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Trump administration has suffered another loss at the appellate court level about birthright citizenship, with the 1st Circuit Court of Appeals refusing to block a nationwide injunction on Donald Trump's enforcement of his executive order which ripped or attempted to rip out of the Constitution birthright citizenship. You know you're born on US soil, so you are an American citizen regardless of where your parents are from or what your parents documented status or undocumented statuses. You know that part of the Constitution. The lower court, Judge Sorokin had already issued an order, a nationwide injunction that it was an unconstitutional exercise by the president. Donald Trump's about to take an appeal and wanted the First Circuit Court of Appeals while he's busy getting his appeal off the ground to block the injunction. And the First Circuit said no. I'll tell you why you're here. On the Midas Touch Network, I'm Michael Popo. Let's get into the intersection of law and politics on this breakout legal A F video. The this is now the third time a circuit court has ruled against Donald Trump on this very issue. The First Circuit now joining the Fourth Circuit, which covers Maryland and the Ninth Circuit which covers California, because judges there also issued some sort of nationwide or other injunction to stop this particular executive order, the executive order in particular. And then I'll read to you from the order from the judge. The executive order issued by Donald Trump said if the mother was here in an undocumented status and the father was not a US Citizen or the mother was here documented but temporary and the father is not a US Citizen, that child born here is not American, not a US Citizen. That's not what the Constitution says. That's not what the precedent going back to 1898, the Wong Kim Ark case says, where a child there born of Chinese parents who were still beholden to the Emperor of China, but the child was born in San Francisco area in California, the Supreme Court ruled that was a U.S. citizen. That child, Wong Kim Ark grew up to be a 20 year old, tried to go back to China, got stopped at the border coming back into the United States. He said, I'm a U.S. citizen. They said you're not. And the United States Supreme Court said he and ever since then, in all cases ever looking at the issue, including at the Supreme Court level, citing Wong Kim Ark, they have found that that is what the Constitution says. That is what the Constitution means. And the Constitution can't be changed by a little piece of paper called an executive order. It has to be changed only through a referendum. Two thirds of the states, 2/3 of the Senate and two thirds of the House. All you know that it's very hard to change the Constitution at this point, especially given our divided United States. So we have to rely on what is in the Constitution, not what Donald Trump would fantasize about removing from it. So there was a series of cases. We followed them here on Midas, Dutch and Legal. I have all kind of shot out at the same time. We had one that was filed in San Francisco, one that was filed in Maryland, and two that were filed in, in the first. In the First Circuit region, in New Hampshire and in Massachusetts. They all came out the same way at the trial court level. They all said, no, you can't make that change. Now, the fight in this particular case, even though Judge Sorokin issued his nationwide injunction, is whether fundamentally, the 18 states, the public interest groups, the woman who's pregnant and undocumented, that's also a plaintiff, whether they have what's called standing. Standing is a threshold issue for any federal court, really any court to determine whether the party in front of them has the right to litigate and prosecute a case because their rights have been violated. If you don't have standing, you don't get to come into the courthouse, because we only let judges listen to and adjudicate cases where there is what we call a live case or controversy. There can only be a live case or controversy if two parties have a vested interest in the outcome of the case. They've been damaged in some way, some injured in some way, and they're allowed then to go to court. Otherwise, it's an advisory opinion. We don't let judges issue advisory opinions. They're very conservative about their own jurisdiction, and standing is the first way they do it. Does this party have a ticket to the courthouse? Trump administration argues, well, the 18 states don't. I don't know how they can argue the woman about to have a baby doesn't. But they were arguing primarily against the 18 states and the state's attorney general. The states argued, we've been injured, we have standing. We're going to lose federal funding because you're going to determine that these people that we're going to have to support because they're in our state with social services and Social Security and different things, different kind of funding and programs that you are, you're going to cut off federal funding because you're going to not recognize these people as legitimate Americans. But they are, and they're here and they're babies and