"An existential threat to the rule of law"

"With the stroke of a pen, the President has made a “solemn mockery” of our Constitution."

Supreme Court Justices Sotomayor and Jackson

The 14th Amendment’s guarantee of birthright citizenship is still the law…but maybe only for 30 days?

Today the Supreme Court, 6-3, punted on the constitutionality of Trump’s Executive Order cancelling the 14th Amendment, and sent the litigation back to the lower courts to hash out what procedures the plaintiffs may use to block Trump moving forward.

The ACLU posted this statement:

• “In a troubling but limited decision on President Trump’s birthright citizenship order, the U.S. Supreme Court today took a stand against “universal injunctions” and sent the temporary injunctions against the Trump order back for the lower courts to consider the scope of their orders. The ruling potentially opens the door for partial enforcement of President Trump’s executive order targeting birthright citizenship, putting thousands of U.S.-born children at risk of being denied their constitutional rights based on the citizenship status of their parents. However, the court stated that the executive order would not go into effect for at least 30 days, permitting time for lower courts to assess the appropriate scope of the injunctions going forward, and for advocates to seek additional protections for affected families. The court also did not foreclose all forms of nationwide relief. “The executive order is blatantly illegal and cruel. It should never be applied to anyone,” said Cody Wofsy, deputy director of the ACLU Immigrants’ Rights Project. “The court’s decision to potentially open the door to enforcement is disappointing, but we will do everything in our power to ensure no child is ever subjected to the executive order.” Trump’s executive order, issued on Jan. 20, 2025, attempts to strip citizenship from children born in the United States to people who are immigrants, a direct assault on the 14th Amendment’s guarantee of birthright citizenship. Lower courts quickly blocked the order and issued nationwide injunctions to prevent irreparable harm, citing its clear conflict with the 14th Amendment’s Citizenship Clause. Today’s Supreme Court ruling threatens to narrow the reach of those injunctions, potentially allowing enforcement, after 30 days, against those who are not plaintiffs in the existing suits (unless courts issue additional protection before then). The American Civil Liberties Union and its partners have a separate ongoing challenge to the Trump executive order and recently filed legal briefing in a federal court of appeals. Oral argument is scheduled for August 1 in that case. They will continue to fight the administration’s unconstitutional attack on birthright citizenship. “Today’s decision is deeply wrong because the states and other petitioners before the court have already proved the need for an order that would stop the nationwide harms of President Trump’s birthright citizenship order, but this fight is just beginning,” said Cecillia Wang, ACLU national legal director. “Twenty-two states and Americans around the country who are affected by the illegal executive order will continue their lawsuits. Ultimately, we will vindicate the 14th Amendment’s fundamental promise that ensures every child born on U.S. soil is recognized as a citizen of this country from the moment they are born, regardless of their race, parentage, or which state they live in.”

If that is too much to read, listen to this interview with Prof. Leah Litman: “Leah Litman, law professor and author of "Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes" joins Sam Stein to discuss the Supreme Court’s ruling limiting nationwide injunctions and its implications for Trump’s executive order targeting birthright citizenship. Also, the potential consequences for civil rights enforcement, and how this decision could reshape the balance of power between the courts and the executive branch.”

Here are some key highlights from the dissents by Justices Sotomayor (beginning on page 55) and Jackson (beginning on page 99). First, Justice Sotomayor:

• “[The Government] asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone. Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit. The gamesmanship in this request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along.”

• “No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from lawabiding citizens or prevent people of certain faiths from gathering to worship.”

• “It defies logic to say that maintaining a centuries-long status quo for a few months longer will irreparably injure the Government.”

• “By forging ahead and granting relief to the Government anyway, this Court endorses the radical proposition that the President is harmed, irreparably, whenever he cannot do something he wants to do, even if what he wants to do is break the law.”

• “[T]he Citizenship Order is patently unconstitutional. To allow the Government to enforce it against even one newborn child is an assault on our constitutional order and antithetical to equity and public interest.”

