
A prime example of this is the immigration system. https://www.nytimes.com/2024/10/29/podcasts/the-daily/electi... (“On the Ballot: An Immigration System Most Americans Never Wanted”). Americans never asked to import tens of millions of people from the third world. When Congress reformed the immigration system in 1965, they promised that wouldn’t happen. But for decades, there’s been a coalition of pro-foreigner liberals and pro-cheap-labor conservatives that have facilitated massive immigration that average americans never asked for.
Trump, ironically, is a reaction to the very thing the Princeton study identified.
The case when everyone agrees doesn’t tell you anything. It’s only when people disagree that you can find who has actual power and in this case the general public has effectively zero actual meaningful power day to day.
Systematic voter suppression plus gerrymandering etc may win you rigged elections, but ultimately voting isn’t about the system in place it’s avoidance unrest. We’re entering uncharted territory with how strongly people disagree with what the government is doing, which is where the general public actually has a say, namely by destroying the existing power structures rather than voting. It’s not even a question of insurrection, not having kids plus 60’s style dropping out at scale is ruinous.
1) General labor strike
2) General rent/bill strike
Either one results in an immediate liquidity crisis/credit crunch and the delegitimizing/insolvency of most institutions. The beginning of the COVID pandemic was, essentially, this.
I would add in "general bank run", but I imagine that they just... wouldn't let that happen. Ironically, an emergency "injunction" against withdrawals.
It does tell you something. For example, if people mostly disagreed with the elites, but the elites got their way anyway, that would be a different situation.
> We’re entering uncharted territory with how strongly people disagree with what the government is doing
You’re overestimating how much people care about any of this stuff. I’m in a blue state and I hear almost nothing about it other than from some overly empathetic people on facebook. The “protests” recently were tepid and nearly all elderly liberals with nothing better to do.
A big chunk of the country really wants mass deportations, and for the most part, folks in the broader left don’t care much to oppose it.
https://www.npr.org/2025/06/26/nx-s1-5447450/trump-2024-elec...
The problem is that Dems are just culturally irrelevant. Most people don't care about issues, policy or the economy, they just want to cheer for a team and will justify everything their team does regardless of efficacy or outcome. Trump is the fun underdog team that everyone is talking about, the Dems are the boring party-pooper team we all love to hate. During covid, that boring became a source of needed stability, but after boring stewarded us through the crisis, nobody wanted to be associated with them again.
You can’t shape your community to overcome the power of the federal government.
Donald Trump received only 49.8% of votes in the 2024 United States presidential election.
This is what the American people voted for.
1. I quit drinking for the time being. This had a modest but real effect on my mood and general wellbeing. It has pros and cons, but on balance it's a win for where I'm at and what I'm trying to do. I might choose differently in the future.
2. I installed GrapheneOS and built NixOS, from source, with fairly extreme choices about networking. This had a staggering effect on every aspect of how I think and feel: cutting the surveillance capitalism at the network level is like having a mass of rage and angst and blurry confusion taken out of my head. I will never, ever go back to that.
Its time for everyone to cut the cord. Get a Pixel, an 8a open box at best buy can be 200-300, install Lineage or Calyx or Graphene, and reclaim ownership of your brain.
If you accept that framing, you accept many of that frames implications without even consciously processing them. This is one of the ways that consent is manufactured.
This ruling is stating that federal judges cannot rule that the law is blocking Trump. By accepting and adopting the frame that it is Trump vs Judges you implicitly accept that the law itself is a weapon rather than a boundary. It argues that the law is subjective, based on the judge ruling, rather than objective. It argues that there is no objective truth. To say it is judges and not the law that stops trump is to say that judges are agents of themselves and not agents of the law.
Agreeing that it is Judges vs Trump is implicitly agreeing that the law is arbitrary based on the judge ruling. Arbitrary government is authoritarian government.
The court’s decision to permit the executive to violate the constitution with respect to anyone who has not yet sued is an existential threat to the rule of law,” Jackson wrote. “Given the critical role of the judiciary in maintaining the rule of law … it is odd, to say the least, that the court would grant the executive’s wish to be freed from the constraints of law by prohibiting district courts from ordering complete compliance with the constitution.
This feels about as grim as the Citizens United dissent, which has been proven more and more true every day:
A democracy cannot function effectively when its constituent members believe laws are being bought and sold.
The famous quote “give me the man and I will give you the case against him.” Comes to mind. https://en.m.wikipedia.org/wiki/Give_me_the_man_and_I_will_g...
Legal settings (at least in the US), have always favored the wealthy who can find an army of lawyers to find loopholes.
I don’t agree with this, and hopefully what is currently happening raises awareness.
For example, the Patriot act post-9/11 famously gave law enforcement unconstitutional powers within 100 miles of a national border (I could be off, but this is how I remember it). If you really want to split hairs, the US has a LOT of borders if you include international airports.
Oh but the high court of chancery in england! They didn't have them, so we can't either! Never mind that is 2025, we're a different nation, the federal government has a lot more power, and we have these injunctions for all of Biden's term and they had plenty of opportunity to stop them but said nothing when it was for protecting gun rights or denying women's healthcare.
