Trump's birthright citizenship order may not fly — but activist judges could soon find themselves grounded



The U.S. Supreme Court heard oral arguments Thursday in the case Trump v. CASA Inc., along with the related cases Trump v. Washington and Trump v. New Jersey, concerning President Donald Trump's executive order ending birthright citizenship for children of illegal aliens.

The court was focused on procedural questions — particularly with regard to federal judges' apparent efforts to direct U.S. policy through the imposition of nationwide injunctions — rather than the constitutionality of the order, although its legality came up on occasion.

The court, which is expected to render its decision by late June or early July, may end up blocking the order but possibly also reining in meddlesome federal judges.

Background

Trump issued the executive order ending birthright citizenship on Jan. 20.

Days later, a Seattle-based U.S. district judge, responding to a lawsuit brought by four Democrat-led states, deemed the order "blatantly unconstitutional," and slapped it with a nationwide injunction — one among the 40 issued in recent months that have prompted accusations of a "judicial coup." A Biden judge and an Obama judge similarly blocked the order before courts ruled on the legal merits.

Denied additional sets of eyes on the matter by federal appeals courts, the Trump administration asked the U.S. Supreme Court in March for a partial stay but also drew the high court's attention to the efforts of district judges to "govern ... the whole Nation from their courtrooms."

'Enough is enough.'

Attorneys for the government noted in their application for a partial stay that "such universal injunctions, though 'a relatively new phenomenon,' have become ubiquitous, posing 'a question of great significance that has been in need of the Court's attention for some time.'"

The Congressional Research Service indicated there were at least 17 cases of national injunctions between Jan. 20 and March 27. That number has since risen to at least 40 — including 35 from the same five judicial districts. According to the government's application, district courts issued more nationwide injunctions and temporary restraining orders in the month of February than through the first three years of the Biden administration. Throughout the entirety of Barack Obama's presidency, only 19 were issued.

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Attorneys for the government argued further that nationwide injunctions, which have "reached epidemic proportions since the start of the current Administration," transgress constitutional limits on courts' powers; are incompatible with foundational limits on equitable jurisdiction; are bad for the rule of law; risk the perception of the federal courts as an apolitical branch; and "compromise the Executive Branch's ability to carry out its functions, as administrations of both parties have explained."

"This Court should declare that enough is enough before district courts' burgeoning reliance on universal injunctions becomes further entrenched," wrote the government's attorneys. "Only this Court's intervention can prevent universal injunctions from becoming universally acceptable."

The ask: Narrow down injunctions to the actual parties in the case.

Dr. John C. Eastman, founding director of the Claremont Institute's Center for Constitutional Jurisprudence, noted in a Blaze News op-ed Thursday that both conservative and liberal justices on the high court have previously criticized the practice of single federal district courts lobbing nationwide injunctions to block policies enacted by the political branches.

Justice Elena Kagan, for instance, reportedly suggested, "It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for ... years."

On Thursday, the government appeared keen to draw out those outstanding concerns.

Showtime

There was some discussion during oral arguments about the legality of the order, what it would look like if partially implemented, and the government's primary contention that the Citizenship Clause of the 14th Amendment related to the children of former slaves, not those of illegal aliens who — as U.S. Solicitor General D. John Sauer put it — "weren't even present as a discrete class at that time."

Sauer assigned more energy, however, to hammering home the point that the nationwide injunctions are a "bipartisan problem" that exceed the judicial power granted in Article III of the Constitution; require judges to make "rushed, high-stakes, low-information decisions"; require the "government to win everywhere while the plaintiffs can win anywhere"; and "prevent the percolation of novel and difficult legal questions" in the lower courts.

His efforts were not in vain.

'We survived until the 1960s without universal injunctions.'

The justices seriously considered the legal basis for and impact of scrapping universal injunctions as well as alternative tools for expeditious legal action, including class action and certiorari before judgment.

