Trashing the Written Constitution in the Name of More Deportations
The six-member conservative majority handed down a decision that sidesteps the main issue in the Trump administration’s campaign to rewrite the birthright citizenship clause of the Constitution — that it is in black and white in the founding document. Trump did so by executive order, not a law.
Instead, the 6-3 decision focused narrowly on whether a district court judge considering a challenge to Donald Trump’s actions can set a national injunction to halt action while the full case proceeds. Ironically, this decision does the opposite, lifting the injunction after the next 30 days, to allow deportations to proceed — until the full case is heard, likely in the fall.
While the court’s decision still allows individual, regional or national injunctions for “class-action” cases, which are not defined, it opens the door to other Trump executive orders that may pay little attention to legal constraints by saying district court judges in one part of the country cannot halt them everywhere.
In practical terms regarding birthright, actions to ignore whether a migrant was born in the United States can now be ignored — temporarily at least — in 28 states where there was no challenge, for example.
Naturally, Trump himself called an immediate press conference, flanked by Attorney General Pam Bondi and her deputy, Todd Blanche, to heap praise on the court majority, Justice Amy Coney Barrett for writing the decision, and himself for thinking it a wonderful idea to trash the written Constitution in the name of more deportations.
Justice Sonia Sotomayor called the decision a “travesty for the rule of law.” In a separate dissent, Justice Ketanji Brown Jackson was even harsher.
But what the decision did not do was to say the Constitutional right to citizenship upon birth in this country is wrong or magically no longer applicable. Challenges to the birthright citizenship executive order are in appeals courts, headed for the Supreme Court should Trump lose. There is no pending case on the merits of the birthright citizenship executive order at the Supreme Court.
As it stands, the decision is an incredible disappointment for ducking the central question, now seemingly a pattern for this court to find ways to uphold Trump’s broad challenges to institutions, laws and protocols. It is a continuing disappointment that this court does not appear to consider the practical consequences of its decisions.
Practical Impacts
In the meantime, of course, the issue will return to those same lower courts, where details like who determines citizenship in the hospital birthing suite must be worked out.
It is a remarkable set of reasoning for the conservative justices who have relied so much on history and written legal language now to simply ignore what is written in favor of discussing court remedies once a challenge appears.
And, of course, this will not be limited to the birthright question. Trump has issued hundreds of executive orders about immigration, energy, education, health, business and trade, and on silly stuff like the use of plastic straws.
It could lead to a chaotic breakdown of civil rights generally and feed a growing outrage over what is perceived as a slide from democracy into authoritarian rule by a single, unchecked leader.
When a group or a state attorney general or even a coalition of interests feels harmed by an administrative action, it can file suit the local federal district court. It is almost standard for the plaintiffs to ask that the practice creating the perceived harm be ordered to stop immediately while the case proceeds. Judges weigh the extent of claimed harm and issue such injunctions, even if temporary. The actions in the birthright case and in many others arising from executive orders is that the harm is not limited to one person or one neighborhood or one state. The policy is nationwide, and so are the injunction orders.
That is the tool under pressure in this decision. It still allows for a class of employees or doctors or, presumably organized migrants, to seek injunctive remedy as a group. The chances of that happening, are far slimmer than outraged partisans seeking the action through more friendly attorneys general. The chance that every migrant individually affected could effectively challenge the order is zero.
End of Season
This is end-of-season for the Supreme Court: In other released rulings, the court upheld the constitutionality of a task force that recommends which preventative care services health insurers must cover, rejected a challenge to a Texas law that seeks to limit minors’ access to online pornography, and ordered public schools in Maryland to allow parents with religious objections to withdraw children from classes in which storybooks with L.G.B.T.Q. themes are discussed.
The court itself has had a rocky year, with a series of embarrassing disclosures about Justices Clarence Thomas and Samuel Alito receiving payments from partisan interests, about the rising ideological dissention within the court, and about the increasing reliance on “shadow docket” decisions for which no explanation or reasoning is offered.
Overall, the conservative bent of the court majority has resulted in expanded powers for the presidency and the loss of independence for federal agencies, and the now written assumption of protected innocence for most official acts undertaken by a president.
Prospects are good that Trump will have one or two more chances over the next three and a half year to bolster that conservative majority with new appointees, whom he promises will be yet more politically loyal to whatever policies Trump supports.
That, too, is a supreme disappointment.