Every federal judicial district (that's one per state in smaller states, but more in larger states—California has four.)
North and South?
https://www.caed.uscourts.gov/caednew/index.cfm/cmecf-e-fili...
https://www.uscourts.gov/about-federal-courts/about-federal-...
1. File a suit in every circuit
2. Request an injunction type that's more appropriate
Given the number of babies being born every day it shouldn't be hard to do.
The thing is, the US doesn't issue citizenship papers. So I suppose they need to apply for an SSN and get denied (since the baby is a non-citizen), which will show immediate harm.
It also begs the question: if that baby is illegal can it be deported?
The thing here is that instead of officially denying it, the administration will just "coincidentally" slow-walk everything indefinitely, then illegally exile the baby to Sudan when ICE notices they don't have proof of citizenship.
The administration isn't going to slow down processing for everyone, because actual citizens will have issues as well. That will be even more problematic.
Moreover, there is literally no mechanism to prove that your parents are citizens.
Millions of citizens will be at the whim of whatever racist thug decides to hurt them that day.
Welcome to Fascist America.
Let's not pretend all assertions are equally worth entertaining. Maybe it's "misleading" if you're Stephen Miller, but every court case where it's ever been heard and the legislative record at the time of adopting the 14th amendment show that citizenship is guaranteed. The Trump administration hasn't even raised it in appeals!
> Howard said that the clause "is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States."[30] He added that citizenship "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons"[30]—a comment which would later raise questions as to whether Congress had originally intended that U.S.-born children of foreign parents were to be included as citizens.[32]
That'd be a deeply ironic thing to cite as evidence for this court.
https://en.wikipedia.org/wiki/Textualism
"Textualism is a formalist theory in which the interpretation of the law is based exclusively on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law."
Legislative intent didn't save the Voting Rights Act, or the EPA.
yes, exactly, if you're born to an ambassador in the US, you aren't subject to the jurisdiction.
Meanwhile:
> The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States. . . . Here is a simple declaration that a score or a few score of human beings born in the United States shall be regarded as citizens of the United States, entitled to civil rights, to the right of equal defense, to the right of equal punishment for crime with other citizens; and that such a provision should be deprecated by any person having or claiming to have a high humanity passes all my understanding and comprehension.
(the "declared that by law" is referring to the Civil Rights Act of 1866 that Howard used as the basis of the 14th amendment: "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States")
> This Court's prior cases... cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. Pp. 457 U. S. 210-216.
> The author of the clause didn't think it applied to the children of aliens, so it doesn't seem crazy to me. >> Howard said that the clause "is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States."[30] He added that citizenship "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons"[30]—a comment which would later raise questions as to whether Congress had originally intended that U.S.-born children of foreign parents were to be included as citizens.[32]
Greenland, Finland, Norway and Sweden all have no concept of Jus Soli and as far as I know, kids born to non-residents aren't being deported from the hospital.
>Moreover, there is literally no mechanism to prove that your parents are citizens.
I would think a birth certificate would work....
You'd probably be wrong.
> Still, Immigration and Customs Enforcement kept Watson imprisoned as a deportable alien for nearly 3 1/2 years… Watson was correct all along: He was a U.S. citizen.
https://www.npr.org/sections/thetwo-way/2017/08/01/540903038...
Bonus: They held him long enough the statute of limitations to sue expired.
> On Monday, an appeals court ruled that Watson, now 32, is not eligible for any of that money — because while his case is "disturbing," the statute of limitations actually expired while he was still in ICE custody without a lawyer.
Even a passport isn't enough:
https://www.buzzfeednews.com/article/hamedaleaziz/us-born-ma...
> A US-born Marine veteran who served in Afghanistan had his US passport, a REAL ID driver’s license, a military ID card, and his US Marine Corps dog tags with him when he was arrested by police in Grand Rapids, Michigan, and turned over to Immigration and Customs Enforcement, which held him for three days before his lawyer demanded his release, according to the ACLU of Michigan.
https://nymag.com/intelligencer/article/trump-ice-detained-c...
> In her study, she found that, on average, U.S. citizens detained by ICE spent 180 days behind bars.
Without birthright citizenship, a birth certificate no longer implies citizenship.
Many Americans have no birth certificate. My mother, for example.
Remember when the whole entirety of the US right-wing lost their goddamned minds for a year or so re: a sitting president's birth certificate?
"No right is safe in the new legal regime the court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship. The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit. Because I will not be complicit in so grave an attack on our system of law, I dissent."
Was it taken away illegally or by the book?
Without citing sources or arguments to that, then it literally it IS FUD.
1. The 14th Amendment to the Constitution, which covers everyone born here who is not the child of foreign diplomats or members of foreign armed forces stationed in the US.
2. The Indian Citizenship Act of 1924 which extended it to Native Americans who were living under tribal sovereignty.
3. The Immigration and Nationality Technical Corrections Act of 1994 extended it to children of US citizens who are born outside the US.
Yes. It's in the constitution. Says it right there. Please explain how all our eyes deceive us.