they're growing, and we have to do something about them. The states will and will be injured as a result. That is a very compelling argument. It's called a pocketbook issue. Hitting somebody in their pocketbook is the fundamental basis of standing. Now, the, this appeal, just to be clear, in this little appellate law breakout session for law school, is not on the merits. It's not a merits appeal. It's not going to the heart of whether Donald Trump was right or wrong on the executive order versus the constitutional issue, although it does in a way. It's about whether while the appeal on the merits is going on, that whether the nationwide injunction that Judge Sorokin put in place will remain in place during the duration of the appeal. Now, in order to get to that, the appellate court, like the first, and I'm going to read to you from their decision in a minute, the first in any appellate court has to kind of look under the hood and ask the fundamental question. The party that's asking me to do something in this case, the Trump administration, is it likely or not that they're going to win on their substantive appeal or not? Likelihood of success on the merits is what we call it. It is a factor. They have to do a little crystal ball analysis based on their review of the record. They're not making a definitive ruling on the substance, but they sort of are. So here, Judge, Judge Baron, the chief Judge for the First Circuit, writing for the majority, writing for the three that ruled 30 against the Trump administration, took a look at these things and here's here's the, you know, there's 30 pages, but here's the fundamental finding and ruling on page 10 of the brief. The government expressly declines to make any developed argument that's the Trump administration that is likely to succeed on appeal in showing that the executive order is either constitutional OR compliant with 8 USC section 1401. That is a statute that mirrors the language of the Constitution. It implements the 14th Amendment of the Constitution about citizenship. But Judge, the judge continues in his order, nor does the government contest that for more than a century. Going back to that case I mentioned, Wong Kim Ark in 1898. Persons in the two categories that the executive order seeks to prevent from being recognized as U.S. citizens have been so recognized. That's women who are here temporarily documented, but whose husbands are not US Citizens giving birth, and women who were here illegally or undocumented who give birth with husbands who are not U.S. citizens. Those have always been recognized. Those children have always been recognized as U.S. citizens or as they're derisively referred to in the MAGA world. Anchor babies? They're not anchor babies. They're U.S. citizens that could one day grow up to be the President of the United States in a way that many members of Congress in the Senate can't because they weren't born here like Ted Cruz. Are you looking for something simple and delicious to add to your wellness routine? Look, I'm a honey guy instead of artificial sweeteners, so I put regular honey in my salad dressings and hot drinks. But then I found Manokura that put all other honey to shame. It has a certain creaminess and complexity of flavor that is unmatched, not to mention the health benefits. 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Additional usage through the day is completely fine, especially helping to cut out other sweeteners. It's a honey with superpowers. Now it's easier than ever to try Manokora honey. Head to manacora.com legalaf to get $25 off the starter kit, which comes with an MGO 850 plus Manuka honey jar, five honey travel sticks, a wooden spoon and a guidebook. That's monacora.com legal af for $25 off your starter kit. Instead, the government contends that it can make the requisite showing for a stay of the preliminary injunction. That's the court recognizing that what the Trump administration wants here is us to block the temporary injunction put in place by the lower court judge, Judge Sorokin. But in order to do that, the Trump administration makes an argument that they can do it without developing an argument to us that the, to the court that the executive order is lawful. And even though the enforcement of the executive order would dramatically break with the executive branch's long standing legal position and thereby disrupt long standing governmental practice. Citing a series. Citing a series of cases. Right. So what they're saying here, only translate one more time. What they're saying is you don't even take a shot Trump administration and developing any compelling argument that the, that what you are planning to do is constitutional. It is against the line of precedent, is against the line of historical precedent about the executive branch and its approach to these types of born children. And so since you haven't done that, you haven't even taken a shot at it. Or as they say, they've expressly declined to make any developed argument. Meaning you've not only not made an argument that makes any sense in order for us to block the temporary restraining order, the injunction, you, you expressly say you don't have to do that. Well, you do