Tag: birthright citisenship

A Letter to Justice Amy Coney Barrett

Dear Justice Barrett,

It seems that you all have a Trumpian wolf by the ears.  Can’t let go, can you?

A case in point is your recent majority opinion that lower-level federal courts do not have authority to issue universal injunctions, eviscerating 60 plus years of American common law. You based this opinion from your reading of the Federal Judiciary Act of 1789 and your deep historical analysis of Great Britain’s courts at the time of our country’s founding, concluding English courts did not have authority to issue universal injunctions, so we shouldn’t either.  Pray tell, in your exhaustive historical analysis did you happen by chance to read anything about presidents ruling solely by illegal decrees?

You also argued that ‘complete’ and ‘universal’ injunctions were not synonymous.  Your parsing of the meanings between complete and universal seemed to me like watching two drunk uncles argue the difference between jam and preserves at a family brunch. Amusing….. worthless and pointless.

You further pointed out that from about 1962 to the present, lower federal courts did issue universal injunctions. Rarely, but that recently they have become too common.  Why you dismissed almost 63 years of federal jurisprudence and common law, is beyond me. 

You sum up your thoughts with an aphorism: “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”  I think your dictum fails to see the forest from the trees.  You just gave the executive branch immense power to act extra constitutionally without fear of judicial restraint. Sort of like an open marriage, no?

What you don’t see, but what Hamilton and Madison did see, is that the Constitution is a parchment barrier to tyranny.  The Constitution requires virtuous presidents and virtuous legislators and virtuous judges to survive.  Trump is not virtuous by any stretch of the imagination, and you know that.  Congress has abdicated its’ powers.  Yet, you and Roberts act like Trump is virtuous and a ‘normal’ president.  

The Court had the opportunity during the Biden administration to make this ruling when multiple courts issued universal injunctions against his executive orders.  You refused White House demands for relief, particularly those dealing with student loan forgiveness. Your timing is suspect.  One can argue that you all just think conservative presidents can or should rule by decree, but not liberal ones.  Or, one can argue, you fear angering Trump, that you are pulling your judicial punches out of terror.  You nurtured and protected this wolf when it was young, now you have this wild, undomesticated snarling beast by the ears, bared teeth inches from your face.  And you caved.  I think the legal term is ‘Mingo ones Braccas’ or in English ‘pissed one’s pants.’

At its core, your ruling was fickle and weak, even naïve, and follows a pattern of avoiding Trump’s public rage.   In times like this boldness is required.   Hamilton warned of this in Federalist 78, of the judiciary’s weakness in comparison to the ‘sword’ of the executive branch and the ‘purse’ of the legislative branch.  Instead of being independent of the executive branch – what your boss liked to call balls and strikes — you all have a Stockholm syndrome like relationship with Trump, crowning him King last term, now giving him additional powers to wreck executive havoc without early and frequent checks by the judiciary.  Your rulings only embolden Trump and reduce avenues for timely non-violent redress of Trump’s executive branch power grabs.  Let me repeat the critical part, your ruling reduces avenues for timely non-violent redress to Trump’s illegal acts.

You opened an executive power pandora’s box.  You all on the Court are fond of hypotheticals.  Let’s do some to explore logical outcomes of your decision:

Hypothetical One: Trump issues an executive order invalidating the 13th Amendment, arguing it was ratified under duress.  Effective immediately slavery would no longer be illegal.  By your ruling, slavery would be legal throughout the land, unless paused locally, until the Supreme Court got around to declaring the executive order unconstitutional.  

Hypothetical Two:  Trump declares Brown v. Board of Education void and orders the segregation of federal government offices, schools, and facilities, permitting the designation of “whites only” spaces.  By your ruling, ‘separate but equal’ would be legal throughout the land, unless paused locally, until you all at the Supreme Court got around to declaring the executive order unconstitutional.  

While you may think that these hypothetical executive orders are outrageous, don’t you think the ban on birthright citizenship is just as wicked? While purporting to be race neutral, the ban is blatantly racist, targeting predominantly brown and black undocumented migrants and their unborn children, who make up the bulk of migrants to this country in this era.  If the bulk of undocumented migrants were from predominantly white countries, vice Mexico, Central or South America, or Africa, there would be no ban on birthright citizenship.  Yet you casually let the ban start in 30 days.  You could have made the same ruling but paused implementation for 90 days. One suspects that the Court will overturn birthright citizenship, in part, soon.

