Tag: trump

A New “Remedy:” America’s Social Contract Under Siege

America floundered after the Revolution ended.  A confederation of sovereign states jealously guarding their individual prerogatives, bickering constantly, the central government virtually powerless.  The Articles of Confederation was a disaster.  

In 1786 commissioners from five states met in Annapolis, ostensibly to discuss trade between the states and international trade relationships.  Among the 12 in attendance were James Madison and Alexander Hamilton.  They apparently did not accomplish much, but they did agree to meet the following year in Philadelphia, this time inviting commissioners from all the states.  The stated purpose of the convention was not to develop a new form of government, however, that was precisely what James Madison, among several others, intended.  The convention was to create a new social contract between the people and the states and save the union.

The Philadelphia Convention gathered on May 14, 1787. After waiting for more delegates to arrive they got down to business, debating and agreeing on the rules of Convention.  On May 29th Edmund Randolph of Virginia “opened the main business” of the Convention.  Speaking to the “crisis,” that is the failure of the Articles of Confederation, and “prophecies of the American downfall,” he proposed four objectives “to revise the federal system.  We ought to “inquire 1. into the properties, which such a government ought to possess.  2. The defects of the confederation. 3. the danger of our situation& 4. The remedy.”

That ‘remedy’ has withstood the test of change since the Constitution was adopted by the States in 1789. Two hundred and thirty-six years.  The Constitution was and is not perfect, in fact it was not designed to be infallible, like a religious text proclaiming the word of God.  It was made by humans for humans, and they had the wisdom to recognize that things, well, change.   A Bill of Rights was added early, critical amendments were enacted over the decades.  Slavery was finally abolished (although after 96 years of relentless brutality), African Americans and women won the right to vote, birthright citizenship.   It is the social contract that endures and keeps us bound to one another. It’s what makes us American.

That remedy, that social contract, our Constitution is at risk.  Day after day the current administration attacks America’s social contract.  Executive orders rain down like hail stones, crushing the tender plants in our garden of democracy. If anything, they are messages to his base, a veneer of action, but they are also projecting the America he wants and the social contract he envisions. It isn’t a pretty one.

What happens when his attempts at changing the Constitution through fiat fails.  The Supreme Court says, “no.”  What then?  I doubt he will retreat; he will fight.  One way to fight is to organize a new constitutional convention, a new remedy, a new social contract. Can you imagine Georgia’s delegate being Marjorie Taylor Greene? 

Will our most cherished rights disappear into the ether?  Replaced by an authoritarian social contract?  Emojis of flags and flames and fists. If the convention meets and writes a new constitution, I suspect It will fundamentally alter our relationship to the government, and not in a good way.   

If Trump’s executive orders are a guide, a new social contract will eschew separation of powers, in its place a powerful executive, with unlimited terms.  King like.  Gone will be an independent judiciary, replaced by a Supreme Court appointed by the President, serving at his will. Gone will be the House of Representatives and a Senate, replaced by a unicameral body elected by state representatives, a rubber stamp affair.  A state religion declared.  A Christian religious test to hold office.  Separate but equal codified.

Don’t forget about The Bill of Rights and all amendments that will be nullified. Do you see them offering robust press freedoms?  Protecting you from unreasonable searches and seizures.? What about jury trial, or right to counsel.  Do you see that being in the new social contract?  I see the curtailment of rights, women’s right in particular.   Same sex marriage banned, access to contraception gone (Recall Justice Thomas’ call for cases), homosexuality criminalized.  The list of rights rescinded would go on and on.  It wouldn’t be a positivist social contact it would be negativist one, restricting rights not establishing rights.  It won’t be a mixed government of the one, the few, the many.  It will be the one. Is that an America you can live in?

That’s the social contract I see down the road if people stay at home, keep their heads down, and give in to Trumpian chaos and mayhem. Yes, reform is needed to get money out of the campaigns, stopping politicians from enriching themselves, keep the oligarchs from buying elections like Musk is now trying to buy the Wisconsin Supreme Court race, but a new federal system that gives up on democracy – the many — is not the ‘remedy.’  This new Trumpian social contract would be the opposite of reform, it would turn America not back to 1954 or 1859, or to 1789. It would transform America into an autocracy of one man rule..

This weekend, May 5th, there will be a rally at the Louisa Courthouse from noon to two.  Come have your voices heard.  Celebrate the 238th anniversary of the start of the Constitutional Convention in Philadelphia.

A dear John Letter: A Response to a Letter from Representative John McGuire

Below is a response to an email I received from Virginia’s 5th Congressional District Representative John McGuire. It was written in response to a letter or email I sent to him. I am appreciative and grateful for his response. I expected it would be one of those form letters, pandering and short on substance.

