Be Careful What You Wish For
I've written about this subject before, where I used the phrase: "Be careful what you wish for" in the opening paragraph, so I thought I'd just use it as today's headline. Previously, I had written about an effort in the Senate to introduce a bill that would remove the ability of federal judges below the level of the Supreme Court to issue nationwide (or "universal") injunctions which banned government behavior while a case was being litigated. Here's how Republican Senator Josh Hawley explained the need for the bill he intended to introduce:
What needs to happen is one of two things: Either the Supreme Court needs to intervene and make clear there's only one court that can issue rules for the whole country, that's the Supreme Court, that's why we only have one of them. [O]r, if they won't do that, Congress needs to legislate and make clear that district courts do not have the ability to issue these kinds of injunctions.
Today, the issue was indeed argued before the Supreme Court. And the conservatives on the court seemed open to perhaps limiting or removing the ability of lower-court judges to issue such universal injunctions. To which I again say: Be careful what you wish for.
This is one of those political issues where the partisans on both sides of the aisle switch their respective stances depending on which party currently controls the White House. When there's a Democrat in the Oval Office, Republicans are all for universal injunctions (especially on subjects such as abortion). When the shoe is on the other foot, Democrats welcome universal injunctions on their own issues, to rein in a Republican president.
The underlying case was not what the Supreme Court was addressing today, it's important to point out. What brought the question to the high court was Donald Trump, in the first days of his second presidential term, issuing an executive order which attempted to overturn over a century's worth of Supreme Court precedent on the Fourteenth Amendment's guarantee of "birthright citizenship" (any person born on American soil is automatically a U.S. citizen, no matter who their parents are or what their status may be).
The birthright citizenship constitutional question was barely addressed today, since the appeal the Trump administration brought wasn't on the merits of the case but rather an objection to lower judges who have all issued a nationwide halt on the implementation of Trump's new policy. It almost seems a foregone conclusion that Trump is going to lose on the constitutional question, since (as the New York Times pointed out) during the oral arguments today: "No justice expressed clear support for the legality of the order." Every lower court has ruled that Trump's policy clearly violates the Fourteenth Amendment as well. So it seems to be a case Trump is going to lose no matter what.
The big question is what happens in the meantime? It may take years for the individual cases to work their way through the federal system, so what happens while all of that is playing out? Should the Trump administration be able to implement their new policy for everyone except the people who have sued him, or should the entire policy be put on hold until a final decision is ultimately handed down?
There used to be a legal tenet that judges, when considering whether to grant injunctions in specific cases, heavily lean towards the status quo ante -- what the situation was before the new policy appeared. Which makes sense, because the parties suing the government in court cases always allege they are being harmed. If the harm is held in abeyance not only for them but also for everyone else covered, then the courts can make their decisions knowing that until they do things will remain the same -- hence, no further harm will happen while they make up their minds. However, this legal concept has become somewhat tattered of late, as the Supreme Court seems much more inclined to just rule in nakedly partisan ways without concerning itself with possible interim harms that could occur.
While the Supreme Court is not likely to rule on the merits of the Fourteenth Amendment argument, they are going to have to grapple with what will happen while these cases wend their way through the federal system. Should individual federal judges be able to issue universal injunctions, or should they be limited to injunctions which only cover the plaintiffs before them or (in the case of states suing) whole individual states? Or maybe the judges should only be able to issue injunctions for their own districts?
The problem with this scenario is that on questions of basic constitutional rights, there would be no way to prevent a president from grossly violating the Constitution except with a very piecemeal system. Thousands of identical cases would have to be brought, and in the confusion we could wind up with a situation (which was brought up today) that we haven't had since the Civil War -- where a person may have constitutional rights (citizenship itself) in one state, but have those rights disappear when they travel to another state. Which would be utter chaos, obviously. Even if the administration lost in case after case after case, it would still be free to violate the constitutional rights of everyone who hadn't yet filed their own court case, as two of the justices pointed out:
"The argument here is that the president is violating not just one, but four established Supreme Court precedents," Justice Sonia Sotomayor said, but that it may continue violating those precedents for anyone who doesn't individually bring and win a case in court.
