Halls of Shrewd'm / US Policy
No. of Recommendations: 3
Let's take a quick look at this EO.
https://www.whitehouse.gov/presidential-actions/20...The first think I want to point out is that it applies only to births 30 days after the date of the order. (February 19, 2025, if I've counted days correctly.) So there is no retroactive revocation of citizenship.
My lay reading of this order is that Trump is taking a novel interpretation of the phrase "subject to the jurisdiction" of the US. Historically, this has generally excepted foreign diplomats, as they are not subject to US and State laws. The claim in this order is that this lack of jurisdiction extends to mothers who are not lawfully present in the US at the time of birth and to mothers that are present lawfully but temporarily.
I suspect this is going to completely fail. For the first part, all you have to do is find a mother present in the US illegally and in jail before, at, or just after birth. If they are in jail, they are apparently subject to the jurisdiction of the US or a State. If they are not subject, why are they in jail?
For the second test - here lawfully on a visa or similar - again, find someone in jail. That would seem to be evidence of jurisdiction. There might even be some agreement to be subject to jurisdiction buried in the visa application or a treaty.
Diplomats - who are not subject to US jurisdiction - are not jailed. They are asked to leave. I seem to recall some formal process to revoke their status as diplomats, so if they don't leave they can be jailed.
--Peter
No. of Recommendations: 2
I posted a LegalEagle video on this a few days ago. Basically, he's flying against the Constitution, and about 150 years of established law and precedent.
Which is why they have been attempting to frame it as an "invasion" for several years now. If it really is an invasion, any children of the invading forces born on US soil are NOT citizens. Of course, it isn't an invasion. But that is how they have been trying to characterize it for -at least- eight years now.
No. of Recommendations: 8
Just got a "breaking news" flash. Eighteen states have sued over the birthright citizenship EO. Less than one day in office.
No surprise. If you watch the video I posted several days ago, there seems to be only one way to make that stick. You have to have it classified as an "invasion" (and I'm not sure how you would do that...if the PLA stormed ashore in CA, that would be obvious...but people from random countries with no military or government affiliations??). IF that somehow is established, only then can birthright citizenship be suspended in those particular cases.
No. of Recommendations: 2
Just got a "breaking news" flash. Eighteen states have sued over the birthright citizenship EO. Less than one day in office.Yep. That's the second lawsuit on that EO. The first was filed in New Hampshire by a bunch of non-profit advocacy groups; this one was filed in Massachusetts. Links below.
Two things about the suits that are in line with what we've been discussing:
1) Both of them were filed in states that are part of the First Circuit Court of Appeals. In this type of federal litigation, the plaintiffs get to choose where they file their suits. The one thing that's special about the First Circuit is that there
are no Trump appointees on the court. There is a vacancy, so that might change, but even then they would be the only such judge.
2) Both suits include APA claims. If any agency changes how it treats the citizenship status of people in the U.S., that's a new substantive rule being applied by the agency - so it has to go through the APA. So both groups have sought injunctions against all of the relevant agencies to make sure they don't implement this EO, because none of the agencies have taken the steps required by the APA.
https://storage.courtlistener.com/recap/gov.uscour...https://fingfx.thomsonreuters.com/gfx/legaldocs/zn...
No. of Recommendations: 1
No. of Recommendations: 1
You have to have it classified as an "invasion" (and I'm not sure how you would do that
For Trump's purposes this is OK. He can say he tried but the damned lefties foiled him.
No. of Recommendations: 4
Two things about the suits that are in line with what we've been discussing:
I'm glad you're here. I do miss Commonone and WTH. This is going to be a loooOOooong four years.
No. of Recommendations: 4
Bit of an update on this.
As you'll recall, several states filed a lawsuit to block this Executive Order and the judge pretty quickly issued a restraining order blocking the Trump administration from implementing the order.
Of course, the administration appealed. A three judge panel of the appeals court has now declined to reinstate the executive order. So the restraining order can now be appealed to the USSC.
Hopefully, they'll simply refuse to take the case. It's just a restraining order and I suspect the lower courts are given a pretty wide latitude in determining when and when not to issue a restraining order. They wouldn't be deciding the actual case on it's merits, it would only be a case arguing the ability of a court to issue a restraining order. There's nothing terribly important about that, nor is there any obvious abuse of the court's discretion in issuing a restraining order. It's not really worthy of the USSC's time.