A great summary: https://law.stackexchange.com/a/33057
In short the phrase “and subject to the jurisdiction thereof” excludes three and only three groups of people:
1.Children born to foreign diplomats here on diplomatic business, who have diplomatic immunity to US Law
2.Children of members of an invading army that has occupied and controlled some part of US territory, born on that occupied area, who are obviously not subject to US Law (which has rarely happened in the US, although Guam was occupied during WWII, and parts of Alaska, and small parts of Maine during the War of 1812); and
3. Members of Native American tribes, subject to the jurisdiction of their tribal governments, who do not pay US taxes. (This was true when the 14th amendment was passed, but it no longer is. See section below on the act that changed it in 1924.)
https://www.heritage.org/immigration/commentary/birthright-c...
Is america only for the white descendants, the former slave owning class? Perhaps former Nazis who fled Germany after the war? Who is america _really_ for? Why should Trump and the GOP get to decide who the undesirables are? This narrative of “giving away citizenship” quite literally makes zero sense.
Even as a child growing up it was clear to me (from teachers, textbooks, books, movies) that what makes america special is its ability to integrate immigrants from various backgrounds into 1 working nation. It’s a land of immigrants from the start.
The founding fathers didn’t “belong” here either. The land was stolen from native americans and other tribes that lived here. It’s in the DNA of the country. Some Americans need a big mirror and a heaping spoon of empathy IMO.
If you're born here
And I'm born here
.... ??????????
It's right there in the fucking Constitution!
I'm not particularly happy about nationwide injunctions, but this is much worse if you have a president who is not shy to "break the law now and fight it in court later". And now that Trump has shown the way, you can be sure future presidents will follow.
Another terrible outcome is that you then have federal orders applied differently from state to state (or more accurately, federal district to district). If you're in Nevada you won't get citizenship, but in Oregon you will.
This is right up there with the Presidential Immunity in terms of terrible decisions by this SCOTUS.
They're 100% coming for Obergfell and it's clear now how. They'll arrest a legal US citizen who has naturalized citizenship from illegal parents, born in a state that received an injunction but residing in a state that has not.
The representative of that person will say that they by being a citizen in the other state, they must be respected as a citizen in the other. They will cite Obergfell.
The SCOTUS will revoke their ruling on Obergfell and say, no, you are not a citizen just because there's an injunction in that other state.
The astute reader may notice that this is literally a replay of Dread Scott.
This ruling is idiotic even if you are generally opposed to nationwide injunctions. Birthright citizenship is a fundamental and clear cut right. Any attempts to overturn that must meet a high burden of justification. Temporarily suspending such attempts until the matter can firmly be decided causes the least amount of harm and should be allowed.
That's pre-2025 thinking. Now, in 2025, there are no clear cut rights, other than, maybe, gun ownership.
That's literally how the court system works. Each circuit has different rules until things are unified by the Supremes.
Just because you haven't paid attention doesn't mean it's idiotic. It allows the judicial system to see what real effects are before having to make a decision.
If someone is going to be deported they can file a case and stop the deportation. It mostly works that way now, and there's no real reason to change it.
A President can now issue blatantly unconstitutional executive orders and the burden for obtaining relief will rest on each individual person (or small class of people). Prior to today rules/laws that caused harm could be temporarily prevented from being enforced while the matter is litigated. Now parties that will be harmed are much more likely to be harmed before the matter is resolved. This is a sad state of affairs.
If the next President issues an order confiscating guns from people the champions of today’s ruling will want nationwide relief while the matter is litigated.
If someone is going to be deported they can file a case and stop the deportation.
And you accuse OP of not paying attention!
The US has a three-tiered judiciary that moves slowly, Congress has a very high threshold for impeachment and removal (and a slow process), and the order of succession is basically locked in for four years. The people are not easily moved to action, and it's doubtful how much they could realistically accomplish.
Universal injunctions were a Band-Aid fix, one of the very few avenues our system permitted for there to be any rapid institutional response to illegal and immediately harmful policy. But that is no more.
As an exercise, what happens if a president issues a "throw enemies in the woodchipper" executive order? How many hours or days would it take the other branches of government to legally nullify the order? (What they can do in practice is another question.)
It's an extreme example, but a future admin could use the current admin's reasoning to unilaterally confiscate guns and force you to be a plaintiff in federal court to get relief.
In the USA, some judges are elected, hearings can be televised, fragmented laws nationwide, court filings often public.
In UK the opening of the judicial year happens in a church service (i.e. biblical punishment is common), many judges are freemasons,court filings not public, courts control what gets to media, the court below supreme court can, and routinely do, block cases from getting to supreme court. And More. In short UK judiciary is institutionally corrupt with the elected and unelected the one and the same but press won't say it.
1) There is no written constitution, the supreme court in the UK is only there to interpret existing laws as written not to interpret differences between "tiers" of law
2) The UK has a system that can pass new laws, generally by simple majority so any decision rendered about existing law can be made obsolete generally fairly quickly (In contrast to the current intransigence of the current US system where it is hard to pass primary legislation and virtually impossible to modify the constitution)
3) the court was only established in 2009, and evidently we haven't done much to empower it
A better comparison country might be places like Canada or Australia who do have a written (and harder to modify) constitution.
With ref to your point 1 and 2 , they are not needed. HRA 1998 covers that.
Point 3 - the supreme court was previously within the House of Lords and the one day they got their own building.