This creates a "catch-me-if-you-can" problem, Justice Ketanji Brown Jackson said, "where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights."
There's an even deeper problem with this scenario as well, that was also pointed out during the oral arguments today. Let's say the Supreme Court rules that district judges can't issue universal injunctions, but instead limits them to injunctions which only cover certain people (those who have sued) or certain geographical areas (their own district, or a whole state which has sued). What would happen if the administration then appealed the decision and lost at the appellate court level -- but then did not file an appeal with the Supreme Court? The administration would have to accept a partial loss in an individual case, but there would be nothing stopping them from continuing to apply the new policy to everyone else in the country. Since you can't appeal a case you have won, none of the plaintiffs would be able to appeal to the Supreme Court either, which would leave the same patchwork of differing laws and policies from state to state across the country. In some states, people born on American soil could be rounded up and deported to a country they have never actually been in, while in other states they would enjoy full American citizenship. The new policy -- in a kind of "half a loaf is better than none" scenario -- would still be implemented in at least parts of the country, at least until someone successfully sued in each and every federal court district. If the Supreme Court were to be the only court which could issue nationwide injunctions, then it would create a perverse incentive for an administration to refuse to appeal any individual case to the high court when they lose.
The Supreme Court has a few other options that it appeared to consider today. Instead of them banning all district court judges from issuing universal injunctions, they could allow it only in cases which were brought as class action cases (rather than having individual plaintiffs, having instead a broad class of plaintiffs). It's more difficult to file such cases, as it involves having the "class" certified beforehand, it is worth mentioning. But that would at least allow for a class (such as "all non-citizens who may give birth in the future on American soil") to get a universal injunction which covers everyone.
Or the Supreme Court could narrow the ability of district judges to issue universal injunctions only for cases that involve basic constitutional rights. It's an open question how effective this would be, since every plaintiff would claim their basic constitutional rights were being violated, in order to qualify for a possible nationwide injunction. But it would be seen as somewhat of a compromise, even if it were legally muddy.
But again, I would caution both sides to be careful what you wish for. Democrats would do well to remember how Republicans filed all kinds of cases in friendly court districts down in Texas during the administration of Joe Biden, primarily (but not exclusively) on abortion rights. As for Republicans now urging the high court to put a stop to universal injunctions, they would do well to consider a hypothetical possibility raised in court today:
Allowing the government to deny citizenship to U.S.-born children of noncitizens while they seek individual relief from an unconstitutional act by the president is similar to requiring every individual gun owner to sue on their own if a president ordered the military to take all guns from U.S. citizens, Sotomayor argued.
Gun rights aren't the only thing conservatives cherish, it's worth pointing out. There are plenty of other constitutional questions that could be brought into play if a Democratic president decided to issue a flood of executive orders willy-nilly. In considering what you think about this particular case, it is always a good idea to consider what could happen when the political shoe is on the other foot.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
Interesting commentary, CW...
I am going to answer it specifically in the morning..
But I wanted to share with you some interesting information along the same lines..
The claim that the 14th Amendment automagically confers U.S. citizenship to any child born on U.S. soil is a misinterpretation that ignores the amendment’s nuanced requirements and oprigins.
The Citizenship Clause, enacted in 1868, states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
This clause, as detailed in a December 6, 2023 editorial, establishes two prerequisites: birth within U.S. territory and being ALSO “subject to the jurisdiction” of the United States.
The latter condition explicitly limits automatic citizenship, refuting the notion of universal birthright based SOLELY on location of birth.
The phrase “subject to the jurisdiction thereof” was rooted in the Civil Rights Act of 1866, which granted citizenship to those born in the U.S. “not subject to any foreign power,” excluding Native Americans not taxed.