After expressing a desire to temporarily "put out of our minds the merits of this and just look at the abstract question of universal injunctions," Justice Samuel Alito suggested that there are 680 district court judges, and while dedicated and scholarly, "sometimes they're wrong."

"All Article III judges are vulnerable to an occupational disease, which is the disease of thinking that 'I am right and I can do whatever I want,'" said Alito.

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Whereas colleagues on a multimember appellate court could keep that "occupational disease" at bay, Justice Alito suggested that a trial judge is relatively unbounded and unchecked as "the monarch of that realm."

New Jersey Solicitor General Jeremy Feigenbaum, who represented the states challenging Trump's order, characterized nationwide injunctions as inconvenient, potentially frustrating but necessary — something that should not be "categorically off the table."

Justice Clarence Thomas noted, however, that "we survived until the 1960s without universal injunctions."

'At stake is nothing less than the legitimacy of the last election.'

Chief Justice John Roberts added that in recent months, the Supreme Court was able to take expeditious action — the suggestion being a nationwide injunction is unnecessary to achieve a similar end.

Justice Neil Gorsuch cast doubt on the relative timeliness of a class action, noting that certifying a class takes time, and the process involves other hurdles, reported SCOTUSBlog.

Justice Sonia Sotomayor suggested that if Sauer was right in his assertion that Article III precludes universal injunctions, then class actions would similarly be illegal, a suggestion Sauer disagreed with "profoundly."

While the conservative justices' receptivity Thursday to the government's arguments is no guarantee of a partial win on the matter of nationwide injunctions, it is a hopeful sign for critics such as Stephen Miller, White House deputy chief of staff, who asked earlier this year, "Is there no end to this madness?"

Eastman noted, "Whatever the court decides, the consequences will ripple through the hundreds of lawsuits filed against the president’s executive actions. At stake is nothing less than the legitimacy of the last election — and whether unelected district judges can override the policies chosen by the American people."

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SCOTUS denies Missouri AG's effort to delay Trump's sentencing and relieve him of gag order in New York case



The Supreme Court of the United States declined a request by the attorney general of Missouri to delay sentencing and lift the gag order imposed on former President Donald Trump in connection with the so-called hush-money trial in New York.

In early July, Missouri AG Andrew Bailey, a Republican appointee currently running for a full term, effectively sued the state of New York for allegedly attempting to prevent Missourians from hearing from the Republican candidate for president in 2024 on account of the gag order that remains in place even after a New York jury convicted Trump on all 34 counts related to payments meant to keep the story of his alleged affair with porn actress Stormy Daniels out of the tabloids in 2016.

'I will continue to prosecute our lawsuit against @KamalaHarris @JoeBiden’s DOJ for coordinating the illicit prosecutions against President Trump.'

"New York is working to hijack our national election and jail President Trump," Bailey tweeted on Monday. "Missourians absolutely have an interest in ensuring that does not happen."

Acting Judge Juan Merchan eased the gag order some after Trump was convicted, permitting Trump to criticize jurors and witnesses in the case. However, Trump is still forbidden from speaking about prosecutors and their family members.

Last week, a New York appeals court denied a motion from Trump — who was recently shot and nearly killed in an assassination attempt — to lift all remaining remnants of the gag order, citing ongoing alleged "threats received by District Attorney staff after the jury verdict continued." There have been no reports of court staff members enduring physical harm on account of the trial.

Though Republican attorneys general from Alaska, Florida, Iowa, and Montana all joined Bailey and Missouri in the SCOTUS filing, NBC News still described it as a "longshot" and Politico a "legal Hail Mary."

Thus, it came as no surprise that on Monday, SCOTUS issued a one-page statement declining Bailey's motion.

"Missouri’s motion for leave to file a bill of complaint is denied, and its motion for preliminary relief or a stay is dismissed as moot," the statement said.

The statement added that Justices Samuel Alito and Clarence Thomas would have granted Bailey the opportunity to file the complaint but would not have granted any "other relief" he sought.