Furthermore, post-ruling remarks by you and Roberts are not helpful.  Chief Justice Roberts’ comment, “It would be good if people appreciated it’s not the judges’ fault that a correct interpretation of the law meant that, no, you don’t get to do this,…”  That’s funny because mostly you all rule that Trump gets to do just what he wants in most every shadow docket case that comes before you.  You know, from a philosophical and humanist perspective, a ‘correct’ interpretation is not always the ‘right’ ruling.  Things aren’t always black and white.  

Roberts’ comments show just how detached and callus your conservative majority have become.  You act as if your decisions are purely academic exercises, without any real-life consequences, such as being born stateless in America or being put to death.  You won’t be up to your assess in alligators but many literally will be.

If you wrestle with these paradoxes and nuances and life shattering decisions, it does not show in your antiseptic prose or victory laps.  Show some humanity, will you.  And as for your comments about Justice Jackson, I would rather have an imperial judiciary – since it doesn’t have the sword or the purse — than an unchecked imperial crazy-like-a-loon presidency, although I don’t wish to insult the Common Loon, which is a beautiful waterbird with a wonderful, haunting call.

Let me finish with a bit of history.  In 1933, because of parliamentary deadlock, political polarization, and a failed economy, German Conservative parties supported the appointment of a political novice to be head of government instead of forming a ruling coalition with the Left.  They preferred the fascists to the leftists.  The Conservatives thought they could control this political neophyte.  Sound familiar.  After assuming the Chancellorship, parliament passed a law giving the new Chancellor four years to rule by decree.  

That Chancellor was Adolph Hitler and it did not end well for the Germans. In a similar fashion, Congress is letting Trump rule by decree for the next four years, and you, the Supreme Court, are also permitting Trump to rule by decree.  I am not arguing that Trump and Hitler are moral equivalents, but Trump is the leader of an ultranationalist populist movement that is presently eroding the rule of law, like a melting ice sheet in Antarctica.  And, as the big, beautiful bill lays out in its 900 plus pages, he is not a true friend of the working classes.  Instead, transferring immense riches to the top 10 percent through regressive tax policies, building a police state, and further hollowing out the American dream for most working-class folks.   Do you think the $40 billion in new prisons will be just for migrants?

Sincerely,

A concerned citizen

Tom’s Report on the State of America’s Democratic Health

As of June 28, 2025

Benchmarks of Democratic Backsliding and Erosion

It was a bad week for Supremes. Both Iran and our Supreme Court capitulated in all but name to Trump.

With an absent Congress, a crippled civil and foreign service, an executive branch stuffed with Trump’s willing destroyers, and a military increasingly politicized, the last bastion of non-violent resistance to Trump’s autocratic dictates was crippled by the Supreme Court.   The Court ruled 6 to 3 that ‘universal injunctions’ were not permitted to be issued by lower federal courts any longer.  The one tool to stop Trump in his tracks, the lower courts, was crippled by the high court. This will make stopping Trump’s barrage of illegal and unconstitutional executive orders much more difficult, perhaps fatally so.

Justice Barrett argued in the Court’s opinion that the Federal Judicial Act of 1789 did not authorize such nationwide injunctions, that “complete relief’ is not synonymous with “universal relief.”  Hmmm, complete means ‘total’ and universal means ‘all.’  Pretty damn close to me, but I digress.  Nor did English Common law permit such injunctions in Great Britian in the late 18th century at the time of our founding, she pointed out.  Thank God we are using 18th century jurisprudence in a 21st century era of mass communication.  She acknowledged, however, that universal injunctions were first used in 1962. A 63 year old precedent that she then set aside with a swish of her judicial pen. She concluded her opinion, “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”  Naïve and judicially dangerous.  

The timing of this ruling is suspect.  After 63 years of ignoring or permitting universal injunctions, the Supreme decided now, with Trump as president, to slam shut that door.  One would think that after 63 years, lower court universal injections would become part of our common law heritage.  Why not do this when Biden was president and numerous universal injunctions were issued against executive orders for student loan relief? This ruling follows a broader pattern of the high court being, in my opinion, overly deferential to Trump and his notion of a powerful executive branch.  This ruling in conjunction with a previous Roberts’ ruling that Trump has immunity from criminal acts for official acts, basically makes Trump an autocrat in waiting.  And he won’t wait long.

Now what Amy?  What happens if Trump declares that Brown v. Board of Education was wrongly decided and issues an executive order segregating federal government offices and military academies (and those business or entities with federal contracts or funding by race)? Are we to wait six months to a year for the court cases to meander their way to the Supreme Court while government offices around the nation put up ‘white only’ signs?  When an executive order is so patently unconstitutional?  Legal brains but no common sense.

