There are 3 decisions of note I'll discuss in this post:
All 3 of these issues with which I have notably disagreed with Trump's perspective. The first is birthright citizenship, which Trump virulently denies; the second involves a post-election mail ballot postal delivery grace period in Mississippi (Trump opposes mail-in ballots), and the third case was Trump's attempt to assert at will vs due cause termination of Lisa Cook, an attempt to assert control over the politically independent Federal Reserve, which establishes interest rate policy to temper inflation or stimulate a recessionary economy.
I'm not going to argue here as an expert on constitutional law, but I believe my arguments are constitutionally principled. I have posted frequently on birthright citizenship. particularly on X/Twitter. The controversy is based on this part of the
14th Amendment Note that there is no discussion of parental legal status or any other condition--except for "subject to the jurisdiction". A lot of immigration restrictionists try to argue that aliens and their American-born children owe allegiance to their parents' home countries. However, this language really refers to diplomats, who enjoy immunity from US laws. Via Google AI:
I've noted that law and order conservatives don't ever argue that rare murders by aliens can't be charged for immunity reasons. Aliens have to pay our taxes, obey our traffic laws, etc.
Now I haven't read Justice Thomas minority dissent from Chief Justice Roberts' 5-4 majority opinion striking down Trump's executive order citizenship restrictions based on parental legal status, but I've heard it paraphrased as something to the effect of what the hell was the post-slavery era worried about, alien kids. If so, he got that totally wrong. I've repeatedly tweeted about the 1844 NY Lynch v Clarke case, which, based on common law jus soli, held the American-born daughter of Irish aliens was a citizen Note that before the 14th Amendment, American-born slaves did not hold citizenship. Unconditional birthright citizenship overruled this exception.
The Trumpkins clearly wanted to advance
conditional jus soli, like the British in 1981 and certain other European countries
Unrestricted Birthright Citizenship
What countries have birthright citizenship?
Below is a list of 35 countries with unrestricted born-in-a-country citizenship, i.e., that unconditionally endow citizenship to anyone born in their jurisdiction.
Note that this list can change as more countries adopt more restrictive measures on their birthright citizenship laws.
Antigua and Barbuda
Argentina
Barbados
Belize
Bolivia
Brazil
Canada
Chad
Chile
Costa Rica
Cuba
Dominica
Ecuador
El Salvador
Fiji
Grenada
Guatemala
Guyana
Honduras
Jamaica
Lesotho
Mexico
Nicaragua
Panama
Paraguay
Peru
St. Kitts and Nevis
St. Lucia
St. Vincent and the Grenadines
Tanzania
Trinidad and Tobago
Tuvalu
United States
Uruguay
Venezuela
Note that Antigua and Barbuda, Dominica, Grenada, St. Kitts and Nevis, and St. Lucia all allow unrestricted birthright citizenship. Any children you give birth to in these Caribbean countries will be citizens, even if you yourself are not yet a citizen—e.g., still processing your citizenship by investment or naturalization application.
Birthright Citizenship With Conditions
What countries have birthright citizenship but with attached conditions? The following 40 countries offer conditional birthright citizenship.
Australia
Bahrain
Belgium
Cambodia
Colombia
Cyprus
Dominican Republic
Egypt
Finland
France
Germany
Greece
Hong Kong
India
Iran
Ireland
Israel
Italy
Japan
Luxembourg
Macau
Malaysia
Malta
Mongolia
Morocco
Namibia
Netherlands
New Zealand
Pakistan
Portugal
Sao Tome and Principe
South Africa
Spain
Sudan
Sweden
Taiwan
Thailand
Tunisia
Ukraine
United Kingdom
The issue, as Chief Justice Roberts rightly notes that conditions are not authorized in the language of the Amendment. This is conceptually similar to when conservatives wanted to add term limits to Congressional office. But the Constitution does not enable that constraint. You would need an amendment. Same story for parental legal status on citizenship.
Kavanaugh does make the valid point that Trump cannot unilaterally overwrite (unconditional jus soli) laws. Trying to pass Trump's unconstitutional executive order into law would still violate the amendment.
Finally, one of my key daily sources for post content is historian Brion McClanahan. Brion has been sympathetic to a conditional jus soli. Although he acknowledged that SCOTUS could uphold the existing status quo of unconditional jus soli, he clearly leaned toward the view that SCOTUS would impose restrictions. This is a guy who preaches reliance on source documents. It's not clear what authorized those restrictions. Also, he never acknowledges the Lynch-Clarke case or the fact that it was specifically discussed during the hearings of the 14th Amendment
During a relevant recent episode. McClanahan ridiculed Justice Roberts' reference to jus soli and common law, arguing that we are not a monarchy and hence the construct doesn't make sense. It's not the first time I've disagreed with him, but I expected more due diligence on his part, as described
One principle I share with McClanahan is a balance of state and federal courts in our federalist system. Why are the Mississippi election's 5-day postal delivery grace periods for ballots, which are postmarked by election day, being reviewed by SCOTUS? Keep in mind that MS is a red state, and
mail-in ballots are primarily available there for the convenience of seniors, the disabled, and those away from home on election day, like soldiers overseas.
There are multiple reasons why some results are not called early, as if anyone else remembers the weeks over Bush's 2000 Florida election recount (via
here)
In fact, very few votes are usually received after election day. Via
votebeat:
Republicans tend to be paranoid because, in many cases, they've not benefited from the late vote counts. To me, this restriction, like the unconstitutional SAVE Act, basically disenfranchises valid voters.
The Constitution does not give the feds the right to regulate state elections. Look how we have specific amendments to ensure access for minorities, women, the age minimum, ban poll taxes, or literacy tests.
In most general elections, only 1-3 federal elections are on the ballot. The overwhelming majority of races or issues are state- or local-level. It makes no sense that the feds control ballots. What we recall in particular is Mafia-in-Chief demanding that GA GOP state leaders reverse the election results. This violated Georgia law, and Trump should face the consequences, not benefit from a conflict of interest in the prosecutors' office, which has nothing to do with Trump's criminal actions.
I do not want Trump with unconventional weapons to intimidate other state leaders. Justice Barrett argued that the MS law was consistent with the general election mandate. Barrett pointed out that relevant federal election law did not establish a ballot receipt deadline. (Note that one of Trump's unconstitutional executive orders tried to ban ballot grace periods) Note that some libertarianss disagree with me arguing election day contradicts the notion of a grace period. I counter that the principle of subsidiarity devolves election authority to the state/local level.
Finally, we have a nuanced situation among independent agencies and the President's ability to fire at will.
Earlier, in Trump v. Slaughter, SCOTUS overturned the Humphreys Executor precedent, which had restricted the POTUS from firing agency principals, like FCC commissioners, over policy differences. But the Federal Reserve differs from other agencies, including funding:
Trump has repeatedly tried to intimidate the Fed into lowering rates to stimulate the economy; the problem, of course, is that this undermines the Fed's inflation-control mandate. Trump targeted Lisa Cook so he could replace her with an easy-money stooge. He has tried to rationalize her termination on grounds of unproven "mortgage fraud," which, of course, has nothing to do with her job performance as Fed governor; the only legitimate ground for for cause termination.
I have my own issues with the Fed, but giving the economically illiterate Trump a weapon to corrupt monetary policy for his own political self-interest and the detriment of the economy is unacceptable.