The primary and secondary legislation, and leading case law is fine in the UK. Its just that the Judges know what are really there for and routinely falsify the outcomes.
No one sees the case files, no one sees the transcript, only the judges judgement is published and that we all have to pretend is never anything other than perfect...
I run a non profit trying to change this, can talk about it for hours. Volunteers welcome!
https://worldpopulationreview.com/country-rankings/democracy...
They tried to steal an election four years ago by sabotaging the vote certification.
Remember: federal power is delegated from the states, not the other way around.
At the top of the Articles, it's pretty clear that the delegates of the states have come together to establish a league of states. At the top of the Constitution, it's explicitly stated that "We the People […] do ordain and establish."
Neither can states, either practically or legally.
https://en.wikipedia.org/wiki/Texas_v._White
The descent to authoritarianism usually begins with a party gaining enough power that it can override the checks and balances. Which often involves rewriting the constitution.
Why are people who prioritized public health during a temporary pandemic "sheep", but the President's supporters who demonstrate exceptionally cult-like behavior, "free thinking individuals"?
You can't have it both ways.
You nailed it. Both extremes are sheep.
So, deporting people to a third-country (another decision SCOTUS allowed this term) has a simple balancing test: stay here and be fine or possibly deport a Chinese citizen to El Salvador, which could cause incredible harm. So even ignoring th elikelihood of how the issue is decided, the balancing test favors enjoining third-party deportation.
So in this case, we had a universal injunction against an executive order removing birthright citizenship. This fails on two fronts:
1. As justices noted, it's highly unlikely that the order will be held up as constitutional. There is case law on this. The language of the 14th amendment is clear. The exact issue was discussed at the time. This has no hope in a non-corrupt court of succeeding.
2. Given other decisions, bona fide US citizens could be deported to CECOT and detained indefinitely with no due process. So it should be stayed because of the potential harm.
What SCOTUS did today was say the order revoking birthright citizenship was unlikely to succeed but it allows the administration to proceed anyway while hte issue is litigated in the courts, which could take years.
That's how corrupt this court is.
People have been fed this propaganda that Supreme Court justices are apolitical legal scholars who come down from their tower to issue judgements and keep things in check. It couldn't be further from the truth. Supreme Court justices are political appointees that dress up their political positions in legalese.
Example 1: this court invented the "major questions doctrine" whereby the court decides a matter is large enough that the court gets to override both the administrative and legislative branches.
Example 2: they also invented the "historical traditions doctrine", which is used selectively. For example, abortion was completely legal 200+ years ago. Ben Franklin even published at-home instructions on how to perform an abortion [1].
Example 3: in the wake of the Civil War there was huge violence not from the freed slaves but from white people towards former slaves, most notably with the Colfax massacre. The Supreme Court went on a white supremacist tear during Reconstruction, notably gutting the federal government's ability to prosecute hate crimes like Colfax [2].
Example 4: The Tiney court in the 1850s made what is perhaps one of the worst decisions ever made (ie Dred Scott), arguing from a legal and constitutional perspective that black people weren't "people".
Example 5: the Roberts court decided that moeny equals speech, gutting any legislation around campaign spending, which is a big part of how we got here.
Example 6: the presidential immunity decision will go down in history as one of the 10 or even 5 worst decisions ever made. It completely invented far-reaching immunity that essentially made the president a king, in a country that was founded on the very idea of rejecting monarchs.
Example 7: in 1984, the Supreme Court decided that in any areas of ambiguity in legislation, trial courts should defer to the agency empowered by Congress to enforce that legislation. This is the so-called "Chevron deference".
More than 40 years passed through 7 presidents (4 Republican and 3 Democrat) where both parties at different times controlled Congress. Congress declined to legislate away Chevron deference despite having ample opportunity to do so. Moreso, they intentionally wrote legislation with Chevron deference in mind yet this court decided to reverse Chevron. Yet on other cases, the court has deferred to Congress's inaction as intent.
Fun fact: Chevron v Natural Resources Defense Council was previously known as Natural Resources Defense Council v. Gorsuch [3]. That's not a coincidence. The suit involved Reagan's head of dthe EPA, Anna Gorsuch, mother of current Supreme Court justice Neil Gorsuch, who was humiliated and ultimately fired from the EPA while trying to destroy it from within.
[1]: https://www.npr.org/2022/05/18/1099542962/abortion-ben-frank...
[2]: https://www.theroot.com/what-was-the-colfax-massacre-1790897...
[3]: https://en.wikipedia.org/wiki/Natural_Resources_Defense_Coun...
Banning a nationwide injunction against birthright citizenship is inherently different. It’s a fundamental constitutional right we are talking about. Banning birthright citizenship should not be allowed to be enforced until SCOTIS decides the matter.
And yes, anything close to a majority nominated by the sitting president is a constitutional crisis, in a regime where one is supposed to check the other.
Yes, congress also abdicated its power. At the moment you have an executive branch ignoring law, precedent, and court orders, the legislative branch that is subservient to the executive and a judiciary in a state of civil war. None of that is right. None of the top-level institutions are working as they should.
And in this case they're refusing to do their actual job, which is defending the constitutional foundation of our country.
