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June is coming to an end, which means all the most controversial SCOTUS opinions are coming out in the traditional big lump. These opinions are sharply divided, often along ideological lines, with lively dissents and concurrences--pretty enjoyable for a law nerd like me. Relevant to this thread, these cases tend to focus on big culture-war topics like abortion and gender stuff. This week saw the following:
Medina v. Planned Parenthood South Atlantic - Abortion. Congress requires States who receive Medicaid funds to, among other things, permit patients to obtain medical assistance from "any qualified provider." South Carolina receives federal Medicaid funding, but excludes Planned Parenthood from its Medicaid program because state law prohibits using public funds for abortion. Planned Parenthood files a section 1983 claim (this is important, IMO) arguing that it is a "qualified provider" and that Congress's Medicaid statute created a federal right for any qualified provider to receive Medicaid funds. The court, with a 6-3 conservative-liberal split, says "no." Gorsuch writes the majority opinion: the "any-qualified-provider" provision of the federal Medicaid statute does not create a right for medical providers to receive Medicaid funding. All it does is specify a condition with which participating States must "substantially comply" in order to receive federal funding. If South Carolina doesn't want to comply, the feds can kick South Carolina out of the Medicaid program, but that's not the same as creating a "right" to Medicaid funds. Section 1983 is only for vindication of a person's federal rights; there is no right for a provider to receive Medicaid funding from a State, so Planned Parenthood doesn't have a valid 1983 claim. Jackson writes the dissent; I didn't really read it carefully, because the majority seems clearly to have the better argument here. Everyone agrees that South Carolina could, if it wanted to, simply reject federal funding altogether. Then nobody in South Carolina would get Medicaid funding, and South Carolina wouldn't have to abide by any of the provisions of the Medicaid statute. It's hard to say that people have an enforceable federal "right" to receive Medicaid funding from a state, when everyone acknowledges that the state has no obligation to participate in the Medicaid system at all.
Free Speech Coalition, Inc. v. Paxton - Pornography 6-3 conservative opinion, Thomas. First Amendment does not prohibit Texas from requiring age-verification for pornographic websites. Kagan writes the dissent.
Mahmoud v. Taylor - LGBTQ+ Books and Lessons in Schools 6-3 conservative opinion, Alito. Religious students and parents have a constitutional right, under the free exercise clause, to opt-out of pro-LGBTQ+ curricula in public schools. Thomas writes a concurrence. Sotomayor wrote the dissent.
In my opinion, the biggest case today was:
Trump v. CASA, Inc. - Immigration BUT ACTUALLY Federal Court Procedure (sounds boring but is, IMO, super important) 6-3 conservative opinion, Barrett. 3 concurrences! 2 dissents! This is the "birthright citizenship" case: does the Court agree with the Trump administration that some people born on U.S. soil are nevertheless not American citizens? IDK! Because the Court doesn't answer that question. Instead, it addresses whether the lower federal court had the authority to issue a nationwide injunction against the Trump administration's immigration enforcement proceedings. The Court held it did not have that authority. Federal courts can only determine cases and issue binding decisions as to the parties before them, not the country as a whole. The lower court's national injunction is stayed as to any people not among the parties to the suit.
Some are saying the Court "punted" on the birthright citizenship thing, but I think the Court actually addressed a far more important culture-war issue. "Nationwide" or "universal" injunctions have been part of the playbook for activists' (especially progressive activists) lawfare for a long time. The idea is to find some sympathetic plaintiff who would be affected by a statute or executive action you don't like, shop around the whole country until you find a judge who agrees with you, and then get that judge--before the case has even been tried--to indefinitely prevent the government from applying the challenged law/regulation/action to anyone, anywhere in the country. This opinion represents a potentially huge obstacle to progressive activist's attempts to stymie Trump's immigration agenda.
Less interesting cases, IMO:
Gutierrez v. Saenz - Criminal Procedure. A lurid murder case gives rise to a pretty boring dispute about death-row inmates' standing to request post-conviction testing of DNA evidence. I can't really figure out the nuances of the Texas law at issue or the procedural history, but it looks like the Sotomayor-led majority thinks Gutierrez has standing; he has a Fourteenth Amendment liberty interest in the ability to request post-conviction DNA testing, even though the prosecutor apparently has both the right and the express intention to refuse that request in this case. Barrett concurs but chides the majority for "muddying the waters of standing doctrine." Alito, joined by Thomas and Gorsuch, dissents. Thomas, typically, offers a solo dissent on the quixotic ground that the Fourteenth Amendment has been misinterpreted by the Supreme Court since the early twentieth century; in his view, the "liberty" interests protected by the 14A do not include state-created entitlements like Texas' post-conviction DNA testing procedure. My read: SCOTUS lets a death-row inmate file a doomed, pointless post-conviction motion that doesn't have any hope of success but will probably delay his execution for a few more years (Gutierrez was convicted in 1998).
