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This past Wednesday at the Supreme Court saw oral arguments in Trump v. Barbara. For those not following along this is the birthright citizenship executive order case. You can find the full transcript here.
As someone who listened to the live audio and has now read back over the transcript a couple times I think things went pretty poorly for the government. So much so I wonder if this was the straw that broke the camel's back with respect to firing Bondi. I'm very confident this case is going to be 7-2, if not 9-0, against the government.I'm not going to rehearse all the arguments, it's very long.
The government's oral argument mostly focused on the idea that for a child to be subject to the jurisdiction of the United States for the purposes of the 14th amendment their parents had to be domiciled here. Where domicile requires (1) lawful presence and (2) intent to stay. The justices (principally Gorsuch, ABC, and KBJ) poke a bunch of holes in this argument. Pointing out both practical and theoretical issues with both parts of the definition. It is not my impression that the justices were especially convinced by Sauer's answers to those questions.
The respondent's oral argument, by my read, was much more focused. Why did Wong Kim Ark mention domicile in some contradictory ways as to whether it mattered? How to understand the association between the posited set of exceptions. If the different language of the Civil Rights Act of 1866 was any guide in interpreting the 14th amendment. Interestingly Justice Alito even jumped in on this first one to volunteer a reason why Wong Kim Ark might mention domicile in the question and the holding without having incorporated it into the relevant test.
This is all tea-leaf-reading, of course, but my current read is the government is very likely to lose.
This is the same SCOTUS which reverted Roe v Wade, because they correctly felt that that decision was legislating from the bench, interpreting stuff into the constitution which was plainly not in it. To rule that the 14th does not say what it says because there is some nitpick about subject to the jurisdiction would be just as much judicial activism as the Roe ruling.
Of course, this would not be the first time that Trump loses 9-0 in the SCOTUS. Other presidents might try to avoid having their cases torn apart by the court, feeling that making arguments which few if any Justices will follow would reflect badly on them, but the Trump administration obviously does not care.
From a policy disruption perspective, I completely agree with you.
From a pedantic lawyer perspective, I disagree. Roe didn't even pretend to base its holding on some sort of textual hook in the Constitution. Instead, it was explicitly based on another judge-made doctrine about an alleged "right to personal privacy," which admittedly "The Constitution does not explicitly mention," but judges have found to be implied either by "the First Amendment . . . the Fourth and Fifth Amendments . . . or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment" (or possibly in the Ninth Amendment's general reservation of rights to the people...the Court isn't fussy about which particular justification is taken up; dealer's choice).
Instead, it's purely based on the court's own policy preferences, taking into account the opinions of the Bar, AMA, history of the Hippocratic oath, etc.
I would slightly disagree with your formulation that that aren’t unenumerated rights that the federal government (and state governments) can not infringe.
The entire anti federalist argument against the bill of rights was that people may assume that what was not written meant the government could invade those rights. The response was the 9th and 10th.
And there are certain rights (rights of Englishmen) that were long standing that were not reduced to writing. But they need to be carefully limited grounded in history and traditionalist justices supplement their will for democratic will.
Abortion pretty clearly was not an August right enjoined by all. It was in fact illegal in the vast majority of states. There was no recorded strong history of allowing abortion. The rules pointed to were presumptions (as it was hard to delineate between miscarriages and abortions).
Which, it turns out, was completely and trivially correct (the 9th was poorly-written but it's not like they could have done any better at the time)- they already invade the ones that are written down and invent novel legal theories to do so; how much worse would it be for the ones that are not (and are unpopular enough that would need a right to protect them)?
Sure they were positively correct. But that doesn’t mean unenumerated rights don’t exist in the U.S. constitutional system.
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