To my delight it was long, specific, and expressed his world view and take on recent controversial actions by the Trump administration, in particular the alleged unlawful deportation of hundreds of alleged Venezuelan gang members to El Salvador’s maximum security prison. To my dismay, it demonstrates a fundamental break in who is and who is not entitled to basic constitutional rights.

The letter below is my response. I will mail him a hard copy.

Dear Mr. McGuire:

Thank you for your email dated March 28, regarding the recent deportation of hundreds of Venezuelans alleged to belong to a criminal gang to an El Salvadoran maximum security prison. I appreciate your candor and directly addressing my concerns. However, I would like you to consider some of my observations regarding your response. They are based on my 29 years of federal law enforcement experiences.

In your letter you stated that “Law enforcement spent weeks drafting the list of deportees to make sure all were connected to the violent Venezuelan Tren de Aragua gang.”  Adding, that if some were mistakenly identified as a gang member, it really didn’t matter because they were in the country illegally: “I am aware there has been some discourse surrounding whether all those deported were connected to Tren de Aragua. I have full faith in our law enforcement, but on the rare chance that some of those who were deported happen to not be gang members they were still here illegally and therefore have committed a crime.”   

I would rather have 150 guilty men go free than imprison 50 innocent men.  It is cruel to send someone who would maybe get six months in a U.S. minimum security prison, than an indefinite stay at a high risk maximum security prison in El Salvador. Cruel and unusual punishment don’t you think?

What you didn’t mention is that despite a Federal District judges order to stop the deportations and return the flights pending hearings for the deportees, the government deported them anyway.  Claiming they were over ‘international waters.’  How could this be if they were over the Gulf of America?  

I believe your claim that you venerate our Constitution, but you seem unaware that our great Constitution has a Habeas Corpus clause.  That is the government must produce “the body” in a court so that the defendant has a right to challenge the charges and their detention.  Basically, that their arrest and confinement were legal.  This fundamental legal concept goes all the way back to the Magna Carta.  That is an 850-year-old tradition bequeathed to us by the British.  And Trump throws it out like yesterday’s trash.  The Judge’s order to stop the deportation was basically a Writ of Habeas Corpus in name and spirit.

I think we can both agree with the proposition that all inhabitants of the United States, regardless of citizenship or immigrant status have the following basic, fundamental human rights we cherish as a nation:

  • The presumption of innocence
  • To be secure from unreasonable searches and seizures (an arrest is a seizure)
  • The right to counsel
  • Right to a speedy and public trial
  • Not to be deprived of life, liberty, property, without due process of law
  • Not subjected to cruel and unusual punishment

The Venezuelans, it appears, were denied every one of these rights enumerated above. I am curious then, why you think these rights do not apply to them?

The arrests and deportations of these Venezuelans is the exact opposite of how our judicial system is supposed to work. The law enforcement agency making the arrests – the ones you have ‘full faith in’ – are not the prosecutor or the judge or the jury.  Our system is designed to be adversarial, where the government must present evidence, to either a grand jury or magistrate before an arrest is made; or, after a warrantless arrest brought before a judge, and in the end convince a jury.

Even the basic right to challenge the government’s assertions of either criminality or being in the country illegally, was denied the Venezuelans, it appears.  From what I can gather, the government presented no evidence.  The court decides whether their detention is legal not ICE or you or Trump.  I can see the discussion now:  Judge, “What proof do you have that the defendant is a gang member?” Agent: “He has gang tattoos.”  Judge: “WTF! Get out of my Court.”  And it goes downhill from there.  

Tattoos? That would be like rounding up everyone who was near Capitol Hill on January 6 wearing a red MAGA hat and deporting them to Guantanamo without due process.  Don’t you think?

Spuriously invoking and using the Alien Enemies Act of 1798, the government denied their rights, disappearing them:  No due process, no right to counsel, no hearing before a judge, sent to prison in El Salvador without trial for indefinite detention.  That should scare the crap out of everyone.  Then, to top off this charade of justice, DHS Secretary Noem shows up in El Salvador for a photo opportunity.  Thank God there were not gravel pits nearby.

I know I can be pedantic about American history, but did you know that the Alien Enemies Act can only be invoked after a declaration of war?  I really, really, really, hope you are aware that only Congress has the constitutional and legal prerogative to declare war.  The President’s use of the Alien Enemies Act was therefore illegal, extra-Constitutional.

