SCOTUS: Constitution means what it says

Three solid rulings

In a second day of rulings, the Supreme Court once again made MAGA heads explode. However, as with Monday’s rulings, both sides have something to celebrate and something to mourn. Unlike Monday, Tuesday’s rulings seem to be more consistent and on firmer constitutional ground. (Also, unlike Monday, I did read through the actual decisions and dissents for Tuesday. Many of the briefs are pretty brief. [legal humor])

Tuesday’s main event was the birthright citizenship ruling. This long-awaited decision affirmed the plain language of the Constitution. Chief Justice Roberts was once again the author of the decision and led a 6-3 majority that included Barrett, Sotomayor, Kagan, Jackson, and, in part, Kavanaugh. For a case that involved the plain and simple language of the Constitution, this was a lot closer than it should have been, but it was still a big win for the rule of law.

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In the case, Trump v. Barbara, the disagreement centered on what the 14th Amendment meant when it said, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” In particular, the question involved the meaning of “subject to the jurisdiction.”

This seems a no-brainer because illegal immigrants are clearly subject to US jurisdiction, because they can be arrested and tried in our courts. The majority agreed, and noted that “ jus soli, or right of the soil” predated the Constitution in English common law.

Roberts points out that the language of the 14th Amendment mirrors the language of common law, and then goes on to specifically reject the argument that illegal aliens are not subject to US jurisdiction.

“The narrow exceptions to jurisdiction arose where exercising jurisdiction would ‘degrade the dignity’ of ‘foreign sovereigns’—most frequently in the case of ‘foreign ministers.,’” Roberts wrote. “But private individuals who traveled to the United States for ‘business or caprice’ were ‘amenable to the jurisdiction of the country.’ Children born in the United States to parents unlawfully or temporarily present here are thus subject to the Nation’s jurisdiction.” [emphasis mine]

The dissents fall flat. Justice Alito argues, “The Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.” But the text of the amendment specifies a condition of jurisdiction, not allegiance.

In another long dissent, Justice Thomas puts his eggs in the basket that the Framers intended for citizenship to apply to those who are “domiciled” in the US. Again, that defies the plain language of the amendment.

In Kavanaugh’s partial dissent, he argues that Congress used the same language from the 14th Amendment in the Nationality Act of 1940 and the Nationality Act of 1952. This language, he notes, was used by the Court to affirm birthright citizenship in Wong Kim Ark.

“The Executive Order goes beyond what [statutory law] authorizes,” Kavanaugh wrote. “For the Executive Order to be lawful, therefore, Congress would need to amend [current law] or otherwise enact new legislation to encompass those two new exceptions. As of now, Congress has not done so.”

In other words, in Kavanaugh’s view, the 14th Amendment does not explicitly guarantee birthright citizenship, but existing immigration statutes do. Going further, Kavanaugh points out that an Executive Order cannot overrule a statutory law passed by Congress. If Congress decided to pass a law expanding exceptions to birthright citizenship, for example, setting a 12-month residency requirement for the mother, Kavanaugh would likely uphold that statute.

I’m going to nitpick the “text, history, and tradition” doctrine of the Court for a moment here as well. Kavanaugh writes that “significant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868 and that the Framers of the Fourteenth Amendment could not have fully anticipated. And the Framers likely would not have anticipated.”

That’s true, but there are a lot of other things the Framers could not have anticipated as well. Among these are automatic weapons and mass shootings. Would the Court’s dissenters be as flexible with gun laws as they want to be with immigration law? My guess is that they would not. As a result, it’s better to stick with the text of the law than with what the Framers would have done under different circumstances. What Kavanaugh is suggesting is no different than the left’s “living Constitution.”

Kavanaugh’s statement also puts a finger on another problem with text, history, and tradition. When we face problems that the Framers never faced or even dreamed of, history and tradition aren’t very helpful. Laws can be constitutional, even if no similar law has been passed in our history.

It is disturbing to watch as the Court’s self-proclaimed constitutionalists become enamored with the “mystical aphorisms of the fortune cookie” in their jurisprudence after they became the majority on the Court, much the same as the Republican Party’s conservatives found a new love for government overreach. Thomas and Alito have been particularly disappointing.

Speaking of the left, they are enraptured over the birthright citizenship ruling, but they are likely to be enraged over a different decision. Or two.