This is what things going to shit looks like. You may be completely justified in acting the way you are, it just so happens that that's of very little help. Spiraling is pretty tough to prevent at that point.
And yes, very obviously people have an easier time understanding things when they're better aligned with their thinking.
yes because the admin can appeal to a higher court; it at least pauses it so it can be more thoroughly evaluated as to its constitutionality
With the US Supreme Court strongly tilted toward all four, its an extremely difficult hole to climb out of.
I don't see a dictatorship (anytime soon). Not out of any abundance of optimism, but simply that all four of those constituencies and the Supreme Court's dominant wing itself, are highly aligned with each other, and would all lose out if it goes that far.
Nationwide injunctions were saught and used by (self-proclaimed) conservatives to slow down and stop Biden immigration policies.
One thing they didn't talk about was structural: the court system is split up into X circuits, and each circuit is independent. Normally each circuit uses rulings from other circuits as a basis for its judgements, but circuits are pretty independent from each other. The Supremes weigh in when the circuits conflicted with each other.
The national injunctions issued by the lower court allowed the lowest level court to have more authority than an appeals court. An appellate court's decision was only binding on its circuit. Why would a lower court have more authority than an appeals court? That makes no sense.
That's outside of all the reasoning the court used to stop this practice.
That said, if an affected individual brought a suit the may be able to get an injunction, since the court ruled that universal injunctions were inappropriate.
An appellate court considers the decisions of the courts below it, so it makes sense its actions would be restricted to those courts. What makes no sense is the newly possible situation in which an action violates the U.S. Constitution in one district but not another.
aren't those cases the point of the Supreme Court? when districts conflict it goes to the Supreme Court.
Now the government can choose to "lose" in some places and let the injunction stand. Then, in all other locations in the country, the constitution of the United States is quite literally different in perpetuity.
And it's not even by-locality, sans cases brought by a state government. SCOTUS has defined injunctions as by-litigant. So now two babies born next to each other in the same hospital to visa parents can have different naturalization statuses based on if those parents had sued in the right district court or not.
That's not new. It's called a circuit split, and generally results in the cases being combined when SCOTUS hears them to sort out the difference.
Through what legal avenue?
So yeah. Do a "water the tree of liberty with the blood of tyrants," already. The gun people were more than willing when they thought a Democrat was stealing their votes or Bill Gates was putting microchips in vaccines.
https://news.ycombinator.com/newsguidelines.html
That's one interpretation. On the other hand, I can understand her reaction at the conservative majority's repeated disrespect for stare decisis and existing case law, their tendency to craft non-textual and ahistorical reading of the Constitution to suit their short-term political goals, and their seeming bottomless capacity for subservience and deference to an obviously unlawful executive branch that has repeatedly evinced contempt for the judicial.
So, given the extraordinary depths that the majority is sinking to, her dramatic dissents are more justified than you think.
However, either way, its very hard to defend the view that the US constitution entails a democratic limit on abortion.
When the SC rules that something is required or forbidden by the constitution, they mean that it is beyond the power of congress to permit or prescribe it; it is is completely outside of democratic control.
The majority of the court today have a judicial philosophy which was common to the court for most of its history whereby one would only, in extremely certain cases, rule an issue entirely outside of the democratic process -- ie., decided entirely by the constitution alone, as interpreted by 9 people.
It isnt the job of the SC to make america moral, or require the whole of the US to follow how you wish things to be -- their constitutional role is to prevent the operation of democracy in extremely clear cut cases.
As for presidential immunity -- all constitutional centres of power (congress, the courts, the president) have immunities in the exercise of that power. These are required to enable them to function as balances of power against the other. Eg., if the president could arrest a judge for a bad judgement, the courts would not balance the executive.
The court confirmed only that the president has no more or less the necessary kind of immunity that each branch has -- and this is a clear requirement of the balance of power system set up in the constitution.
They left open, very widely, grounds on which a president acting outside of the duties of the office, could be prosecuted. And they clearly believed trump could be on at least some of those grounds.
I wonder if you misread my comment or just aren't aware of recent court history. The current conservative majority did not decide Roe, which is a case from 1973.
An example of a non-textual reading of the Constitution is last year's Trump v US case, wherein the conservative majority decided, apparently without any basis in law or Constitution, that the President is entitled to presumed criminal immunity for all official acts. You seem to have completely misinterpreted what this case was about: it's not about charging the president for "bad presidenting", it's about holding him accountable for criminal acts. Judges who violates criminal law are not exempt and enjoy no immunity.
Or how about Snyder v US, wherein SCOTUS decided to neuter the federal statute on official corruption, because their reading of "bribe" required money to be proffered before and not after the corresponding official act.
Or how about today's stay of the injunction against enforcement of the wildly unconstitutional attempt to void the 14th amendment, essentially giving the president the right to violate constitutional civil rates as long as he does it in states that support him against people who can't afford effective legal representation.
Today's result also does not prevent state-wide injunctions, indeed, that's what they court has basically suggested. And K's concurrence lists the innumerable number of ways the executive can be universally constrained.
Your entire understanding of the SC here, under trump, has been completely distorted by emotionally-disregulating media narratives designed for those purposes. This is not a pro-Trump court.