because we're not at the merits yet. So here's what's going to happen now that they've lost with this order by Judge Barron joining the 9th Circuit ruling the exactly the same way over the California trial judge, Judge Kofanor, who made a similar ruling at the top of the Trump administration. We have a 4th Circuit Court of Appeals sitting over a federal district judge in Maryland who made an identical decision and she also had a nationwide block. So we have these multiple overlapping nationwide blocks that all have to be, they have to run the table if you're the Trump administration in order to have your executive order, which is obviously unconstitutional, survive appellate review. Now we've got three courts that agree what happens next. Supreme Court, there's no other way to put it. We got to get to the Supreme Court. Now, fortunately, because of the jurisdictions and venues that the democratically oriented public interest groups and attorneys general picked, the ninth, the first, the fourth, they all feed into. First stop on that train are U.S. supreme Court justices that are more liberal. Yeah, it's the ones that Sotomayor and Kagan and Katanji Brown Jackson said over. And so they make the first decision on any emergency writ by Donald Trump. They make the first decision as to whether they're going to refer it over to their other eight on their United States Supreme Court or they're going to make the ruling on their own to reject the appeal. The writ, which would be to block the unique issue here again, whether the temporary. Sorry. Whether the nationwide injunction issued by any of these judges against having the executive order take away Birthright citizenship. Whether that's going to be put on ice while an appeal plays out over the next six months to a year, I think that's a loser at the Supreme Court level. It can be shot down by each one of these judges without any other reference to the rest of the court. It's called a shadow doc. It happens all the time. We'll have to see if they're going to do it on an issue like birthright citizenship or they're going to make a referral to the rest of the bench. If they make a referral to the rest of the bench, there's got to be four people that are interested in hearing the case and five that vote in favor of the Trump administration. I think that, I think that the Trump administration will be able to count to four to find it interesting. We know who the four are, Alito, Gorsuch, Kavanaugh and Thomas. But I don't know if they can count to five. And the five would be again. Here we are again, Amy Coney Barrett, who has eight children, including one, a number that are adopted, including one or two from Haiti and which I only mentioned because Mag has gone crazy figuring out that she's not totally in favor of everything Donald Trump does and they've attacked her. I celebrate that aspect of her. Not many things that she's done in the court I've celebrated, but that's one. And then Chief Justice Roberts, what's he gonna do with an out of control rogue president who's trying to rip away the beating heart of birthright citizenship from the U.S. constitution by executive order. What say you, Chief Justice Roberts, if you side with the three, the Democratic wing, if you will, of the moderate wing of the Supreme Court. And Amy Coney Barrett joins you. It's five to four and Donald Trump loses. If they, if they decide on the temporary rest on the injunction. Sorry, if they decide on the injunction not to block it and allow it to stay in place and so it won't, Birthright citizenship remains intact as a concept through the appeal. It's probably a hard loss that Donald Trump won't recover from, but we'll have to see. It's going to get to the Supreme Court relatively quickly. I think it'll be there in the next two weeks to three weeks. And we will be reporting on it right here on the Midas Dutch network and on Legal af. Take a minute. Hit the subscribe button here. Of course, Midas touch. But come over to the collaborative channel that we have with Midas that just rolled over 500,000. It's called Legal AF, of course, the YouTube channel I curated. We got Court Accountability Action, Lisa Graves, Alex Aronson, Mike Sachs. We've got Shan Wu. You know, we've got me, we got Dina Dahl. It's an amazing collection of legal commentators at the highest level over on Legal AF, the YouTube channel. Take a minute and hit the free subscribe button there. I'll see you on my Legal AF podcast. Wednesdays I do it with Karen Freeman, Ignitflow Saturdays with Ben Mysellis, and then at 8pm Eastern time here. And then of course we've got the audio podcast. Everywhere you can get your audio podcast. There's a rumor out there that we're in the top 10 in the world. It's crazy. It's all because of you. We're humbled by it and I appreciate each and every one of you. Until my next reporting, I'm Michael Popak. In collaboration with the Midas Touch Network, we just launched the Legal AF YouTube channel. Help us build this pro democracy channel where I'll be curating the top stories, the intersection of law and politics. Go to YouTube now and free subscribe @legalafmtn. That's legal afmtn.
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