The 14th Amendment reframed this positively (as opposed to the CIVIL RIGHTS ACT OF 1866, which framed it NEGATIVELY) but its intent, as debated in Congress in 1866, was to secure citizenship for freed slaves, not to extend it to all born on U.S. soil, particularly those with foreign allegiances.
For example, children of foreign diplomats, who owe allegiance to their home countries, are UNIVERSALLY agreed to be excluded from automatic citizenship due to their parents’ diplomatic immunity, as clarified in the case of Siavash Sobhani. By having DIPLOMATIC IMMUNITY, Sobhani's Parents were NOT subject to the jurisdiction thereof, the United States.
Sobhani’s U.S. citizenship, granted at his 1961 birth, was revoked in 2023 because his father, an Iranian diplomat, was not subject to U.S. jurisdiction (Washington Post, 2023).
Supreme Court precedent further supports this restrictive interpretation.
In United States v. Wong Kim Ark (1898), the Court upheld citizenship for a child of Chinese permanent residents, emphasizing their full subjection to U.S. law, unlike temporary visitors or illegal immigrants.
Conversely, Elk v. Wilkins (1884) denied citizenship to a Native American born on U.S. soil but not fully under U.S. jurisdiction, reinforcing that birth alone is "NOT SUFFICIENT".
The Court in Slaughter-House Cases (1873) noted the clause was not meant to include children of “citizens or subjects of foreign States” without permanent ties. Which OBVIOUSLY means ILLEGAL IMMIGRANT CRIMINALS...
The State Department’s misapplication, as seen in Sobhani’s case, where passports were issued to children of non-residents, stems from bureaucratic errors, NOT a constitutional mandate.
Judge Richard Posner’s opinion in Oforji v. Ashcroft (2003) suggested Congress CAN limit birthright citizenship for children of temporary (OR ILLEGAL) aliens without violating the Constitution.
ILLEGAL IMMIGRANT CRIMINALS, often retaining foreign allegiance, do not automatically confer citizenship to their children, as their jurisdictional status is ambiguous (Heritage Foundation, 2018).
Congress has NEVER extended the clause to tourists, students, or illegal immigrants, unlike its 1920s clarification for Native Americans.
The 14th Amendment’s intent and judicial interpretations clearly REJECTS automatic citizenship based solely on birthplace.
"These are the facts of the case. And they are undisputed."
-Captain Smilin' Jack Ross, A FEW GOOD MEN
the fugitive slave issue is a pretty solid parallel. can you imagine a whole class of children kidnapped and moved to a different state so they can be deported "legally?"
JL,
the fugitive slave issue is a pretty solid parallel.
Only if you actually MAKE an argument.. :^/
can you imagine a whole class of children kidnapped and moved to a different state so they can be deported "legally?"
Can you explain the relevance???
WITHOUT being a jerk, I mean.... :D
This is the third commentary I've read on this Supreme Court hearing about the idea of a single federal court issuing an injunction with national scope, outside of its own district or the petitioning party or class.
And I admit, I just can't keep up. I can't process the intricate legal details that Chriss lays out as clearly as he can. If this happens, then that happens. But if the other thing happens, the original party wishes it had never been born, so to speak.
I particularly loved the one where, if I understood it, the Feds under Trump DON'T appeal a case they lose, because that would give the Supreme Court an opportunity to issue a national-scale ruling. By NOT appealing, the Trumpsters retain the ability to violate the Constitution in every federal district in which they DIDN'T lose their case!
My head spins. Thanks for trying, Chris!
Speaking of fugitives, I vividly remember when The Casanova Killer Glen Rogers was arrested here in Kentucky 30 years ago. He was executed in Florida today and he thanked Florida Man for making America great again on his way out. Maybe Fat Donny will pardon him AND Diddy!
Be careful what you wish for
Kid Rock’s Big Ass Honky Tonk Rock N’ Roll Steakhouse's undocumented workforce fled the scene leaving no one in the kitchen to cook the food. Thanks Trump.
