Tag: birthright citizenshiip

Oral Arguments and Severed Horse Heads: The Supreme Court and Birthright Citizenship

Yesterday the Supreme Court heard arguments in Trump v. Barbara whether Trump’s Executive Order stripping birthright citizenship from children of non-citizens was constitutional.  Every lower court hearing cases regarding the Order ruled that it was unquestionably unconstitutional. The arguments before the justices of our country’s highest court should have taken on the patina of well worn rituals and procedures. However, it was far from normal.

Last year, at an initial hearing before the Court, a majority of justices kept an injunction on the order in place, staying the implementation of Trump’s Order indefinitely.  The vote was 6-3.  Not shocking, given a radical core of conservative justices seem hell bent on overturning everything that smacks of small “l” liberal governance.  The Court could have left the appeals court in ruling in place, basically saying that the lower court’s ruling was sound.  They did not.  Instead, a least four justices voted to hear the case.

Yesterday, in an unprecedented move, Trump attended the oral arguments. His attendance, for all intents and purposes, was a direct attack on the separation of powers enshrined in our Constitution.   Trump did not stay for all of the arguments, leaving after the first hour.  His message sent, I think.  

Most of the justices, it seemed, were skeptical of the government’s argument that birthright citizenship should be limited.  The government’s argument hinged on the words “subject to the jurisdiction thereof” and the word “domicile” in the seminal 1898 Supreme Court ruling United States v. Wong Kim Ark.  Their arguments rehashes of earlier losing arguments.  This should be a slam dunk case, but it isn’t.

In a previous post, I predicted with despair that Trump and the government would prevail.  I thought perhaps I was wrong, and was heartened when the justices in a 6-3 vote kept the injunction in place.  That signaled the government would most likely not prevail in court.  Yet, I worried that at least four justices wanted to hear the case.  

This case should not be a nail biter.  It has been settled law for 128 years.  But with today’s Court consisting of a super majority of conservatives with a hard-core troika of ultra radical conservative justices, anything is possible.  

Enter Trump.  No sitting president has ever attended oral arguments at the Supreme Court. It is unseemly, and I think, an assault on the doctrine of the separation of powers.  His presence was like a dog pissing on a tree, marking its territory.  Trump was marking his Order and signaling to everyone, ‘do not rule against me and my Order.’ It was designed, I argue, to intimidate the justices that are on the fence, so to speak.  That is Barrett and Gorsuch.  Like the Godfather movie, Trump was the decapitated horse’s head laying at the foot of the bed.  A warning of bloody consequences. 

I would not be surprised that folks acting on Trump’s orders engage in a campaign of intimidation, influence, and ever terror against Barrett and Gorsuch in the coming weeks. He will use similar tactics that he has already used on his other perceived enemies.  His no holds barred attack on the Chair of the Federal Reserve is just one very recent example.  DOJ investigations, insinuations of wrongdoing, grand juries, threats of impeachment against other federal judges.  This will get nasty.

Even though many of the justices seemed skeptical in whole or in part of the government’s arguments; to include the Chief Justice Roberts, the majority opinion is far from settled.  The final vote is in doubt in my mind.  Congress abdicated to Trump.   Will the Supreme Court do so as well?   Surrendering the Judicial Branch to Trump, so that he can hang its stuffed head next to all the gold and gild bling in the Oval Office.   That is to be seen.

Birthright Citizenship:  Will the Supreme Court Overturn Wong Kim Ark after 127 years?

The Return of Wong Kim Ark

Wong Kim Ark was born in 1873 in the city of San Francisco to parents of Chinese descent. His parents could never achieve citizenship because of the Chinese Exclusion Act and America’s naturalization laws that privileged whiteness since 1790.  Forever migrants in the land of the free.  However, their son and daughters born in America were American, or so they believed. 

In August 1895 after visiting China, Wong Kim Ark sailed back to the United States eventually arriving at San Francisco Bay.  According to the Supreme Court opinion penned by Justice Horace Gary, Wong Kim Ark was denied entry on the “sole ground that he was not a citizen of the United States.”  That’s a polite way of saying he was denied entry because a capricious and racist customs collector, John Wise, decided he didn’t like the Chinese man standing before him. 

