Thinking Citizen Blog — “Splitting The Baby” — Birthright Citizenship And Nationwide Injunctions — Is Compromise Possible?
Thinking Citizen Blog — Saturday is Justice, Freedom, Law, and Values Day
Today’s Topic — “Splitting the Baby” — Birthright Citizenship and Nationwide Injunctions — is compromise possible?
Should a President by executive order be able to end a tradition that has lasted 150 years, is enshrined in the Constitution, and has been supported by multiple Supreme Court decisions?
In my gut: no! absolutely not!
Should any one of 663 Article 3 district judges be able to stop any duly elected President of the United States in his tracks to implement a policy he deems right and just?
In my gut: no! absolutely not!
What does your gut say? What does your legal training say? Will the court “split the baby”?
The moment is reminiscent of Marbury v Madison when the court technically gave the victory to Thomas Jefferson but, beneath the surface, established the principle of judicial review a doctrine anathema to Jefferson.
How much should a thinking citizenship know about the legal technicalities? What will the Supreme Court decide? What would you decide? What is the best article you have read on the intertwined issues of birthright citizenship and nationwide injunctions?
Experts — please chime in. Correct, elaborate, elucidate.
BIRTHRIGHT CITIZENSHIP — enshrined in the 14th amendment to the Constitution
1. The 14th Amendment is not just any amendment. In many ways it was a new Magna Carta.
2. “United States citizenship can be acquired by birthright in two situations: by virtue of the person’s birth within United States territory (jus soli) or because at least one of there parents was a US citizen at the time of the person’s birth (jus sanguinis).”
3. “The term “jurisdiction” was carefully chosen to intentionally exclude U.S.-born children of foreign diplomats and Native Americans living under tribal sovereignty.This understanding of indigenous sovereignty was eventually undone by the Indian Citizenship Act of 1924, and over time Congress and the courts did the same for unincorporated territories of Puerto Rical, the Marianas (Guam and the Northern Mariana Islands) and the US Virgin islands (notably excluding American Samoa.”
NATIONWIDE INJUNCTIONS — “injunctive relief in which the court binds the federal government even in relations to nonparties”
1. “For the first 175 years of the republic, courts typically did not enjoin defendants with respect to nonparties, especially if that defendant was the federal government. Some scholars have estimated that American federal courts issued a dozen nationwide injunctions during this time, while others have estimated that American federal courts issued zero nationwide injunctions during this time.” So what’s the right number?
2. “Courts issued an average of 1.5 nationwide injunctions per year against the Reagan, Clinton, and George W. Bush administrations.”
3. “According to the Department of Justice, federal courts issued 19 or 20 nationwide injunctions against the Obama administration, including many on high-profile legal and political issues.” In the first year of the first Trump administration, 20 nationwide injunctions were issued.
NB: Are nationwide injunctions unconstitutional and bad (Professor Samuel Bray)? or constitutional and good (Professor Milo Sohoni)?
TRUMP V CASA (2025) — “While Trump v. CASA does not directly address birthright citizenship in the United States, it centers on several universal injunctions blocking Executive Order 14160" (which redefined the citizenship clause of the 14th amendment — excluding the children of non-citizens)
1. Does Executive Order 14160 “protect the meaning and value of American citizenship” or does it undermine it? Does it gut the spirit of the Statue of Liberty and the inscription on it written by Emma Lazarus: “Give me your tired, your poor, your huddled masses yearning to breathe free.”
2. Trump v Casa consolidates three cases: Trump v Casa, Inc, Trump v New Jersey, and Trump v Washington.
3. “On January 21, Attorney General of Washington Nick Brown filed suit against the Trump administration in the United District Court for the Western District of Washinton, arguing that the order violates the 14th Amendment and federal immigration law. The lawsuit was joined by Arizona, Oregon, and Illinois.”
NB. “On January 21, a lawsuit challenging the order was filed in the United States District Court for the District of Massachusetts by eighteen state attorneys general and the cities of San Francisco and Washington DC, led by Attorney General of New Jersey Matthew J. Platkin.”
https://en.wikipedia.org/wiki/Executive_Order_14160
https://en.wikipedia.org/wiki/Judgement_of_Solomon
https://en.wikipedia.org/wiki/Trump_v._CASA
What judges have said about birthright citizenship and nationwide injunctions
https://en.wikipedia.org/wiki/Birthright_citizenship_in_the_United_States
https://en.wikipedia.org/wiki/Emma_Lazarus
https://en.wikipedia.org/wiki/The_New_Colossus
QUOTE OF THE MONTH
“Make your own Bible. Select and collect all the words and sentences that in all your readings have been to you like the blast of a trumpet.”
- Ralph Waldo Emerson
My spin — then periodically review, re-rank, and exchange your list with those you love. I call this the “Orion Exchange” because seven is about as many as any human can digest at a time. Game?
For the last four years of posts organized by theme:
PDF with headlines — Google Drive
Four special attachments below:
#1 A graphic guide to justice (9 metaphors on one page).
#2 “39 Songs, Prayers, and Poems: the Keys to the Hearts of Seven Billion People” — Adams House Senior Common Room Presentation, (11/17/20)
#4 Palestine Orion (Decision) — let’s exchange Orions, let’s find Rumi’s field (“Beyond all ideas of right and wrong, there is a field. Meet me there” Rumi, 13 century Persian Sufi mystic)
YOUR TURN
Please share the coolest thing you learned in the last week related to justice, freedom, the law or basic values.
Or the coolest, most important thing you learned in your life related to justice, freedom, the law, or basic values.
Or just some random justice-related fact that blew you away.
This is your chance to make someone’s day. Or to cement in your mind something that you might otherwise forget. Or to think more deeply about something dear to your heart.