You and I both swore an oath to preserve and protect the Constitution. I did my best to uphold that oath and I expect you to faithfully execute that oath for the people of Virginia’s 5th Congressional District.  It’s your duty to challenge these trespasses and gross injustices by Trump, not excuse them.

Listen, I am not against deporting criminal aliens and believe in protecting our borders. One of the last cases I oversaw resulted in a child sex trafficker getting 25 years in federal prison. But let me ask you this, why protect our borders when a sitting president destroys the country from within by attacking the fundamental rights we agree are essential to this great country’s democracy? When police ‘gather lists’ at the direction of political leaders we are in dangerous territory. Whatever you think ails this country, strangling democracy to save it is not the right answer.

Thank you and I look forward to our continued dialog.

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

As of March 28, 2025

Weekly Summary of Key Benchmarks of Democratic Backsliding and Erosion

What a week. Trump continued his assault on the 6th Amendment, the right to counsel, and the 1st Amendment through executive action targeting law firms. It has become a pattern, no a policy, of this administration to threaten, extort, strong arm law firms it considers “vexatious” by executive order. A modern day version of Bills of Attainder.

According to NBC, Trump issued a new memorandum March 22 titled “Preventing the Abuses of the Legal System and the Federal Court.”  The memo gives AG Bondi the power to revoke security clearances of attorneys and terminate federal contracts of law firms if she deems their lawsuits against the administration are “unreasonable” or “vexatious.”

Also this week, Trump signed an executive order against the law firm Jenner and Block, a law firm with clients litigating Trump administration actions. The law firm also has some connection to Robert Muller.  

In a disappointing move, one targeted law firm capitulated to Trump.  The law firm Paul Weiss, Rifkind, Wharton & Garrison LLP bowed to Trump at a White House meeting following a Trump Executive Order targeting the law firm’s business.  They admitted wrongdoing of a former partner who left the law firm in 2021 to work the New York City’s District Attorney’s Office which prosecuted Trump’s Porn Star payoff case;  offered $40 million in free pro bono legal work supporting Trump administration initiatives; change their DEI hiring practices. Who would want to hire a law firm like that?  

Trump continued to use police powers to violate the 1st Amendment right to dissent and assembly, focusing on foreign nationals legally in the U.S. A Tufts University PhD candidate of Turkish origin was arrested by ICE in an undercover takedown usually reserved for drug dealers. A federal judge ordered that the detainee remain in Massachusetts pending court hearings. In a bold and illegal subversion of Habeas Corpus, ICE engaged in a game of find-and-seek and the detainee ended up in a detention facility in Louisiana. I can’t imagine the terror and fear this woman must feel at this nightmare unfolds. This flagrant attack on the judicial system is a pattern of this administration. The slow slide in to authoritarian rule is in full expression this week.

Secretary of State Marco Rubio, a second generation Cuban-American whose grandfather fled Fidel Castro’s regime, announced that over 300 student visas had been revoked for students engaging in political activism, who he labeled “lunatics.” How sad that it only took one generation to turn from asylum seeker to despot.

For a detailed cumulative list of benchmarks charting our country’s slide into despotism please click the ‘Benchmark’ link above.

Let me know how I am doing. Leave a like or a comment. Thanks.

Captain Ahab with Nukes: Let’s Chat.

By now most folks have heard of Signalgate, the scandal that involves Trump’s national security team using a commercial, unsecured app to engage in a group chat to discuss attacks on Houthis in Yemen.  The texts in addition to disclosing an imminent attack on Houthi targets also included internal White House policy debates, whether to postpone the attacks, and how to make “Europe” pay America for keeping shipping lanes open, and reflections on ‘deadbeat’ European. Later in the texts, the ‘order of battle’ for the attacks on Houthi targets and battle damage assessments was provided.  What has not been published is the name of an “active CIA intelligence officer” named by the CIA Director during the chat.

The White House claims the information discussed was unclassified.  The democrats roll their eyes and say it was classified. I don’t want to focus on the classified unclassified debate or the hypocrisy of the law and order rightwing.  To me the worst part of the group chat has nothing to do with the obvious classified nature of the information disclosed by the posse incompetente.  It’s what the texts reveal about Trump, our national security priorities, and his judgment in selecting his national security team.

First, the choice to use Signal was a conspicuous display of their sloppy amateurism. It explains why the Russians are running circles around Trump’s peace negotiating team.  Second, this motely group appears afraid to speak their minds to the boss.  That’s their core job, providing timely, frank, and honest advice.  It never ends well for Kings who have feckless and clueless advisors.  Third, it is clear our national security policy has nothing to do with America’s security but Trump’s personal vendettas, punishing those who trespassed against him.  Fourth, Trump is the personification of Captain Ahab but with nukes. Europe his white whale, the “Tariff” his whaling ship.