Ah, yes... the de facto impeachment of the lower court judges.
Lower court judges? We don't need those stinking judges. If you can't beat these rogues with your lawless prima facie unconstitutional Executive Orders, you've got to find another way to rein them in... whip them, beat them, take away their charge cards. The Republicans in the Legislative Branch have relinquished their power to the Executive so why can't these buggers in the Judicial Branch just roll over and play dead like the Castrated Caucus? How's a wannabe dictator supposed to rule a country with all these pesky inconvenient constitutional rights? *whispers* Except Texas, you know? Don't mess with Texas. /sarcasm
This is one of those political issues where the partisans on both sides of the aisle switch their respective stances depending on which party currently controls the White House. When there's a Democrat in the Oval Office, Republicans are all for universal injunctions (especially on subjects such as abortion). When the shoe is on the other foot, Democrats welcome universal injunctions on their own issues, to rein in a Republican president.
Kinda like killing the filibuster, eh?? :D
I seem to recall reading an article at the beginning of all this that one of the woke progressive Justices (Kagan or Sotomayer, not Justice Jackson Browne) was dead set against having peon judges issue nationwide injunctions..
But, of course NOW that those nationwide injunctions are HELPING the woke progressive agenda, NOW that justice LOVES nationwide injunctions..
Which simply proves the point... Even with a Justice of the Supreme Court of the US...
Hypocrisy. It's not a bug in woke progressive Democrat programing. It's a feature.
I am not really worried about it...
Considering the line of questioning from all the Justices that supports PRESIDENT Trump and considering the legislation that's been approved in the House that will neuter peon activist woke progressive Democrat judges, PRESIDENT Trump's MAKE AMERICA GREAT agenda will be back on track soon enough..
But the detrimental effects on the woke progressive Democrat Party of Democrats actually going to court to protect scumbag terrorists and wife-beaters and gang-bangers and illegal immigrant criminals!!!
THOSE effects are going to continue to grow and grow and push the woke progressive Democrats deeper and deeper into the political wilderness that they'll never see the light of day for another hundred years!!! :D
Isn't it just a GREAT time to be an American, eh!!?? :D
PRESIDENT Trump's MAKE AMERICA GREAT agenda will be back on track soon enough..
Interesting side note...
Ya'all laugh and sneer at the MAKE AMERICA GREAT AGAIN slogan...
“I believe that together we can Make America Great Again!!”
-Bill Clinton, 1991
Once again....
Hypocrisy. It's not a bug in Democrat programming. It's a feature
SILENCE GIVES ASSENT
-Woke Progressive Democrats
Michale
1
The claim that the 14th Amendment automagically confers U.S. citizenship to any child born on U.S. soil is a misinterpretation that ignores the amendment’s nuanced requirements and oprigins.
Incorrect... of course, assuming by "automagically" you mean "automatically," unless and until the Supreme Court of the United States determines otherwise, that is exactly what the 14th Amendment actually means as upheld by multiple courts for centuries, of course, including the SCOTUS.
The Citizenship Clause, enacted in 1868, states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
Incorrect. The "Citizenship Clause," the first clause of the first section of the 14th Amendment to the United States Constitution states: "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." However, you were oh so close but not factually accurate.
This clause, as detailed in a December 6, 2023 editorial, establishes two prerequisites: birth within U.S. territory and being ALSO “subject to the jurisdiction” of the United States.
Oh, if only an editorial opinion (regardless whatever date) had any bearing whatsoever on the opinions of the United States judiciary regarding the Constitution.
The latter condition explicitly limits automatic citizenship, refuting the notion of universal birthright based SOLELY on location of birth.
So says an editorial opinion of December 6, 2023, which in no way whatsoever does a single thing to negate the current opinion of the Supreme Court of the United States, but thank whichever chatbot who provided that opinion to you for that editorial.
Judge Richard Posner’s opinion in Oforji v. Ashcroft (2003) suggested Congress CAN limit birthright citizenship for children of temporary (OR ILLEGAL) aliens without violating the Constitution.
