Re: Nationwide injunctions and birthright citizenship cases

BTR1701 <atropos@mac.com> wrote:

May 15, 2025 at 1:56:27 PM PDT, Adam H. Kerman <ahk@chinet.com> wrote:

BTR1701 <atropos@mac.com> wrote:

May 15, 2025 at 8:50:43 AM PDT, Adam H. Kerman <ahk@chinet.com> wrote:

Today, 5/15/2025, three consolidated birthright citizenship cases will
be argued before the Supreme Court. Trump v. CASA, filed by immigrants
rights groups and several pregnant women in Maryland; Trump v.
Washington, filed in Seattle by a group of four states; and Trump v. New
Jersey, filed in Massachusetts by a group of 18 states, the District of
Columbia, and San Francisco.

D. John Sauer is Solicitor General. I recognized the scratchy voice.
He's made these arguments over the years and was clearly hired by Trump
to argue this type of case.

However, Court observers have predicted that most of the time will be
spent analyzing universal injunctions, a practice that has proliferated
over the last several decades.

These need to go. What's the point of having a Congress and a president
when one unelected judge can substitute his judgment for all of theirs
not just in the case before him/her but for every case across the
nation? The judiciary doesn't not set public policy. The political
branches do.

The president, who is not a king but an ordinary civilian to whom
law applies, cannot decree parts of the Constitution inapplicable or
unenforceable. Yes, I know. There are numerous Biden examples -- student
loan debt forgiveness, all-encompassing immigration parole -- but that
doesn't make Trump get to cut clauses out of the Fourteenth Amendment.

He's not cutting the clause out, he's saying it's inapplicable to illegal
aliens, and I agree.

Bullshit. Trump says it's inapplicable to CHILDREN of illegal aliens and
travellers. The child born in the United States committed no crime or
violation of any kind of the Immigration and Nationality Act.

Sauer repeated an argument he's made before, which I don't think is
supported by any sitting Supreme Court justice, that the citizenship
clause was limited to slaves and their children born in the United
States freed by the Thirteenth Amendment.

That's certainly what it was intended for by those who drafted it, wrote it,
and passed it into law.

And that law was immediately found unconstitutional by a Supreme Court

The 14th Amendment was found unconstitutional? Because that's the law I'm
talking about. Part of the Constitution itself is unconstitutional? That's
both news to me and a legal paradox.

You were talking about intent of Congress. Congress intended the
Thirteenth Amendment to be the broad basis for civil rights. Once
slavery became unconstitutional, blacks (not just slaves) became persons
with due process rights and civil rights generally, enforced by the
Civil Rights Act of 1865.

The Supreme Court, still the Dred Scott court, didn't see it the
Thirteenth Amendment as a grant of legal personhood (thus reversing Dred
Scott) and found the civil rights law unconstitutional.

Of the three post-Civil War amendments, the 13th is the only one that
can be argued to apply to freed slaves and no one else. The other two
amendments, with neutral language, applied to everybody.

If you seriously argue, like Sauer, that the Fourteenth Amendment was a
grant of liberty to the freed men and no one else

I'm not saying no one else. Just not people who entered the country
illegally.

The unborn baby did nothing illegal. You never have a counterargument to
the obvious point.

then we lose the
entire notion that the Constitution and civil rights law was written in
colorblind language. We lose the entire line of reverse discrimination
cases starting with the tax law case that Ruth Bader Ginsburg famously
took to the Supreme Court to more broadly apply the neutral language "on
the basis of sex" to her client, a dude. We lose Bakke. We lose those
university admission cases just decided two years ago.

Please tell me you still believe that the Constitution's language is
neutral.

I used to think it was just an unfortunate oversight that they didn't make
that express in the text of the law and we'd either have to repeal/amend
that clause or just live with illegals birthing babies here so they can
be citizens. But then I was pointed to a whole line of cases that explain
the phrase "and subject to the jurisdiction thereof" in the context of
both the time in which it was written and its meaning under the law and
which form persuasive precedent that illegal aliens are not covered by
the 14th Amendment's grant of birthright citizenship.

It is well-settled law** that if you are here without the consent of the
people of the United States as expressed by their duly enacted laws, from a
legal perspective, it is quite literally as if you are not present in  this
country. It's absurd on its face to assert that people who are illegally on
our soil through intentional violation of our laws can, strictly by
trespassing on it, achieve the ultimate benefit of citizenship for their
kids.

**United States v. Ju Toy, 198 U.S. 253 (1905):  "A person who comes to the
country illegally is to be regarded under the law as if he had stopped at the
limit of its jurisdiction, although physically he may be within its
boundaries".

Yes I know.

Every time you bring up that case, I ask you how the newborn baby
himself violated the Immigration and Nationality Act, even if presuming
his mother did?

Intent is not an element of the offense.

I didn't raise intent. I'm pointing out that not yet having been born at
the point of the illegal entry means there was no violation of the law
in question. As it's not illegal to be born, then having been born, the
baby cannot possibly be illegally present in the United States even if
his mother is.

You always ignore the fundamental question. Ju Toy cannot possibly apply
to the unborn foetus.

Sure it can.

Actually, looks like I forgot what the ruling was in this case. If the
phrase in question is a quote from the ruling, then it didn't apply to
the facts of the case.

Ju Toy was born in the United States before the Chinese Exclusion Act of
1882 and was denied entry at a port despite already having been
determined to be an American citizen. Holmes ruled that he immigration
at ports of entry is due process even though it's an administrative
procedure and had no right to equitable relief in federal court for a
maldetermination by immigration authorities.

The opinion was overturned in Ng Fung Ho v. White (1922), that the
detainee had a right to assert citizenship in federal court under the
liberty clause.

Neither case applies to those who cannot assert citizenship and a baby
born in the United States isn't literally going through immigration.

I suppose the mother could give birth at the port of entry but before
she's cleared immigration. I have no idea how the birthright citizenship
clause applies.