Nothing earthshaking here. The real meat of the case is still awaiting trial. These appeals are just a side show and delay tactic.
--Peter
No. of Recommendations: 0
Nothing earthshaking here. The real meat of the case is still awaiting trial. These appeals are just a side show and delay tactic.
--Peter
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Are you saying this appeal will somehow delay the "real meat" case coming to trial? Maybe there is linkage but I don't see it.
A more interesting question is, "If the appeal is an effective delay tactic, then why would Trump be behind it?
It seems to me that Trump would be adverse to delays. He wants to get his EO before SCOTUS as soon as possible.
BTW, thank you for your periodic updates on this case. With so much going on, it is easy to lose track...
No. of Recommendations: 7
A more interesting question is, "If the appeal is an effective delay tactic, then why would Trump be behind it?
It seems to me that Trump would be adverse to delays. He wants to get his EO before SCOTUS as soon as possible.
The Administration has at least two competing objectives:
1) They want SCOTUS to rule on the substance of their birthright citizenship argument as quickly as possibly; and
2) They want to prevail in that ruling.
Since this is just the temporary injunction, the trial court hasn't ruled on the merits of the claim yet. They've just ruled that the plaintiffs are likely enough to succeed that keeping the status quo from before the EO in place during the trial is appropriate. The appeal is therefore challenging whether the temporary injunction was properly granted, not the merits of whether the EO is itself lawful.
Appealing the temporary injunction delays reaching the merits at the trial court, which delays bringing it up on appeal. However, getting the injunction in front of the SCOTUS gives the justices a chance to signal whether any of them are receptive to the substantive argument - or even to overturn the injunction, which would let the EO go into place immediately and send a strong signal to the lower courts that SCOTUS is on board with the claim.
There are two other possible - more negative - reasons they might be doing this:
3) Trump moved faster than his DOJ/legal team could be confirmed and up and running, so this might simply be a mistake; or
4) The Administration isn't confident they'll win on the merits, so wants to have the issue unresolved until later in Trump's term.
On the former, Trump still indulges in his desire to move as quickly as possible and not accede to the fact that there are other branches and existing statutes that make moving quickly....inadvisable. This hampered some of his efforts during his first term, with his Administration losing cases that they easily could have won if they had taken their time in rulemaking and built a better record. Here, Trump's running even faster than his legal team can fully get staffed up and on board - and it may be that they just have had to "wing it" when making these decisions, without benefit of a well thought out legal strategy.
The latter is inconsistent with the former - it assumes that someone has thought about strategy - but is based on the idea that the EO on birthright citizenship has value to the Administration even while enjoined. It's a powerful signal to their base about the Administration's beliefs and priorities. So if the likely ending is the Court following Yick Wo, they're in no hurry to get there.
No. of Recommendations: 2
Had to look it up.
https://en.wikipedia.org/wiki/Yick_Wo_v._HopkinsI have little doubt that the Felon doesn't see any problem with his EO. He's not smart enough. However, at least some of his lawyers are. They could prevail, but it does seem unlikely. So leaving it unresolved until later sorta protects them. They won't get fired for losing. Speculation of my part, but it fits.
No. of Recommendations: 2
I have little doubt that the Felon doesn't see any problem with his EO. He's not smart enough. However, at least some of his lawyers are. They could prevail, but it does seem unlikely. So leaving it unresolved until later sorta protects them. They won't get fired for losing. Speculation of my part, but it fits.
And there's always the most likely answer, which is that it probably doesn't really matter.
My understanding is that in order to get onto the Court's term beginning in October, you generally have to have your petition filed by January of that year. Even moving quickly, it's not too likely that the litigation on this EO could get through both the District Court and the Circuit Court before January of 2026. But it's also not especially likely that taking two months to bounce around over the temporary injunction would push it past January 2027. This case is pretty likely going to the 2027-2028 term of SCOTUS anyway. Why not take a shot to see if you can get the injunction lifted, if you're the Administration?
No. of Recommendations: 2
Are you saying this appeal will somehow delay the "real meat" case coming to trial? Maybe there is linkage but I don't see it.
I'm going to have to defer to the lawyers on that one. I don't know if appealing a temporary restraining order like this delays the rest of the trial, or if the lower court can continue working the case.
It seems to me that Trump would be adverse to delays. He wants to get his EO before SCOTUS as soon as possible.
This appeal would not do that. All this appeal can do is determine if the district court judge properly issued the TRO. It would not get the EO itself into the USSC.
