Yesterday the Supreme Court heard oral arguments on the nationwide injunctions issued by some federal judges blocking Trump’s “birthright citizenship” attempted overrule of the Constitution. By all accounts the Trump attorneys’ arguments were utterly shredded. Yet most of the commentary today is saying that the justices are “split” and that the Court may give Trump some of what he wants, even though chaos would ensue, and the birthright citizenship ban is blatantly unconstitutional.
The question before the Court, as I understand it, wasn’t about birthright citizenship itself but whether a federal district judge can issue a decision that affects the whole nation and not just that district. Universal injunctions sometimes can be problematic, such as when a Texas judge decided to ban the abortion pill mifepristone. On the other hand, no universal injunction would requires countless individuals to have to file the same suit to protect their rights against government overreach.
Also, it came out in the arguments that there are a ton of unanswered questions about how Trump’s birthright citizenship block would work if it became law. Who would decide which babies got to be citizens and which would be stateless? The hospitals? Or would states have to set up some kind of bureaucracy, or make all parents apply for citizenship for their babies? And then if birthright citizenship were still in effect in some states but not others, would a stateless baby gain citizenship by moving into a “birthright” state?
Ultimately, one assumes, the question of whether Trump’s block is constitutional would go to the Supreme Court. But what if it didn’t?
Several justices on Thursday also seemed to vent frustration that if the government keeps losing in the lower courts but decides not to appeal the underlying merits of the case to the Supreme Court, the justices would not have an opportunity to rule on the constitutionality of banning birthright citizenship.
“There’s nobody else who’s going to appeal, they’re winning. It’s up to you to decide whether to take this case to us” said Kagan, who served as solicitor general during the Obama administration. “If I were in your shoes, there is no way I’d approach the Supreme Court with this case.”
It’s also worthy of note that the four women justices, including Amy Coney Barrett, brilliantly grilled U.S. Solicitor General D. John Sauer, leaving him in little tiny bits that will take lots of vacuuming to get out of the carpet. The five men were all unusually quiet.
Yeah, I wouldn’t mess with them, either. Notorious RBG must be proud. I am reading that MAGA is furious with Barrett.
It’s possible the justices will decide to block Trump’s birthright citizenship order at the same time that they put limits on universal injunctions. That might help Trump save face with a token win, although he’ll throw a temper tantrum anyway. A guy at the New York Times proposed that “it wouldn’t be surprising if the court finds a way to allow some national injunctions against sweeping presidential orders, and eventually rejects Trump’s. Among other reasons, the conservatives want to preserve the ability to overrule Democratic presidents.” So there’s that. But most of the commentary I’ve seen predicts the five guys on the Court will try to give Trump something. We just don’t know what.
Update: Other Stuff That Happened Today
Trump’s big, bad budget bill failed to make it out of committee. All of the Dems and some hard-right Republicans on the House Budget Committee voted no. The Republicans objected to the bill because it didn’t cut Medicaid enough. And there are at least some Republican senators who are nervous about the Medicaid cuts that were in the bill. I honestly don’t think this bill or anything remotely resembling it can go the distance. They’re going to have to break it up. But it may take a while to get to that realization.
Also today, the Supreme Court did something somewhat useful and indefinitely extended a ban on deportations under the Alien Enemies Act. The Associated Press:
Over two dissenting votes, the justices acted on an emergency appeal from lawyers for Venezuelan men who have been accused of being gang members, a designation that the administration says makes them eligible for rapid removal from the United States under the Alien Enemies Act of 1798.
The court indefinitely extended the prohibition on deportations from a north Texas detention facility under the alien enemies law. The case will now go back to the 5th U.S. Circuit Court of Appeals, which declined to intervene in April.
Alito and Thomas were the dissenters, naturally. But I hate these tepid little limited decisions. Just stop Trump from deporting people without due process, period.
DOGE attempted to take over the Government Accountability Office, which is part of the legislative branch. The GAO told DOGE to get lost.
A spokesperson for GAO confirmed DOGE’s outreach, and reiterated that “as a legislative branch agency, GAO is not subject to Executive Orders and has therefore declined any requests to have a DOGE team assigned to GAO.”
In an announcement to employees posted Friday afternoon, GAO leadership said they sent a letter to Acting Administrator of DOGE Amy Gleason and notified members of Congress, according to a copy of the notice shared with NPR by an employee not authorized to speak publicly.
“Did I understand you correctly to tell Justice Kagan that the government wanted to reserve its right to maybe not follow a Second Circuit precedent, say, in New York, because you might disagree with the opinion?” Barrett asked Sauer point blank.
Got that, folks? That's Trump appointee Barrett citing a remark to Kagan that maybe the DOJ would or would not follow a Second Circuit order. And from what I read, she kept at it. drilling down on the implication that POTUS is only bound by decisions of the USSC (which they are currently ignoring.) Which brought up the question that if DOJ can ignore the Circuit Court, and they are losing consistently at that level, WHY would they ever appeal to the USSC?