Following the statement from SCOTUS, Bailey expressed disappointment as well as resolve to hold the Biden-Harris administration accountable for apparent election interference via "lawfare."

"It’s disappointing that the Supreme Court refused to exercise its constitutional responsibility to resolve state v. state disputes," Bailey wrote. "I will continue to prosecute our lawsuit against @KamalaHarris@JoeBiden’s DOJ for coordinating the illicit prosecutions against President Trump."

"The fight is not over."

New York Attorney General Letitia James, who campaigned for office on the promise of targeting Trump, declined NBC News' request for comment on the SCOTUS statement.

Manhattan District Attorney Alvin Bragg, who has ties to billionaire financier George Soros and also made going after Trump a central focus of his campaign, declined Politico's request for comment.

Following his conviction, Trump was initially scheduled to be sentenced in July, but the sentencing hearing has since been pushed back until September.

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Supreme Court justices weren't buying what the lawyer arguing for Trump's removal from Colorado ballot was selling



The U.S. Supreme Court heard roughly two hours of arguments Thursday concerning the effort by six Colorado voters to deny their fellow countrymen the opportunity to vote for the Republican front-runner in the 2024 election.

Jason Murray, a Denver lawyer representing the six voters, struggled to make a case for former President Donald Trump's disqualification, ostensibly tripping over simple questions and facts.

While conservative Justices Clarence Thomas and Brett Kavanaugh predictably exposed the various faults in Murray's arguments, even left-leaning Justices Elena Kagan and Ketanji Brown Jackson seemed unimpressed, casting doubt over whether Section 3 of the 14th Amendment applies and over whether the Centennial State should determine the fate of the nation.

Quick background

Six voters backed by a Democrat-aligned group, which is helmed by a former Biden official, sued in September 2023 to have Trump removed from Colorado ballots in the 2024 election, claiming both that Section 3 of the 14th Amendment concerning insurrection applies to Trump and that the former president's actions on Jan. 6, 2021, qualified.

The case was kicked up to the Democratic appointees on the Colorado Supreme Court, who ruled in a 4-3 December decision that Trump engaged in an insurrection on Jan. 6, is ineligible to be president, and cannot therefore appear on the ballot.

Trump's legal team appealed the verdict, maintaining that the former president did not engage in an insurrection; Section 3 does not apply to the president; the Colorado Supreme Court violated the Electors Clause; and Congress is the proper body to resolve such matters.

Murray swings and misses — repeatedly

Murray, who previously convinced Democratic appointees on the Colorado Supreme Court to declare Trump ineligible to appear on ballots in the state, attempted to repeat his success Thursday but soon discovered the road forward had not similarly been ideologically greased.

Justice Kagan, for instance, said to Murray, "The question you have to confront is why a single state should decide who gets to be president of the United States. In other words, you know, this question of whether a former president is disqualified for insurrection to be president again is — just say it — it sounds awfully national to me."

"So whatever means there are to enforce it would suggest that they have to be federal, national means," continued Kagan. "If you weren't from Colorado and you were from Wisconsin or you were from Michigan and ... what the Michigan secretary of state did is going to make the difference between, you know, whether candidate A is elected or candidate B is elected. That seems quite extraordinary, doesn't it?"

"Why should a single state have the ability to make this determination, not only for their own citizens, but for the rest of the nation?" added Kagan.

— (@)

Chief Justice John Roberts echoed Kagan's concern, suggesting states would likely weaponize such a precedent and proceed to knock other candidates off the ballot, reported CNN.

"It'll come down to just a handful of states that are going to decide the presidential election," said Roberts. "That's a pretty daunting consequence."

Justice Thomas was even less forgiving when questioning Murray.

Thomas pressed Murray to cite examples of national candidates who have similarly been disqualified — possibly Confederates running for high office "after Reconstruction and after the compromise of 1877 and during the period of Redeemers."

"There were certainly national candidates who were disqualified by Congress refusing to seat them," replied Murray.