Opinions like that are likely why Judge Richard Posner never became a Justice on the Supreme Court. The idea that Congress could limit birthright citizenship despite the longstanding opinion of the SCOTUS based on the unambiguous words of the Constitution is laughable. Anyone who believes otherwise should try actually reading the longstanding opinion of the SCOTUS. There has never been a case that has gone against the decision of the SCOTUS, including four recent decisions in 2025 alone.
ILLEGAL IMMIGRANT CRIMINALS, often retaining foreign allegiance, do not automatically confer citizenship to their children, as their jurisdictional status is ambiguous (Heritage Foundation, 2018).
Of course immigrants (illegal or otherwise) do not confer citizenship to their children born in the United States; however, the United States Constitution actually does according to the longstanding interpretation of said Constitution by the SCOTUS.
Congress has NEVER extended the clause to tourists, students, or illegal immigrants, unlike its 1920s clarification for Native Americans.
Congress has had no need to extend the 14th Amendment to the children of those you list because there's obviously no need. Should Congress wish to change the unambiguous language of the Constitution as interpreted by the SCOTUS, they need to TYA and propose an Amendment to the Constitution because an Executive Order of the President that attempts to rewrite the longstanding meaning of the Constitution ain't going to cut it.
The 14th Amendment’s intent and judicial interpretations clearly REJECTS automatic citizenship based solely on birthplace.
You know what they say about opinions, right? EGO: Everybody's Got One, and the only one that matters in this country is that of the Supreme Court, and the longstanding current opinion of the Supreme Court absolutely states otherwise.
Incorrect... of course, assuming by "automagically" you mean "automatically," unless and until the Supreme Court of the United States determines otherwise, that is exactly what the 14th Amendment actually means as upheld by multiple courts for centuries, of course, including the SCOTUS
Not factually accurate... The etymology of the 14th Amendment being formed from the 13th Amendment proves beyond ANY doubt that the original intent of the 14th was to have TWO requirements for birthright citizenship..
The fact that the courts have been, for the most part, ruling incorrectly all these decades does not change the overriding FACT...
Birthright citizenship requires TWO components, not just the one locational-based component...
Incorrect. The "Citizenship Clause," the first clause of the first section of the 14th Amendment to the United States Constitution states: "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." However, you were oh so close but not factually accurate.
You have been relegated to Punctuation/Grammar Lames???
"Oh how the mighty have fallen..."
-Guinan, STAR TREK: THE NEXT GENERATION
Oh, if only an editorial opinion (regardless whatever date) had any bearing whatsoever on the opinions of the United States judiciary regarding the Constitution.
It did...
Opinions like that are likely why Judge Richard Posner never became a Justice on the Supreme Court. The idea that Congress could limit birthright citizenship despite the longstanding opinion of the SCOTUS based on the unambiguous words of the Constitution is laughable.
And yet, here we are... :D
Ya'all ALSO thought that the idea that the SCOTUS would rule that the POTUS is completely immune from criminal prosecution for ALL OFFICIAL ACTS was "laughable"...
But then woke progressive Democrats pushed the issue and then, lo' and behold, the SCOTUS ruled EXACTLY that.. :D
Do you REALLY want to be put in ANOTHER position like that, for the THIRD TIME, claiming something is "laughable" and then, when it comes to pass, ya'all have to watch me gloat for months on end??
REALLY!!?? :D
Of course immigrants (illegal or otherwise) do not confer citizenship to their children born in the United States; however, the United States Constitution actually does according to the longstanding interpretation of said Constitution by the SCOTUS.
Interpretations change.. ROE v WADE comes to mind..
The simple fact is, ya'all are going to lose.. AGAIN...
Birthright Citizenship is going to go the way of the dodo, moderate Democrats, Headboard Harris and ROE v WADE...
Peon activist woke progressive judges are going to get their pee pees whacked and be put in their place...
And America will just keep getting greater and greater!!!