> federal statute
Congress can just change the statue. As it does a very large number of times every year.
Ah yes, the classic misogynist attack: I can't possibly understand the law because I'm too emotional. If only I were logical like you.
> Today's result also does not prevent state-wide injunctions, indeed, that's what they court has basically suggested.
Yes, state-level injunctions are allowed. All that this means is that different citizens will get different Constitutional rights depending on which state they live in. That's not how the Constitution is supposed to work.
> Congress can just change the statue. As it does a very large number of times every year.
What's the point of the changing the statute when SCOTUS insists on interpreting statutes in a way contrary to their text?
> That is the only impact of that ruling. It had nothing to do with criminal actions by trump.
It absolutely has to do with criminal actions. Notably, any official act cannot even be used as evidence in prosecuting a criminal act against the president. So if the president conspires with the AG to illegally prosecute a political enemy, that is unprosecutable. Since anything the president does is potentially an official act, this means that there in no way to hold the president responsible for his actions, which is the opposite of the intent of the Constitution, which provides for "checks and balances." Did you fail your high school civics class?
The Framers know how to provide immunity, as they do in the Speech and Debate clause. You may have a reason for supporting presidential immunity, but you can't deny that there is no basis for it in the Constitution. SCOTUS made it up, precisely at a time when their favorite president was found in flagrant violation.
Doesn't that require an appeal? Or are you saying they'd go put a policy or law on hold even if there wasn't an open case after a lower judge ruled against them and the government chose not to appeal so as to not risk losing more broadly.
Seems like the takeaway here for any would-be executive-overreachers is "lose a couple cases affecting a handful of plaintiffs and ignore those loses."
IIRC the general trend for getting a class certified for a class action is also in the "make it harder to do" direction.
It's important to remember here that states are relevant parties to these suits against the federal government, and there are enough of them to enjoin any practical excerise of executive action.
The SC has basically asserted that only it will, temporarily or permanently, review those cases where there is a federal-level split on these issues requiring a universal solution.
I have a feeling he's also hinting that the SC will, in light of this, look at how it handles temporary orders -- he has, at least said, it is now obligated to be very proactive in these areas and take on all such temporary requests to enjoin the executive
There's also the APA question, I don't fully understand judicial review in these cases -- but iirc, the APA grants courts to order the executive to stop (or to take) action on such policies. So when the EO has a "policy implementation" people can bring suits under the APA to enjoin, which is equivalent to a universal injunction.
It's hard to believe it's so innocuous given that (a) it is such a new approach to the issue for a not-new feature of US law and (b) the broader literature being pushed by the people pushing for this change.
Instead it feels like the song and dance around how some Senators would try to get SC justice nominees to say they wouldn't overturn Roe v Wade - distractive performance that's utterly non-binding and an obvious smokescreen.
Ironically, imv, I think in this case, they didnt. This was, imv, a case where a universal injunctions was actually within the power of the disctict court -- because (and here Sotomayor is correct) the states were being obligated to take on burdens that "crossed state lines" and a complete remedy to relieve them of these burdens actually requires a universal injunction. So, imv, under the history of what equitable remedies are supposed to do, this would be one rare case where the action of the courts could be legally defensible.
However, the SC was extremely fed up with district courts sending inumerable number of cases their way -- trigger happy judges at the distict level deciding they're going to rule for the whole US in a federal system. So, by this point, they've tried many times to stop it, and it hadnt worked.
Here all they said is that you can have UIs only where congress makes explicit that courts have this power. They have done something kinda similar in the APA (creating judicial review of exec action), and can do again here (eg., a democratic congress could give the power in immigration cases; I think its plausible something like this happens). They also themselves retain the right to make such orders.
So they have only really moved where in the system such action is taken, retaining district court's rights to still -- very broadly -- give quite wide injunctions. And congress still has the power to empower the courts (though, as per usual, Thomas indicates he's on crazy pills and implies he would prevent congress from doing that -- that's not a serious outcome though).
Given the problems they faced with district courts, something had to give. They were persuaded, plausibly correctly, that there are enough avenues to prevent this executive overreach without empowering the lowest rung of judges to rule for the whole of the US.
> However, the SC was extremely fed up with district courts sending inumerable number of cases their way -- trigger happy judges at the distict level deciding they're going to rule for the whole US in a federal system. So, by this point, they've tried many times to stop it, and it hadnt worked.
...so you were lauding a "Some of you may die, but it's a sacrifice I am willing to make" opinion?
We're talking citizenship here, in a time when the executive branch is deporting people as hastily as possible to prevent judicial review. But the supreme court was "extremely fed up" and took a stand...against universal injunctions. How "non-hysterical" of them.
Many states will have state-wide injunctions, and there will be a nation-wide class action suit to go thru the courts, and if there's any executive policy on this, it will receive judicial review.
The SC will also, whilst this is going on, intervene an basically issue a universal injunction as soon as the executive takes any issue whatsoever with this process.
The executive order literally orders agencies not to recognize citizenship for children born in the US after February 19th to parents that aren't citizens or permanent residents. That can now proceed if you weren't personally covered by the three existing injunctions, so not sure what you're talking about.