"I understand that, but that's not this case," Thomas fired back. "States disqualified them; that's what we're talking about here. I understand Congress would not seat them."

"Again, your honor, [the absence of examples] is not surprising because there wouldn't have been — states certainly wouldn't have the authority to remove a sitting—," Murray said before being cut off by Thomas.

"So what was the purpose of the Section 3? States were sending people. The concern was that the former Confederate states would continue being bad actors, and the effort was to prevent them from doing this," said Thomas. "And you're saying that ... this also authorized states to disqualify candidates. So what I'm asking you for, if you are right, [is] what are the examples?"

Murray alluded to examples of states excluding candidates from holding state offices, but was cut off again by Thomas, who said, "I understand the states controlling state elections and state positions. What we are talking about are national candidates. ... Do you have any examples of this?"

Murray apparently did not.

— (@)

Justice Kavanaugh indicated there were already mechanisms in place to prevent insurrectionists from holding office, intimating Colorado was overreaching.

"Some of the rhetoric of your position — I don't think it is your position — but some of the rhetoric of your position seems to suggest unless the states can do this, no one can prevent insurrectionists from holding federal office," said Kavanaugh. "But obviously Congress has enacted statutes, including one still in effect, Section 2383 of Title 18 prohibits insurrection; it's a federal criminal statute. And if you're convicted of that, you are, it says 'shall be disqualified from holding any office.' And so there is a federal statute on the books, but President Trump has not been charged with that. So what are we to make of that?"

— (@)

Kavanaugh also suggested that the effort to remove Trump from the ballot "has the effect of disenfranchising voters to a significant degree."

Justice Brown cast doubt on whether the Framers intended Section 3 to be used as Murray argued it should be.

"I'm wondering really whether presidential elections were such a circumstance, that the Framers actually envisioned states enforcing Section 3 with respect to presidential elections as opposed to senatorial elections, representatives, the sort of more local concerns," said Brown.

"The more broad point I want to make is that what is very clear from the history is that the Framers were concerned about charismatic rebels who might rise through the ranks up to and including the presidency of the United States," said Murray.

"But then why didn't they put the word 'president' in the very enumerated list in Section 3?" asked Brown. "The thing that really is troubling to me is — I totally understand your argument — but they were listing people that were barred, and president is not there. So I guess that just makes me worried that maybe they weren't focusing on the president."

Brown added, "The fact that electors of vice president and president are there suggests that really what [the Framers] thought was, 'If we're worried about the charismatic person, we're going to bar insurrectionist electors and therefore that person is never going to rise."

— (@)

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Hillary Clinton claims 'the hard-right' wants Supreme Court justices who roll back 'constitutional decisions'



Former Secretary of State Hillary Clinton claimed that "the hard-right agenda" is to place justices on the Supreme Court who will roll back "constitutional decisions."

"The Supreme Court's recent rulings were sadly predictable for anyone who understands the hard-right agenda. Their goal has always been to install Justices whose job is to turn back the clock on our freedoms, on decades of constitutional decisions, and on our continuing struggle to 'form a more perfect union' that includes all of us. Let's vote out their political enablers and rein in the dark, subversive money that supports them in their quest to reverse a century of progress," Clinton tweeted.

Clinton, the Democrat who lost the 2016 presidential contest to Republican Donald Trump, shared a screenshot of a January 2016 tweet in which she claimed, "A Republican president could stack the Supreme Court with justices who will rip away all of the progress we've made."

— (@)

Someone who responded to Clinton's claims tweeted, "The Supreme Court upheld the Constitution and the Rule of Law. These are things Hillary Clinton knows nothing about."

"Following the Constitution is not 'Hard Right,'" someone else wrote.

But others, like American Federation of Teachers president Randi Weingarten, expressed support for Clinton's comments. "You were right then," Weingarten wrote, adding, "and you are right now!!"

As president, Trump nominated three of the nine justices who are currently serving on the high court.

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