On Birthright Citizenship

On President Trump's first day in office, he signed an Executive Order changing the rules for birthright citizenship. This Executive Order has been struck down by every federal judge who has considered the issue. The problem for Trump is that the Order violates the plain language of the 14th Amendment, which says that if you are born here, you are a citizen.

The substantive issue was not before the Supreme Court in yesterday's argument. What was before the Court was whether a single federal district court judge can issue an injuncton which applies nationwide.

All 21st-century presidents have complained about this. The problem is the judge-shopping which both sides have been guilty of. Conservatives file cases in red Texas, and liberals file cases in blue California, and the judges then issue injuntions which apply nationwide.

The problem for the Supreme Court justices is this: how do we fashion a rule which limits the ability of a single judge to issue these sweeping rulings? What the justices want to do is allow such a sweeping ruling when the issue is clear, as it is in the birthright citizenship case, but limit it in the more questionable cases. In their questioning yesterday, all of the justices recognized the problem, but none proposed a workable solution.

The problem with allowing a district court ruling to apply only to the litigants who brought the case to court is that every single aggrieved person would then have to bring their own lawsuit to obtain justice, a clearly untenable result. Amy Coney Barrett seemed to be joining the three liberal justices yesterday, but it is not clear what sort of ruling will command the support of a court majority. This is a hard case which will likely result in bad law.