This is just smart lawyering.
The post The ACLU’s Strategic Play In The Birthright Citizenship Case appeared first on Above the Law.
(Photo by Jabin Botsford /The Washington Post via Getty Images)
Yesterday, in his first day back in office, Donald Trump made a pass at rewriting the Constitution via executive order. Of course, that’s not how any of this works, and the American Civil Liberties Union has already filed litigation challenging the EO claiming to end birthright citizenship as guaranteed by the 14th Amendment. As the Brennan Center’s Thomas Wolf makes clear, “Trump’s executive order is unconstitutional, in direct conflict with the plain language of the 14th Amendment and over a century’s worth of Supreme Court case law.”
It’s also, you know, an attempt at legal sleight of hand to make the racism more palatable.
Wolf is optimistic about the integrity of the 14th Amendment, saying Trump’s EO “will be litigated immediately and its prospects of surviving those court fights are slim, even before a Supreme Court stacked with conservative justices and Trump appointees.” He points to the 130-year-old precedent of United States v. Wong Kim Ark, and thinks that even the conservative dominated Supreme Court will err on the side of birthright citizenship.
It’s reasonable to wonder whether the current Supreme Court will defy Trump on an issue about which he has campaigned so aggressively. It’s undoubtedly true that the justices have bent American jurisprudence into novel shapes to avoid direct conflict with Trump. But backing birthright citizenship doesn’t require some unprecedented feat of progressive jurisprudence. Just look at the Fuller Court, which decided Wong Kim Ark. Two years earlier, it issued Plessy v. Ferguson, one of the most notoriously racist rulings in U.S. history. Even those justices — who embraced the two-tiered “separate but equal” regime of race relations that ruled the United States for generations — couldn’t find an honest way around the 14th Amendment’s plain language. This precedent will loom — rightly and heavily — over any move the Court makes.
But before SCOTUS takes up the case, the ACLU is doing everything it can to ensure success. Because, though the rock solid legal foundation of birthright citizenship *should* be enough to end the inquiry we’ve seen some shockingly obsequious behavior in the age of Trump. Like, I dunno, when the Fifth Circuit’s James Ho — despite previously writing that it would take a constitutional amendment to overturn birthright citizenship — let Trump and the rest of the world know he was totally cool with the retrograde position of birthright citizenship that the 47th president is staking out.
What better way to avoid ambitious appellate court judges auditioning for a potential Trump nomination to the Supreme Court than to take your case to a circuit — the only one in the nation — with no active judges appointed by Republicans? That’s what the ACLU did (along with a coalition of state Attorneys General in a subsequently filed lawsuit). (Both complaints are available below.)
Now, putting your lawsuit in the First Circuit, even without any active duty Republicans, is far from the most problematic form of judge shopping that plagues our judiciary. If the GOP is particularly infuriated by the tactic, perhaps they’ll reconsider their stance on the Judicial Conference’s proposal on how cases implicating a nationwide injunction are assigned. Indeed, if this question makes it to the appellate level there’s even a chance they’ll pull a panel with one or more of the senior status judges appointed by Republicans in the circuit. But there won’t be any judges low-key interviewing for a promotion and that makes it a lot more likely the case is decided on constitutional, rather than political, grounds.
Then we’ll just have to cross our fingers when it makes it to the Supreme Court.
ACLY birthright lawsuit
State AGs
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].