I can imagine the screams if a Democrat president through executive order immediately bans the manufacture, sale, and distribution of AR-15 type weapons, high-capacity magazines, ammunition, bump stocks, and other weapons deemed to be military grade.  No universal injunction, just a patch work of local injunctions.  The right would have a meltdown.  

This ban on universal injunctions invites the executive branch to rewrite the Constitution at will, overturn Supreme Court decisions at will, overwhelming and inundating the lower federal courts to the point they cease to function effectively.  It will become a shit show of unintended consequences, further fracturing and dividing this country.  The Supreme Court surrendered the judicial branch to the executive branch, or as Trump would say, “unconditional surrender.”

In total, his ruling will create a nation universally splintered by different rulings and thereby laws.  Uncertainty would reign supreme for nationwide businesses: can’t do that in California, but legal in Texas. As for the issue of birthright citizenship, after Barretts’ 30-day delay, some kids born in Texas won’t be US citizens, but if they were born in New York, would be.  Tens of thousands of stateless kids.  What a mess.

Tom’s Report on the State of America’s Democratic Health

As of May 16, 2025

Benchmarks of Democratic Backsliding and Erosion

The big issue this week was the arguments before the Supreme Court regarding the Trump’s executive order eliminating birthright citizenship.  The arguments were more about whether federal district judges can issue nationwide injunctions, or pauses, not so much the constitutionality of the executive order itself.  

The justices, from what I gathered, seemed conflicted about whether to limit federal judges ability to issue nationwide injunctions, especially if letting the law go into effect nationwide will cause great harm while the case winds its way through the courts.  I would think revoking birthright citizenship, or invoking the Alien Enemies Act, or suspending the Writ of Habeas Corpus would fall into that category of immense national harm should the executive order or law be permitted to go forth while it is being fought over in the courts. 

It the Supreme Court limits nationwide injunctions, it would have to devise a clear set of rules for when a judge may order a nationwide injunction or limit the injunction to their district.  I don’t see that happening, if they do, they are crazier than I thought.  Or worse yet, rule that federal district court rulings are limited to the district in which the court resides.  There are 94 federal court districts, chaos would ensue.  

If the Court eliminates nationwide injunctions outright while the constitutionality of the law is being challenged, that would trigger the very real possibility that half the country will have one set of constitutional rights while the other half would have a different set of constitutional rights. For example, if Trump suspends the Writ of Habeas Corpus, five or six district judges may impose an injunction in their districts, but a district in Texas where an immigrant detention facility is located, may not see the suspension of the Writ as unconstitutional.  That would then permit hundreds if not thousands of deportations without due process. The harm would be immense.

In another important ruling, the Supreme Court did extend a block on deporting migrants from Texas using the Alien Enemies Act today (May 16).  Sending the case back to a lower court for additional litigation.

Republicans should be wary of Trump getting his way on this issue of nationwide injunctions and executive orders.  The next Democratic president could declare that the second amendment does not protect the manufacture or possession of AR-15 or similar type weapons.  The president could use an executive order to prohibit the possession, manufacture, sale, and transportation of these items across state lines.  

Republicans are painting themselves into a very small separation of powers corner.  Mitch McConnel basically shanked the Senate years ago.  Mike Johnson turned the House of Representatives into a spittoon full of, you know spit.  Chief Justice John Roberts, just can’t get his head out of his butt, all but declaring Trump King last term. Although, I must say, after creating this Frankenstein presidency, he is doing his best to cage the beast.

Republicans act as if the Democrats will be forever in the wilderness, a token political party for show during elections, but powerless.  If that was their goal, we shall see how they react to losing in the mid-terms and in 2028  Will they accept the outcome(s)?  And once the Democrats return to power, how can they ever, ever, claim overreach?

Amazingly, because of court action and popular backlash to the excesses of the Trump White House by DOGE — and don’t forget the tariff mess — the guard rails are bending, but still in place in some places.  Where the guardrails are missing is Congress.  They are not checking the accumulation of congressionally enumerated powers into the executive branch and seem not to have any interest in checking his power, mostly out of fear I suspect. Then again, some just that holy grail, $5 trillion in tax cuts. most of which will go to the top 1 percent (that is them and their millionaire class)

Some examples of Congressional nonfeasance revolve around Trump’s personal corruption and  profiteering from office .  For instance his ongoing attempt to accept a $400 million 747 from the Emir of Qatar for use as Air Force 1, and it being ‘decommissioned’ and transferred to his presidential library foundation following his presidency; his sale contest of  $Trump (a crypto currency) for White House tour (access?); pocketing tens of millions of dollars in crypto fees through the Trump family’s World Liberty Financial, are all examples of Republicans in Congress looking the other way while Trump engages in what appears to be unconstitutional and corrupt practices.