Riley v. Bondi - Immigration/Deportation. Deportation is a hot-button topic right now, but this opinion about filing deadlines and the distinction between claims-processing rules and jurisdictional requirements is too dry for me to get worked up about. Perhaps notable for the fact that Gorsuch broke from the conservative majority to join, in part, Sotomayor's dissent. Pretty boring overall!
There were others, but they don't have as much culture war salience as the above, IMO. I meant to do a longer write-up, a little paragraph for each case, but I'm too tired ... sorry
I'm honestly a bit frightened by this one. I don't find most of Trump's stuff all that worrisome but this seems potentially pretty society altering.
My parents were illegal immigrants. They had me here in the late 70s so I had citizenship by birth. My parents have since received amnesty and even applied for citizenship and received it as well. But I think if the EO holds I don't see why they could not apply this retroactively. If it makes sense to do it for the future it makes sense to do it for the past too.
My parents would have more standing to stay in the US than I would.
Would be kind of funny to have to pack up and start a new life in the old country though in middle age.
It genuinely should be done. Amnesty was a mistake, generously; more cynically, it was treachery. Birthright citizenship is insane, and rewarding illegals for bleeding on our magic soil is deeply infuriating.
Framing citizenship as a "reward" is completely nonsensical. Citizenship is the codified form of the chains of responsibility and liberty that bind individuals and their communities together. Whether someone is born to illegal parents has no bearing on whether they dutifully maintain those chains. You're correct that dirt isn't magic, but you're completely ignoring the fact that blood isn't either-- citizens by Jus Sanguis don't have an intrinsically stronger claim. Rather, it's mundane, ordinary, sweat that ultimately cements the body politic together, and the children of illegal immigrants donate plenty of theirs. Understanding that, America grants them their citizenship without regard for the the sins of their fathers. And that would be the right, and just, and honorable way to do things even if illegal immigrants and their children weren't an economic net positive.
(I could accept the argument that America shouldn't extend citizenship to people who don't work or pay taxes in america. But only if you apply it globally and say that at the minimum America should ban dual citizenship for everyone, and at maximum all expats should be given nansen passports.)
It is functionally a reward though, and one that people are keen to give to their kids. First because the kid get access to all the benefits of being an American, but secondly that a lot of immigration law can be gamed by having a minor child who is an American. Things like priority for immigration through family connections. Or being able to live in Mexico and send your kids to American schools, or access to American healthcare. There are cases in which women will wait until literally in labor before crossing the border in hopes that the baby will be born in America and be American.
I’m not opposed to granting citizenship to a child born to legal immigrants who have lived in America for years and work and pay taxes and are working toward citizenship. It’s reasonable that if the family moved here and wants to remain that the child gets to be born an American. What isn’t right is a person sneaking in with the intention of giving birth in America and no actual legal connections to America beyond popping out a kid.
The gist of your argument is, "illegal immigration is bad. Receiving the benefits of having a citizen child is good. If we link the latter to the former we are giving people good things for doing bad things. This is unjust." I disagree with the premise (illegal immigration is better than legal immigration because they have to pay taxes but don't get welfare), but admit that it's logically sound. It's also, however, missing the point. Birthright citizenship isn't about the immigrant, it's about the baby. Yes, those children benefit from schools and healthcare-- but so do the children of american citizens. Neither the child by blood nor the child by soil have a "right" to that education or healthcare, but we as a society have pragmatically and compassionately decided to invest in our children in the (well founded) hope that they will one day repay the favor. And in the meantime, we expect our children-- of citizens and noncitizens both-- to earn their rights to vote and run for office, as delimited by the laws that make explicit our social contract.
If you think that education or healthcare are bad investments, you're welcome to argue for that. If you think that illegal immigrants should receive fewer benefits for giving birth to citizen children, you're welcome to argue that too. If you think our social contract asks for too little in return for too much.... well, I'm already pretty sympathetic to that position. But that's all orthogonal to my argument that blood confers no special qualities relative to soil.
I’m arguing that having a citizen in the family does in fact benefit the entire family including entitling the child to benefits that might well be unavailable in the home country thus creating a strong inducement to do anything possible to have the baby in America. And that without skin in the game of some form, it’s a big problem.
And the whole thing is about the immigrant because the baby doesn’t drop down from outer space. The stork didn’t deliver the baby, Scottie didn’t beam down the baby, the baby came from a woman who had sex with her husband. And therefore creating benefits for the baby by necessity creates benefits for tge family that created the baby. And I think you should very careful about how tge thing is handled.
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