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Judicial restraint in the United States Supreme Court. Well, the Supreme Court seems to be allergic to that concept, but we're going to find out where the rubber meets the road this week at oral argument at the United States Supreme Court. First time in 100 years they're going to be deciding whether the 14th amendment and the citizenship clause says means what it says, that people born in the United States, regardless of who their parents are or what status they have, are U.S. citizens. It's called birthright citizenship for a reason, and Donald Trump tried to change it with an executive order just hours after taking office in January of 2025. It should be clear and simple, based on the express language of the 4th 14th amendment. Yet here we are. How will Chief Justice Roberts navigate this? Will they use the principle of judicial Restraint? There's a 1940s statute recodified by Congress in 1952 that is right on point. And all the Supreme Court has to do is rule that the executive order by Donald Trump violates the federal congressional statute, Executive Night, the 1940 law which defines citizenship directly from language of the 14th Amendment that was recodified by Congress in 1952. And you're done. You can get into the niceties of what the commas mean and the parentheticals and other things mean in the 14th amendment, or you can just use judicial restraint, Chief Justice Roberts, and declare that this executive order can't overturn the will of Congress. And Congress's will has not been changed since 1952 as it relates to citizenship. I'm Michael Popak, you're on the Midas Touch Network and Legal AF not only take a minute to hit the subscribe button on Legal af, but I got great news. Legal af, the podcast and my podcast the Intersection are both up for the Webby Award for the best podcast. We made it into the final five in both categories and down below you can hit a link to vote. It's all for free to help get us over that finish line and be declared the best podcast in our respective categories. All right, let's get back to the Supreme Court case that will be heard. The Let me read to you the 14th amendment. It's clear, it's unambiguous and it should control. In section one, it says all persons, all persons born or naturalized in the United States and subject to, comma, and subject to the jurisdiction thereof, comma, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law. That's let's starting point is all persons. Donald Trump wants it to say all newly freed slaves. Why? Because this statute, this, this amendment to the Constitution is part of a series of amendments after our, a Civil War, our Reconstruction period. And yes, it was originally meant to address newly freed slaves to ensure that they had citizenship, to overturn one of the dark chapters in the American US Legal system and the Supreme Court, a case called Dred Scott that said that slaves and descendants of slaves could not be U.S. citizens. Okay, but they went further than that. Congress in 1868 weighed into a national debate, an existential debate about who is a citizen, who can be a citizen of the United states. And just 30 years after that amendment in 1898, I mean, 30 years is not that far for many people. It may be your entire lifetime for other people, you know what you were doing 30 years ago. I was five years out of law school. In any event, in 1898, in a case we call Wong Kim Ark, a child of Chinese immigrants living in San Francisco went back to China. He had been born in the United States. When he got back to the border, they denied him entry and he claimed, I'm a US citizen under the 14th Amendment. They said, well, we don't think it reads that way, okay? He went and took it all the way up to the United States Supreme Court, which recognized the ancient right in the United States of being recognized as an American citizen if you were born here, regardless if you're whether your parents were, were born here. Now, Donald Trump tries to hang his hat on a convoluted, crazy interpretation of the term. Subject to the jurisdiction thereof, comma, sub. He's trying to argue that, oh, a baby born of Guatemalan parents who were here temporarily there. He's not subject to the jurisdiction here of, well, sure he is. Because if that child grows up or otherwise, he can commit murder and be prosecuted. He's subject to the laws of the United States. It's not a state, stateless, lawless baby. So that argument is complete bs. But the, the way that I would go about it if I was the advocate at the United States Supreme Court and the American Civil Liberties Union will be arguing this case before the United States Supreme Court, before John Sauer, I mean, against John Sauer, the Solicitor General, Donald Trump's former criminal defense lawyer. What I would argue is to focus on this 1940 law where Congress, recognizing the 14th Amendment, codified in a statute the exact same definition of what is a citizen, and then had another opportunity 12 years later in 1952 to say the exact same thing. What they didn't say is What Donald Trump is saying now is this has to do with slavery and babies of slaves. He literally wrote that in a social media post. He's already not only working the refs before the oral argument, Donald Trump is abusing the refs in this case, the United States Supreme Court. It's usually a tell when Donald Trump starts attacking the Supreme Court that he knows he's going to be on the losing end of this argument. Now, in order for him to be on the losing end of the argument, it will know during the oral argument, which I'm doing a live Stream on Legal AF YouTube channel, go under the Live tab starting at 9:45am Eastern Time on Wednesday. I'll be there doing pregame coverage. And then we'll go right into the oral argument. It'll probably last a couple of hours. And we'll hear right away whether Chief Justice Roberts is gonna exercise the judicial restraint he's exercised in the past. I mean, in the past, when it dealt with a woman's right to choose and reproductive rights, he famously said it is if it is not necessary to decide more to dispose of a case, then it is necessary to not decide more. Okay, don't decide more. Stay on the 1940 statute and re codified in 1952. It completely destroys Donald Trump's argument that this only applies to newly freed slaves and their descendants. Doesn't say that. It says all persons. And the Constitution and the framers and the amendment drafters, they know how to use language like this only applies to newly freed slaves and their descendants when they want to. They added the word slaves into the original Constitution. And so this argument that all persons doesn't mean all persons should fail on the spot, it barely passes the straight face test. I had the pleasure of interviewing the deputy director of the Immigration Project at the American Civil Liberties Unit Union, and he joined me for a special interview, Cody Wofc, about his organization, the American Civil Liberties Union and their argument before the United States Supreme Court. And here's a clip which sort of shoots down the argument that this is only to free slaves. Certainly the framers and founders and people that come up with amendments, they know how to write newly freed slaves or mention slavery when they want to instead of using the term all persons. Right, Cody?
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Yeah, that's absolutely right. I'll give you basically three reasons why this idea that it is only to protect the citizenship of African Americans is just flat wrong. And it's basically just political rhetoric, not a legal argument. First of all, as you point out, nowhere in the text of the Amendment. The amendment is purposefully universal, all persons born in the United States that reflected a common law tradition going all the way back to England, that if you were born in the territory, you were a citizen. Secondly, this question came up at the time, during the debates on the clause in 1866. The question was, is this going to apply to the children of immigrants who aren't African Americans, formerly enslaved people, and so forth? And the answer unequivocally was, yes, it would. Third, that's exactly what Wong Kim Ark this foundational Supreme Court precedent held in 1898. And fourth, and here's, I think, in some ways the most damning thing for this whole line of argument. The government concedes that the government agrees with us that the children of immigrants are covered by the 14th amendment. They just want to say, well, it's some immigrants and not other immigrants. But that's nowhere to be found in the citizenship clause either. And so this entire idea is really just political rhetoric and a red herring.
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