> However, the SC was extremely fed up with district courts sending inumerable number of cases their way
Well hold on then.
So you think the Court was wrong in this case? That they were just on tilt? Because if this case is a case for a universal injunction then does the executive have standing to ask about that issue here?
But if Sotomayor is correct on the relevance of a universal injunction here, then why is your "non-hysterical reaction" defending the decision instead?
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I also find it hard to agree with "judges are creating problems" vs "an increasingly aggresive executive is creating problems." The legislature hasn't been able to do much for a long time because the splits are so close, so presidents try to do more directly. Is enabling that despite how closely split the legislature is ANYTHING like in line with how the US government system is supposed to work?
Cause really, awww, they have more cases than they used to? Welcome to the computer driven future, it sucks for all of us, don't make us suffer because you're tired of it.
You can either try to do this and roll the dice again on letting district courts interpret this judgement, or just say, basically no -- if you want to do this you have to come to us (or go via one of the other mechanisms). Given there are ~25 recent cases of this in total, its not a very significant number -- but the effects are extremely significant.
They chose the lesser of two evils, and in this lesser world, basically everything is still fine. You can still get the right outcomes.
This is the actual job of the court. There is no right answer. There is only what judgement they can write and what effects it will have, and whether those are the most consistent with the spirit of the constutional order (or statutory order) that has been setup.
its very common for them to rule, "in cases of doubt, just get congress to pass a law allowing this to happen"
They very often actually do amend laws due to SC rulings. Many laws are passed every year, and its very common to see amendements explicitly reply to tell the SC to undo its actions in cases where they've asked congress to be clear.
Just because I think there's a read of "complete equitable remedy" in this case which plausibly allows a district court to issue a UI, does not mean that the SC wasn't right to set a standard which precludes it. Or that asking congress to make this possible isn't the right position for the court to take.
You have to remember that congress is the democratic legislative body, not the courts. Having district courts intrude on US-wide implementation of congress' laws (via the executive) should really require congress to authorise that.
And in any case, they have in the APA -- and the SC can still do it.
You can of course, also not take up the issue on this case. I can't find the article offhand, but I believe Steve Vladeck made this point that the SC has passed over a number of egregiously bad universal injunctions, handling them entirely on the shadow docket, and decided to grant full cert and a hearing on this case.
You can maybe argue that that's good in the sense that they're making a strong stand that even in the best example this is disallowed, which is clearer precedent. But also they could have picked a "better" case in the sense of it being a clearer misuse, and used that as the vehicle for the same ruling. Using a Kacsmaryk injunction for the same ruling sends a very different message than this case.
It's clear K's concurrence was written as a playbook for how to get to "the right outcome" in this case, and it will be followed. I suspect if that playbook wasnt available, they would have had a much harder time with getting to a judgement.
You can see the relevant law here: https://www.law.cornell.edu/rules/frcp/rule_23
These injunctions are used in cases where the judge believes "irreparable harm" harm is imminent for a large group of people. It is not realistic to expect every person (or at least one person in every state/district) to hire a lawyer and argue the case to protect themselves.
What a lovely way to frame a statement and put down people who hold a multitude of opinions that you do not share.
I don't take people who engage in this emotionally elevated reaction to the issue to have a different opinion, I take them to have no opinion at all -- because their reaction isn't an evaluation of the judgement.
All i'm saying is, "before you go ham on emotionally disregulation based on media reports, go read a few pages of the actual judgement
It's just civil rights and citizenship. Why can't they all be as detached and unimpacted as rich old guy Kavanaugh?
Kavanaugh is good to read on any topic - his writing is clear and often easily understandable by the layman. Gorsuch is an excellent writer as well. Those two are imo the best writers currently among the justices.
It's important to read his stuff too because it seems to gain more acceptance as time goes on.
Your points on Sotomayor are well taken, her dissents are often way over the top. However I'm starting to think Justice Jackson is potentially worse when it comes to histrionics
"The court’s decision to permit the executive to violate the constitution with respect to anyone who has not yet sued is an existential threat to the rule of law,” Jackson wrote. “Given the critical role of the judiciary in maintaining the rule of law … it is odd, to say the least, that the court would grant the executive’s wish to be freed from the constraints of law by prohibiting district courts from ordering complete compliance with the constitution.”
Reacting to a (female) judge assessing that there is an existential threat to the rule of law, in an administration that has done everything to break through the boundaries of law and openly violates it is hardly "hysteria", especially when there is a track record of robbing people of due process, which is literally and precisely the executive asserting its supremacy over the judiciary by robbing it of the opportunity to make a ruling.
If you read K's concurrence, you'll wonder why there is any issue at all. Since, roughly, there isn't one -- there are a very large number of ways this EO can be challenged universally without requiring UIs
I love this. “Everybody that disagrees with me is hysterical and it is actually the dissent’s fault” is a fantastic take. It is literally impossible to simultaneously disagree with you about this and also be of sound mind. I feel like you could have worded this a tad differently, “I am very smart. Possibly the smartest, and the sanest. I am superlatively smart and sane, and my brain is very good.” would have been more succinct.
None of this is grounded in the details of the ruling. It's a symptom of how the dissent has been presented in the media.
