- law dawg
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The Supreme Court closes out its term today with several decisions–including one on birthright citizenship. You can find coverage at SCOTUSblog. Feel free to discuss the legal implications and aspects of the decisions here, but please keep your comments focused and professional. Additionally, as is often obvious from the comments, there are several of you with a desire to be able to discuss legal topics that are not necessarily Vegas centric. Here’s your chance. If you want to discuss the legal merits of a topic of (inter)national interest, i.e. national politics, free speech, Iran, World Cup, American 250, etc., feel free to do so in the comment section of this post. We ask that you remain civil in your discussion and refrain from personal attacks on each other or the subjects of the discussion. Again this is for discussing the legal aspects of these issues, if it devolves into a stream of memes and vitriol then we’ll shut it down.
Crazy that Germany and the Netherlands were eliminated in the round of 32. Wait, we have to discuss the legal aspects. Uh, crazy that two of the original signatories of the Treaty of Paris lost in the round of 32.
Help me understand this. How is an executive order able to overturn a constitutional amendment. Explain it to me as if I was in law school over 25 years ago.
“Trump’s executive orders trump the Constitution because his name is Trump and that means it trumps because he’s an executive and he ordered them.” – Samuel Alito, dissenting.
Ok dummy. The executive order was intended as a device to get the issue into Court.
Supreme Court upholds birthright citizenship
• Birthright citizenship upheld: In a big loss for President Donald Trump, the Supreme Court upheld birthright citizenship, striking down his executive order. Chief Justice John Roberts, calling citizenship “the right to have rights,” wrote for the court that “the Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”
Thanks, Chat.
CNN
Only 5 justices think birthright citizenship is enshrined in the Constitution. That’s horrifying.
Dissenting from Tuesday’s decision were Justices Clarence Thomas, Neil Gorsuch and Samuel Alito.
Thomas’s vote was no surprise of course. Does he still believe in the 15th Amendment?
Or the 13th Amendment, for that matter.
And, partially, Kavanaugh. Kavanaugh has no problem with the executive order’s constitutionality. He just thinks that the current statute prevents it. Change the statute, and he’d be happy to uphold the EO.
This is the most clumsily political fence-riding I’ve seen in a SCOTUS opinion for quite some time. His partial concurrence and partial dissent was not necessary to form a plurality, multi-opinion judgment of the Court. It’s nakedly partisan in that it offers up a clear roadmap to other likeminded partisans to get his vote to upend birthright citizenship in the next case, should Republicans get an opportunity to replace one of the three remaining liberal members of the Court or Roberts in the next 2 to 4 years.
I mean, did you read Gorsuch’s dissent? “I fully agree with Thomas, who thinks the majority is full of shit. I, too, agree with the majority in the major question – are children of illegal immigrants citizens – but there’s this narrow issue that I think could possibly make the EO okay, so I dissent, and gaze lovingly into my navel as I do so.”
It was shockingly low effort too. The main divergence from the majority opinion is a bunch of guesses about what the 14A Framers “would” have thought about modern immigration law totally unmoored from any historical evidence. I like Kavanaugh when he writes a majority because it’s kinda breezy and doesn’t waste our time going down a bunch of rabbit holes, but when you’re trying to overturn the plain text of most important amendment in the Constitution, I expect better.
The 14th Amendment was only supposed to apply to slaves and native Americans (Indians). It was never intended to bestow birthright citizenship to tourists and illegals. Bad facts make bad law.
Read Jackson’s excellent concurrence for why this argument is 100% hogwash.
Jackson is sipping the Progressive left “cool-aid”. She could not define a female at her confirmation hearings. She is an intellectual light weight.
Dudebros who can’t spell “Kool-Aid” and other words shouldn’t try to call others intellectual lightweights.
How did we go from an amendment intended to do good by recognizing recently emancipated slaves and their children as citizens; to now when someone can enter the country illegally for the purpose of giving birth here to obtain the precious right of citizenship for her child thereby securing an anchor baby so she can remain in the US.
The other travesty is the business of Chinese national entering on a visitor status, birthing, and immediately returning to China.
Perhaps it’s your understanding of the Amendment and the history of citizenship in this country that is at fault, rather than some claimed change.
Only recently with MAGA movement is the anti-birthright citizenship thing a thing; was a real fringe position for over 100 years – its important to look at how the courts from shortly after the amendment was adopted applied it consistently to today –
• Ruling on trans sports: The Supreme Court is letting states ban transgender athletes from playing on girls sports teams. The ruling comes amid a political and legal backlash against trans Americans in conservative states.
• Campaign finance: The court also lifted a Watergate-era cap on how much money political parties may spend in coordination with candidates.
Trans decision is only marginally about sports. It’s about stripping Equal Protection claims away from trans people.
So do you disagree with using the intermediate scrutiny analysis for trans people?
Being Trans is not a protected class. How can it be? If gender is fluid, then how can it be an immutable characteristic?
Should religious beliefs not be a protected class then?
It’s not really about who is a “protected class,” it’s about what level of scrutiny everyone receives. Religion typically receives strict scrutiny, I believe.
Sex receives intermediate. So I will ask again: are people taking issue with trans people being analyzed under intermediate scrutiny?
10:30 where did you get the idea that a characteristic had to be “immutable” to have legal protection?
Do kids even go to law school anymore?
We consider whether members of the group in question “exhibit obvious, immutable or distinguishing characteristics *550 that define them as a discrete group,” whether the group has, “[a]s a historical matter, … been subjected to discrimination,” and whether the group is “a minority or politically powerless.” Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986). The test is strict, as evidenced by the failure of even vulnerable groups to satisfy it: We have held that the mentally disabled, the elderly, and the poor are not suspect classes. See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 442, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (mental disability); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313–314, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam) (age); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (poverty). In fact, as far as I can tell, we have never embraced a new suspect class under this test. Our restraint reflects the principle that “[w]hen social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.” Cleburne, 473 U.S. at 440, 105 S.Ct. 3249 (citation omitted).
Yeah, to hell with Title IX.
MAGA politicians mourn the trans sports ruling because, while the issue is going away, it won’t have the same potent ability to raises campaign funds and turn out the vote like it once did.
This ruling is just the foundation for the cases coming in the next term or so, which will state that Title IX requires the banning of trans athletes. B.P.J./Hecox just allow the states to do it.
It’s going to be a state-by-state issue on every campaign, from school board to governor.
https://www.facebook.com/share/p/1D9XrNDJfx/
Well, I guess that’s one way to avoid a $14.00 parking fee.
The absolute irony of Thomas trying to undermine the 14th Amendment.
Thomas also hates Affirmative Action despite admitting being a recipient of it and having success from it. Biggest Uncle Tom in the history of Uncle Toms
Is he also against Loving v. Virginia in spite of his marital status?
I am sure Thomas disagrees with Loving and pines for the good old Dred Scott days
The irony. SC Justices who have embraced the belief that the Constitution is to be interpreted as an evolving document have, for this decision, become strict constructionist.
I mean, you always start with what the text actually says. Then you look at what the drafters intended it to mean. Then you take the principles that the drafters relied on with the words they used to apply it to newer situations, if needed.
Except that this isn’t a new situation because analogous facts were present when the drafters wrote the damn thing, and its been interpreted exactly they way they wrote it for 140 years. It’s not like the 15th Amendment, which was narrowed into impotence within a generation. So even if we were looking at the Constitution as an ever-evolving document, the principles that would be carried forward are “people are citizens of the country where they are born.” Pretty clear, unless you’re carrying water for the local racism brigade.