And woke progressive Democrats will keep being pushed further and further into the wilderness....
SO SAY WE ALL
Kick's response above completely ignores the etymology of Birthright Citizenship as it's roots were from the 13th Amendment which NEVER intended to allow citizenship solely based on place of birth..
The courts’ previous rulings on birthright citizenship, particularly United States v. Wong Kim Ark (1898) have been criticized for misinterpreting the 14th Amendment’s Citizenship Clause, diverging from its etymological roots in the 13th Amendment and the original intent of Congress.
So, this is not a new or radical interpretation.. It's simply PRESIDENT Trump having the cajones to do the right thing...
The 14th Amendment, ratified on July 9, 1868, was a cornerstone of Reconstruction, aiming to secure citizenship for freed slaves following the 13th Amendment’s abolition of slavery in December 1865.
The Citizenship Clause states: “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.” This clause was informed by the Civil Rights Act of 1866, which declared citizenship for those born in the U.S. “not subject to any foreign power, excluding Indians not taxed,” as detailed in Senate debates (Senate Records, 1866)
The etymology of the Citizenship Clause is deeply tied to the 13th Amendment’s legacy, addressing the post-slavery status of black Americans.
Congressional intent, as articulated during the 1866 debates, was to ensure freed slaves were recognized as citizens, not to create a universal birthright for all born on U.S. soil, particularly those with foreign allegiances.
The phrase “subject to the jurisdiction thereof” was meant to limit citizenship to those fully under U.S. law, excluding categories like children of foreign diplomats and Native Americans not fully integrated, as seen in Elk v. Wilkins (112 U.S. 94, 1884) which denied citizenship to a Native American born on U.S. soil but not subject to U.S. jurisdiction due to tribal allegiance.
There is simply NO VIABLE LEGAL PRECEDENT that would allow the interpretation that children of ILLEGAL IMMIGRANT CRIMINALS are automagically American citizens.
The ONLY one that Trump/America haters can point to is Wong Kim Ark that extended citizenship to a child of Chinese permanent residents, assuming they were fully subject to U.S. jurisdiction without adequately addressing the clause’s limitations.
This ruling, criticized by legal scholars, deviated from earlier decisions like Slaughter-House Cases (83 U.S. 36, 1873), which noted the clause excluded “citizens or subjects of foreign States” without permanent ties.
The case of Siavash Sobhani, whose U.S. citizenship was revoked in 2023 due to his father’s diplomatic status at birth (Washington Post, 2023), exemplifies the confusion caused by courts’ broad interpretations.
Sobhani’s initial grant of citizenship, later corrected, highlights bureaucratic errors stemming from misapplying the clause, as his father, an Iranian diplomat, was not subject to U.S. jurisdiction, aligning with the amendment’s intent to exclude such cases.
Legal opinions, such as Judge Richard Posner’s in Oforji v. Ashcroft (2003), suggest Congress could constitutionally limit birthright citizenship for children of temporary aliens, indicating the current interpretation is not immutable. Posner argued, “Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense,” supporting a narrower reading.
This aligns with the amendment’s historical context, where Congressional debates (Congressional Globe, 1866) emphasized citizenship for those without foreign allegiance, not tourists, students, or illegal immigrants.
The courts’ failure to adhere to this etymology has diluted the 14th Amendment’s purpose, originally rooted in the 13th Amendment’s emancipation efforts.
By expanding citizenship beyond freed slaves to include children of non-residents, courts have created a legal framework that does not reflect Congressional intent, as PROVEN as factual by the ongoing debates and the State Department’s inconsistent application, such as in Sobhani’s case.
This misinterpretation underscores the need for legislative clarity to realign with the amendment’s historical and constitutional roots.
We will see an end of birthright citizenship as we know it by the end of PRESIDENT Trump's second term...
I know this as certain and as factually accurate as I knew that Headboard Harris didn't stand a single solitary chance of winning the 2024 election..
The credibility and the facts are on my side...