The bigger case of the two was West Virginia v. BPJ, a ruling that upheld the authority of states to ban biological males from competing on female sports teams. The 6-3 ruling was split along ideological lines, with Sotomayor, Kagan, and Jackson dissenting.

The core of the ruling, authored by Kavanaugh, was the statement: “Title IX allows schools to provide separate women’s and men’s sports teams defined by biological sex.”

Again, I’d say this is the correct outcome based on a plain reading of the law, as well as common sense, which often has nothing to do with the law. As Kavanaugh spells out, “The term ‘sex’ in Title IX, the Javits Amendment, and the Title IX regulations cannot plausibly be interpreted to refer to anything other than biological sex.”

The dissenters don’t seem to have a serious argument against the wording of the law, but rather base their dissent on emotions. Justice Sotomayor wrote for the minority, “The majority extends great sympathy to those it favors: the young cisgender girls and women who play sports. I share that sympathy. Playing sports can lead to benefits that are immeasurable, and many are understandably invested in ensuring that competition stays fair and safe. Because the majority, however, inflicts a hardship on those it disfavors without giving them the fair and full opportunity the Constitution requires to litigate their contentions, I respectfully dissent.”

I don’t have any particular animus against transgender people, and I don’t think that transgender boys playing on girls’ team constitutes any sort of emergency, but I do agree with the majority that the plain language of the law and the concept of federalism, which also came up in the mail ballot case yesterday, means that the states get to work these things out for themselves in the laboratories of democracy.

If the left does not like the outcome here, I’d tell them the same thing that I’d tell the right on birthright citizenship and mail-in ballots, namely that there is a process to change laws that you don’t like. That process is centered on the legislature and not the courts or the presidency.

The final case for Tuesday was National Republican Senatorial Committee v. Federal Election Commission, which overturned a 2001 decision upholding campaign finance limits on coordinated expenditures by the parties and candidates. This was another 6-3 decision along party lines.

“Ultimately, the First Amendment question in this case boils down to whether [the Federal Election Campaign Act’s] limits on political-party coordinated expenditures are permissible in order to prevent circumvention of the base limits on contributions to candidates through earmarked contributions to parties,” Kavanaugh wrote for the majority.

Answering himself, Kavanaugh says, “ The Court agrees with petitioners that the political-party coordinated-expenditure limits are not proportionate, necessary, and narrowly tailored given the other less-speech-restrictive tools available to the Government to prevent circumvention—in particular, earmarking and disclosure laws.”

Here, as well, I agree with the majority. I tend to be an absolutist on free speech. Let people and parties say what they want, but disclose who is paying for it.

There is a chance that this ruling may help to strengthen the political parties against disruptive outsiders in the future. At least part of the political mess that we find ourselves in is due to the lack of influence of party leaders. Now, if we could just get rid of primaries.

Over the past two days, the Court has exploded the view that it is a rubber stamp for Donald Trump. The president and Republicans won some and lost some big ones, although not by as much as I would have liked.

Again, these rulings underscore the importance of electing good people. If we have reached a point where we are depending upon nine justices to preserve our rights and freedoms, then we are already much too far down the road of tyranny. And if we came within two votes of millions of Americans potentially losing their citizenship, there is ample evidence that freedom is endangered for many of us.

This week, Donald Trump’s own appointees often acted to stymie his power grabs, but in the future, it may not always be true that we have such independent justices on the bench. It is very important that we elect presidents who will nominate good judges (one of the few areas where I think Trump has done well, albeit unintentionally; he wanted justices who would be personally loyal) and senators who will confirm the good ones and dismiss the bad ones.

MORE BAD SCOTUS NEWS FOR TRUMP In another blow to Trump, the Supreme Court refused to overturn his civil judgment for the rape and sexual abuse of E. Jean Carroll. Trump owes Carroll $5 million for his actions, and it now seems that he will have to pay up.

CLARITY FROM KAVANAUGH Yesterday, I speculated that the difference between the Cook and Slaughter rulings may have been the importance of the Federal Reserve to the economy. In his concurrence, Kavanaugh seems to have admitted as much:

Even temporary uncertainty about the status of the Federal Reserve could spark political upheaval, including confusion about whether the President could immediately remove multiple Governors at will, as well as turmoil in the U. S. and world economies. I would not go down that road. I would not risk destabilizing the U. S. economy just so that we can further mull over an issue that, in various permutations, we have been thinking about for many years.

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