While there have been some tactical and strategic setbacks for Trump, as the initial 100 days passes into the next 60 days, we are not out of harms way. He will become more dangerous. And, like a trapped and cornered animal, will attack, hard and fierce.  Hang on, it will be like holding on to the ears of an angry wolf.

For a cumulative list of backsliding and erosion of our democracy, please click ‘benchmarks’ or menu above. Updates are in bold.

The Rule of Law:   Are Trump’s Executive Orders the New Bills of Attainder?

You may have noticed the term ‘Bill of Attainder’ recently in newspaper articles or streaming news services.  

A federal district Judge this week imposed a temporary restraining order on Trump’s Executive Order punishing a law firm that represents Democratic Party clients in general, and former special counsel Jack Smith in particular.  The Executive Order barred the firm, Perkins Cole, from federal contracts, stripped security clearances, and prohibited federal employees from retaining the firm for legal services.  The judge compared the Executive Order to a Bill of Attainder, writing that the Order ‘sent chills down her spine.’  Two things.  First, thank God someone has a spine in Washington DC, and two, it should send chills down everyone’s spines.

So, what is a Bill of Attainder?  Like many things in American Constitutional law, it has its roots in England.  William Blackstone’s mid-18th century “Commentaries on the Laws of England” provides the go to legal description of a Bill of Attainder.  Basically, Parliament could sentence a person to death, without a trial, through legislative fiat. Normally, for treasonous acts.  Execution for treason was a ritual in England and other monarchies.  After burning at the stake was banned in late 18th century, hanging, disembowelment while still alive, beheading  and quartering, became standard in England. Parliament could also seize property or banish a person from England simply through legislative acts, sometimes called Bills of Pain or Penalties.  America’s founders thought this a bad idea.  

The Constitution specifically prohibits Bills of Attainder.  At the Constitutional Convention, on Aug 22, delegates Elbridge Gerry of Massachusetts and James McHenry or Maryland introduced the clause “The Legislature shall pass no Bill of Attainder nor any ex post facto law.”  There was practically no debate, with most of the discussion on whether the latter part of the clause was necessary.  Which suggests they thought it not controversial to ban Bills of Attainder.  Nonetheless, coming very late in the convention, and before air conditioning, I imagine the urge to debate was wanning.  That said, many of the delegates were very familiar with Blackstone’s commentaries and some even had a copy in their personal library and thought the ban necessary.

In Article 1, which enumerates the powers of Congress, section 9, the Constitution states, “No Bill of Attainder or ex post facto Law shall be passed.  In section 10, States were prohibited from enacting Bills of Attainder as well. While the proscriptions apply to Congress and State legislative bodies, it seems that the intent of the ban – and the spirit of the law — would also apply to Executive Orders.  An Executive Order, according the Chief Information Officers Council ( CIO.gov),  has, and I quote, “the force of law.”

I am not a lawyer or Constitutional scholar, but it seems to me that President Trump has weaponized Executive Orders to punish and impose pain on his political and culture war enemies.  Trump’s Bills of Pain and Punishment.

For instance, the creation of DOGE, an extra-legal government agency, to target and eliminate congressionally mandated and funded government programs.  Basically, hanging, gutting, and quartering the career civil service along with executive department and independent agencies without meaningful congressional oversight, public comment, or legal restraint. 

Another example, is the order to ban birthright citizenship through executive order: “Protecting the Meaning and Value of American Citizenship.”  An Order that blatantly lied about the Supreme Court’s century old interpretation of the 14th Amendment and birthright citizenship.  More on that in a forthcoming Blog on birthright citizenship. That order is motivated, it appears, by racial animus and is meant to punish the current wave of immigrants to America — which are overwhelmingly brown or black from, as Trump would say, “Shit Hole countries” — by making their children born in America stateless.

And finally, the Executive Order to “Protect the US from Foreign Terrorist and Other National Security or Public Safety Threats,” was used recently as a pre textual basis to detain a permanent legal resident and Palestinian activist and Columbia graduate Mahmoud Khalil as a national security risk. After his arrest he was sent to an immigration detention facility hundreds of miles away in Louisiana, even barring him from access to lawyers.  A judge stayed his deportation temporarily. That should scare the crap out of everyone.

Thankfully the courts have countered some of these executive orders, but will the Supreme Court sustain these lower court rulings.  That remains uncertain, even birthright citizenship is in jeopardy, I believe, given the present makeup of the Supreme Court.  If the Supreme Court decides to take up the Birthright case, and not let lower court rulings stand, that should send shivers of fear down every American’s spine.