• “The Court’s decision is nothing less than an open invitation for the Government to bypass the Constitution. The Executive Branch can now enforce policies that flout settled law and violate countless individuals’ constitutional rights, and the federal courts will be hamstrung to stop its actions fully. Until the day that every affected person manages to become party to a lawsuit and secures for himself injunctive relief, the Government may act lawlessly indefinitely.”

• “[T]he parents of children covered by the Citizenship Order would be well advised to file promptly classaction suits and to request temporary injunctive relief for the putative class pending class certification. ... For suits challenging policies as blatantly unlawful and harmful as the Citizenship Order, moreover, lower courts would be wise to act swiftly on such requests for relief and to adjudicate the cases as quickly as they can so as to enable this Court’s prompt review.”

Now Justice Jackson:

• “The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.”

• “The majority now does what none of the lower courts that have considered Executive Order No. 14160 would do: It allows the Executive’s constitutionally dubious mandate to go into effect with respect to anyone who is not already a plaintiff in one of the existing legal actions.”

• “[O]ur rights-based legal system can only function properly if the Executive, and everyone else, is always bound by law. Today’s decision is a seismic shock to that foundational norm. Allowing the Executive to violate the law at its prerogative with respect to anyone who has not yet sued carves out a huge exception—a gash in the basic tenets of our founding charter that could turn out to be a mortal wound. What is more, to me, requiring courts themselves to provide the dagger (by giving their imprimatur to the Executive Branch’s intermittent lawlessness) makes a mockery of the Judiciary’s solemn duty to safeguard the rule of law.”

• “What the majority has done is allow the Executive to nullify the statutory and constitutional rights of the uncounseled, the underresourced, and the unwary, by prohibiting the lower courts from ordering the Executive to follow the law across the board. Moreover, officers who have sworn an oath to uphold the law are now required to allow the Executive to blatantly violate it. Federal judges pledge to support and defend the Constitution of the United States against all enemies, foreign or domestic. ... They do not agree to permit unconstitutional behavior by the Executive (or anyone else). But the majority forgets (or ignores) this duty, eagerly imposing a limit on the power of courts that, in essence, prevents judges from doing what their oaths require.”

• “It is the responsibility of each and every jurist to hold the line. But the Court now requires judges to look the other way after finding that the Executive is violating the law, shamefully permitting unlawful conduct to continue unabated. Today’s ruling thus surreptitiously stymies the Judiciary’s core duty to protect and defend constitutional rights. It does this indirectly, by preventing lower courts from telling the Executive that it has to stop engaging in conduct that violates the Constitution.”

• “Make no mistake: Today’s ruling allows the Executive to deny people rights that the Founders plainly wrote into our Constitution, so long as those individuals have not found a lawyer or asked a court in a particular manner to have their rights protected. This perverse burden shifting cannot coexist with the rule of law. In essence, the Court has now shoved lower court judges out of the way in cases where executive action is challenged, and has gifted the Executive with the prerogative of sometimes disregarding the law. As a result, the Judiciary—the one institution that is solely responsible for ensuring our Republic endures as a Nation of laws—has put both our legal system, and our system of government, in grave jeopardy.”

IN OTHER NEWS:

• “Secretary of Homeland Security Kristi Noem today announced the termination of Temporary Protected Status for Haiti. The TPS designation for the country expires on Aug. 3, 2025, and the termination will be effective on Tuesday, September 2, 2025.” - DHS, June 27, 2025.

• “Ten years ago, Jermaine Thomas was at the center of a case brought before the U.S. Supreme Court: Should a baby born to a U.S. citizen father deployed to a U.S. Army base in Germany have U.S. citizenship? Last week, Thomas was escorted onto a plane with his wrists and ankles shackled, he says. He arrived in Jamaica, a country he’d never been to, a stateless man. “I’m looking out the window on the plane,” Thomas told the Chronicle, “and I’m hoping the plane crashes and I die.”

  Thomas has no citizenship, according to court documents. He is not a citizen of Germany (where he was born in 1986) or of the United States (where his father served in the military for nearly two decades) or of his father’s birth country of Jamaica (a place he’d never been).” - Austin Chronicle, June 4, 2025.

That’s more than enough for today. Comments always welcome. THANK YOU! to all subscribers, free and paid.

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