John Law (9:56)
All right, first, let's start with some agreement. Commentators on the left and the right think the Supreme Court will strike down the order, though perspectives vary on how they'll do so. And now for what the left is saying. The left expects the order to be struck down, noting conservative justices pushback on the administration's arguments. Some say the ruling could be another major Supreme Court loss for Trump. Others stress the relevance of court precedent. In Vox, Ian Millhiser wrote, even this Supreme Court seems unwilling to end birthright citizenship. The 14th Amendment's subject to the jurisdiction rule primarily excludes the children of foreign ambassadors and similar foreign officials from U.S. citizenship because the families of diplomats often enjoy diplomatic immunity from U.S. law. Millhiser said Trump's attempt to expand this subject to the jurisdiction exception to include children of undocumented immigrants and people here on a temporary basis received a cold reception from nearly all of the justices. Similarly, after Sauer claimed that we live in a new world where pregnant foreign nationals allegedly enter the US to ensure that their child will be a US Citizen, Chief Justice John Roberts responded that it's a new world. It's the same Constitution. Justice Amy Coney Barrett offered a clever hypothetical exposing a contradiction in Sauer's legal argument. Millhiser wrote, Barrett asked about an enslaved person who was brought to the United States against their will, who always viewed themselves as a captive, and who never intended to remain in the US Under Sauer's domicile rule. She pointed out, this person could not be a citizen, even though Sauer CONCEDES that the 14th Amendment does give citizenship to freed slaves in the American prospect Robert Kutner explored Trump's losing streak in court. Chief Justice John Roberts observed to Solicitor General D. John Sauer that all of his attempts to extrapolate from rare situations where birthright citizenship did not apply were far fetched. Kutner said Justice Brett Kavanaugh reminded Sauer that Congress in 1940 and 1952 passed federal statutes codifying the language of the 14th Amendment's birthright citizenship clause. Congress passed those laws, kavanaugh said, well aware of the interpretation and dating to the 1898 Supreme Court ruling that birthright citizenship applied to virtually everyone born on US Soil, Trump was in the front row of the gallery, the first sitting president to attend a Supreme Court argument. The justices did not acknowledge his presence, Kutner wrote. If the idea was that his personal attendance would somehow intimidate the justices, it didn't work. With each succeeding decision, most recently in its 63 ruling overturning Trump's use of emergency tariffs, a supposed emergency that Roberts ridiculed in his opinion, this court grows bolder and more explicit in its restraint of Trump. In the New York Times, Stephen I. Vladik said Trump will lose the birthright citizenship case, but in a way he already won. This has always been an open shut case under almost any approach to constitutional and statutory interpretation. What may get lost in the discussion of such an outcome is the uniquely twisted procedural path that this case took to the Supreme Court, one that along the way made it much harder for lower federal courts to block lawless executive action, vladeck wrote. Initially, the issue the justices took up was whether the three federal district courts that had blocked its implementation had exceeded their authority by having their rulings apply on a nationwide basis. In a 6:3 decision handed down in June, the Supreme Court's Republican appointees all said yes. In the nine months since the Supreme Court's ruling constraining nationwide injunctions, we've seen how difficult it has been to challenge everything from immigration detention to the conduct of federal agents in and around Minneapolis to the administration's summary cancellations of federal programs and grants authorized by Congress, vladec said. We must not lose sight of the opportunities the court won't have to rein in the administration when it overreaches and the court's own responsibility for creating such an increasingly dangerous reality. Alright, that is it for what the left is saying. Which brings us to what the right is saying. Many on the right support the Trump administration's arguments, but expect the court to strike the order down. Some say the conservative justices poked meaningful holes in the government's interpretation of the 14th Amendment. Others argue the court risks its legitimacy if it rules against Trump. In Fox News, Greg Jarrett described the court's posture as wary. Sauer was an impressive advocate with a masterful command of the law and history. However, he faced a level of skepticism from a majority of the court, which suggests that in the end, Trump's executive order may be struck down, jarrett wrote. Granted, divining an outcome based solely on oral arguments can be equivalent to reading tea leaves. The dynamic could change behind closed doors and upon further deliberations, but it cannot be overlooked that even conservative justices at the hearing posed penetrating questions that seemed to manifest their doubt. Sauer quoted Senator Lyman Trumbull, a moving force behind the 14th Amendment, who specifically stated that the citizenship clause does not encompass individuals still subject to any foreign power or owing allegiance to anybody else, jarrett said. However, the justices seemed unmoved by the notion that citizenship should not apply to the children of people who broke the law coming here and have no permission to be in the U.S. in National Review, Dan McLaughlin wrote no big surprises at the birthright citizenship argument. Oral argument has a way of narrowing disputes. On the one hand, Sauer conceded that he is not asking the court to overturn Wong Kim Ark, which significantly limits the swing for the Fence's appeal of his argument for those who think that the case was wrongly reasoned from the start, McLaughlin said. On the other hand, while Kavanaugh and a few other justices asked questions about the statutory argument, there seemed to be little appetite for using that as an excuse to avoid the constitutional questions. The move that Sauer makes to turn lawful domicile into the test for who is subject to US Jurisdiction by saying that illegal aliens lack the legal capacity to form legal residence. Here is a modern engraftment onto the 1866-68 debates, which discuss nothing of the sort, McLaughlin wrote. In fact, as Justice Barrett noted, if we move from domicile to a theory focused on legal competence to form an allegiance, we should get into some of the logic followed by those of the antebellum defenders of Dred Scott, who argued that slaves had no legal capacity to be citizens. The odds of there being five votes for the administration's entire position without even overturning Wong Kim Ark appear pretty distant in the Federalists. Brecken F. Thiess said the court upholds birthright citizenship at its own peril. If the Supreme Court rules in favor of this view, allowing any foreigner circumstantially or intentionally born on US Soil to be automatically adopted into the Union as a citizen, it will mean the end of actual American citizens taking the high court seriously, thies wrote. As Justice Clarence Thomas pointed out, the purpose of the 14th Amendment was to grant citizenship to black people and freed slaves after the Civil War. Making the point further, Thomas asked how much of the debates around the 14th Amendment had anything to do with immigration. Sauer's introduction of the issue on birth tourism led to a potentially telling exchange with Chief Justice John Roberts, where Roberts asked about birth tourism's prominence. Thieves said Roberts has consistently postured himself as the Chief justice most intent on preserving the institution of the Supreme Court. That is what makes his line of questioning both confusing and concerning, because it suggests he believes the proper constitutional interpretation of the 14th Amendment would continue to allow these birthright farms to send foreigners to the United States so their babies can receive rubber stamp citizenship. Alright, let's head over to Isaac for his take.