Can you imagine what went through Wong Kim Ark’s mind when Wise denied him entry to his homeland, ordering him detained on the ship that brought him home, the SS Coptic. The helplessness, legal purgatory, you aren’t a ‘real’ American.  We’ve all been vulnerable at some point in our lives to a capricious individual who couldn’t give a crap less whether your life collapsed into a heap of lost dreams, a life placed on hold. That kick in the gut that makes you want to puke. 

Between August 1895 and March 1898 Wong Kim Ark ceased to be a citizen of the United States in the eyes of many Americans, both in and out of the legal system..  Imagine being stateless for years in a country that treated you as an unwanted outsider, useful only for your labor. I can’t imagine the ordeal, living in fear of deportation to a land not native to you.  Ones fate in the hands of an American legal system that was designed to oppress people like you. Life held together by a legal thread tethered to the 14th Amendment.  

The Case 

The Chinese Consolidated Benevolent Association, born out of San Francisco’s Chinese immigrant community’s long experiences with systemic discrimination, filed a Writ of Habeas Corpus to free Wong Kim Ark from detention on the SS Coptic.   That filing began two journeys.  One for Wong Kim Ark to reclaim his citizenship and the other for America to establish the legal principle of birthright citizenship.

Justice Gray framed the argument in late 19th century legalese: “The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who at the time of his  birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are carrying on business, and not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution…”

Thirty-one pages later the Court answered that question:  Yes.  Justice Gray writing, “…The question must be answered in the affirmative.”  This opinion was issued March 28, 1898, and in a week’s time, give or take a day or two, will mark its 127th anniversary.  

The Executive Order

One of his first acts as President, Trump issued Executive Order 14160, “Protecting the Meaning and Value of American Citizenship.”  An Orwellian title meant to disguise racial hatred and the infliction of pain and suffering on vulnerable people.

The executive order set a two-pronged test for determining non-citizenship.  A negative test.  It reads uncomfortably like antebellum slavery statutes that based a child’s fate at birth as free or enslaved based on a parent’s status.  When birth should be a celebration of life this executive order turns into a nightmare, of families potentially destroyed, disassembled by a policy meant to be cruel, meant to dehumanize.

As for the executive order’s constitutionality, three federal district judges declared the executive order unconstitutional and placed pauses on its implementation.  Last week, however, the Supreme Court agreed to review whether the lower court orders should stand.  The Court gave the parties until early April to provide their arguments for keeping or overturning the lower courts opinions.  Why?  The Court did not have to hear the appeal since all three courts issued the same basic opinion.  There were no conflicting opinions to resolve. That is a worrying sign.  The Court should have said, ‘no.’  But they didn’t. 

An Uncertain future?

Will the Court eventually overturn Wong Kim Ark?  Yes, I do.  I suspect that at least four of the Justices would overturn the opinion today if they could.  I am unsure of Roberts and Barrett.  If the Justices later agree to hear oral argument regarding birthright citizenship, I believe they will overturn Wong Kim Ark by a 5-4 vote. Basically, ripping the soul out of this country.  Frankly, I don’t think Trump would have issued the executive order without some prior thumbs up by several Supreme Court justices.

Can you imagine the bureaucratic labyrinth of proof and denial awaiting millions of families should the court overturn 127 years of jurisprudence because a bigoted President doesn’t like black and brown migrants, the denizens of  “shit hole countries;” Trump standing in for the bigoted customs collector before Wong Kim Ark.  Endless rounds of notarized forms, systemic accusations of fraud, denials, reprieves, forever court hearings, fear of separation, dreams of reunion.  A hellhole designed to shatter souls.

Millions of stateless babies, millions of moms and dads sickened from anxious nights and days, families split and devastated by a party that claims to protect and nurture families. The executive order is predicated on racial animus and is counter to America’s values; deliberate misreads the 14th Amendment; trumped-up fables about American jurisprudence.  It does nothing to “protect the meaning and value of American citizenship,” on the contrary it taints America’s soul, divides the country, and throws citizenship into a bureaucratic shithole.