I cannot see on what basis my comment is wrong.
What? Seems like you're working backwards from wanting to spout about Sotomayor. This is exactly the gamesmanship she pointed out the majority allowed the Trump administration to play with.
Look at all these fun, lengthy, expensive legal remedies you can attempt over the next few years to protect your basic rights while the executive branch enacts plainly unconstitutional policies. Someone count the number of nationwide injunctions during the last four years where the majority could have stepped in to swat down the trend but didn't, but instead chose this one.
They can absolutely still strike down a law or executive branch policy.
This forces judges to actually do their job., instead of a nationwide injunction while they decide if they want to do their job later.
It doesn’t actually alter some fabric of our democracy or checks and balances, because the judges had already gone beyond what the constitution and congress prescribed.
Every issue that any partisan has with this country is because one branch isn’t doing their job.
The disruptive aspect of this - with concern to the birthright case that hasnt been ruled on yet - is just another example of this. Judges not doing their job.
It's impractical to rule on a subject before allowing parties to formulate coherent prepared arguments. Ruling on circumstantial evidence is a temporary stop, leaving the ruling up to an appellate which will invalidate it due to it being founded on circumstantial evidence. The injunctions were the practical way to allows all parties to formulate their case and make a legal reasoning for a ruling. Written law has to be incremental and narrow for interpretation. Otherwise it's an interpretive dance free for all in every case.
You have repeatedly implied that the jobs of Judges are something other than what you they are. Ofc you don't think they are doing what you think they should be. That's inconsequential.
A judge's job is to *judge*. They have basically zero ability to gather evidence, that is the responsibility for the parties to the case.
Would you have them issue a ruling before being presented with evidence? That makes no sense. But at the same time harm can come from not issuing a ruling. Thus we have injunctions--if a judge feels a case is likely to prevail they can issue an injunction prohibiting actions which inflict harm that can't be remedied by the resolution of the case.
What? That makes no sense. You can lookup which court and judge (or panel of judges) issued the injunctions. I do not understand why this non-existent anonymity would motivate a judge to issue an injunction.
> They can still strike down a law or executive branch policy.
Federal courts will only look at cases if there is a party with standing who engages in a lawsuit. If someone is being deported without due process, it will be hard for them to bring suit.
> This forces judges to actually do their job., instead of a nationwide injunction while they decide if they want to do their job later.
In general there are two reasons why these temporary restraining orders which have been issued. The first being that not doing so would cause irrevocable (or ridiculously difficult to revoke) harm (e.g., deporting people to a foreign jail). The second is that the TRO is used to stop something which seems illegal on its face (e.g. deporting people to countries from which they have never been).
> It doesn’t actually alter some fabric of our democracy or checks and balances, because the judges had already gone beyond what the constitution and congress prescribed.
It does alter the power dynamic of our democracy. Now, the executive branch can repeatedly perform illegal acts and only needs to stop its behavior in cases which have been decided. This checks and balances isn’t about stopping each other branch in a vacuum, the intent is to stop the government from overreaching on its citizenry. By crippling all of the lower courts, the Supreme Court has created a bureaucratic bottleneck for itself, allowing the executive branch to effectively DDoS the judicial system with case after case.
> The disruptive aspect of this - with concern to the birthright case that hasnt been ruled on yet - is just another example of this. Judges not doing their job.
No, it was the judge telling the executive branch that the executive branch must recognize the citizenship of children born on US soil. Instead of actually appealing the TRO on grounds of the legality of their actions, the executive branch has decided to complain about the legality of a court telling the executive branch to stop.
Who is supposed to tell the executive branch to stop doing something illegal, congress? Part of the point of the executive branch was to allow for some expedience, congress is slow. A judge is in a perfect position to tell the executive branch to stop, they don’t need to wait on committee and are not beholden to the president. Without the ability, the executive branch can quite literally do whatever the president wants.
- Marbury vs Madison, 1803
The quote is from a landmark case that established the judiciary as being the ultimate arbiters of the interpretation of the laws that have been passed by the legislature and signed by the executive.
They don't, they appeal straight up to the 9 judges that they actually have to appease
Do you feel that temporary checks (that can be easily reversed) to ensure the government is behaving in a constitutional way are ridiculous?
It causes the least harm to block the birthright executive order until it’s legality can be determined. Therefore it should be blocked nationwide.
[1] https://www.federalregister.gov/presidential-documents/execu...
I'd love to see higher requirements for issuing them, and an expedited appeals process to review them. I'd like to see protections against judge shopping (as endorsed by both Mitch McConnell and Chuck Schumer: https://www.texastribune.org/2024/04/11/judge-shopping-texas...) We know SCOTUS can move very fast when they feel like it.
You are incorrect.
You are clearly partisan. The GP says nothing about the number, but is instead the impact.
You should also consider normalizing the number of injunctions to the number of executive orders per term.
Weird that you didn't share this sentiment when commenting about terrible the US educational system is.
Not sure why I'm being downvoted. It's literally in the guidelines:
Off-Topic: Most stories about politics, or crime, or sports, or celebrities, unless they're evidence of some interesting new phenomenon.
Trump's court battles are hardly a new interesting phenomenon.
So is birthright citizenship