I was shocked at the sophomoric reactions to the serious life and death ramifications of their actions.  Instead of somber reflection that innocents died in that collapsed building – along with a bad guy – they send childish celebratory emojis texts.  When someone’ killed I always think, “what a better time than now to send a string of jingoistic emojis.”   They have the emotional intelligence of rocks.  

Damning as well, is that hours before our men and women flew into harm’s way, they recklessly telegraphed the attack to our adversaries, who, most likely have compromised Signal.  Did they not think to protect our men and women?  Their gross dereliction of duty betrayed the life and safety or these men and women.  A dishonorable sin in my eyes. They must resign.

The Department of Justice must open a preliminary inquiry whether any laws were broken by members of Trump’s national security team.  Mike Walz and Pete Hegseth must resign.  Sadly, my prediction is that Trump will use this incident to further his relentless attacks on a free press.  Trump will counterpunch with ordering Justice to open an investigation, but the target will be “The Atlantic” and the journalist who was the “accidental” invitee, a guest of Mr. Walz.

Lost and Found: Where in the World is John McGuire

Yesterday, the House of Representative’s DOGE Subcommittee, chaired by Marjorie Taylor Greene, provided a WWE style smackdown of senior executives from National Public Radio and Public Broadcasting Service.  The usual theater, chair shots, kissing up to Fox News, bullying, the outcome preordained. 

John McGuire, Virginia’s 5th Congressional District Representative, and a member of the DOGE Subcommittee was nowhere in sight.  Maybe he was teleworking?  He did not make an appearance (from what I can tell) much less ask any questions.  In an almost 3-hour hearing you would expect him to show up and ask a question or two.  He didn’t.  Was he getting his nails done?  Maybe he was on some Signal group chat. The dais where the representatives lord over the witnesses was mostly empty throughout the hearing, although I must admit, that there were more chairs than members on the Subcommittee.

It was an important hearing.  It was federal funding life or death for NPR and PBS.  Looks like death.  If the Subcommittee had its way, according to Greene, they would never get another penny of taxpayers’ money.  McGuire, I suspect would agree with the Subcommittee’s sentiments.

What galls me is that federal workers have been excoriated for allegedly not showing up for work or being lazy or wasteful, by folks like McGuire.  Justification for purging tens of thousands from federal government payrolls. The usual claptrap.  So, where was he on Wednesday?  My tax dollars, and your tax dollars, pay his salary, and I expect and demand him to put in the time and show up for committee hearings, ask questions when important issues are being discussed.

Please call or write Mr. McGuire and ask where the hell he was yesterday and why wasn’t he at the hearing to ask questions.  Finally, tell him to support NPR and PBS if you are so inclined.

DOGE gets to Audit State Voter Rolls in New Executive Order:  Right to Vote in Mid-Terms Threatened?

Yesterday Trump signed an executive order permitting the federal government to regulate federal elections at the state level.  The order, entitled “Preserving and Protecting the Integrity of Elections” not only violates the constitutional prerogatives of Congress and the States to regulate and run elections respectively, but repeats timeworn jeremiads of Trump’s favorite election fraud conspiracies.  

The courts should and will issue a pause or injunction because of its blatant unconstitutionality. Bizarrely, it permits DOGE to access state voter rolls to conduct audits.  Yes, DOGE, that extralegal secretive government organization run by an unelected billionaire.  Will any notification of suspension of voting registration come with a Tesla flyer? If you don’t believe me here is the language in the order:

“the Department of Homeland Security, in coordination with the DOGE Administrator, shall review each State’s publicly available voter registration list and available records concerning voter list maintenance activities as required by 52 U.S.C. 20507, alongside Federal immigration databases and State records requested, including through subpoena where necessary and authorized by law, for consistency with Federal requirements.” 

Setting the constitutionality of the order aside, it underscores Trump’s disturbing mindset and the fantasy world his legal advisors live in.  Every day it’s like going down Alice in Wonderland’s rabbit hole into a fantastical White House of gibbering lunatic imbeciles.

This is one of the most undisguised attempts to purge millions of registered voters since the end of Reconstruction.  Sowing chaos into the mid-terms is its goal. If America’s past is precursor, DOGE’s audits no doubt will target primarily black and brown voting districts.  Regardless, if you are a registered voter fear losing the right to vote.

Today, please Send an email, write a letter, or call your representative to complain of this latest assault on our rights.

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

As of March 21, 2025

Benchmarks of Democratic Backsliding and Erosion

Leading the list of abuses this week was Trump’s unconstitutional declaration of war and invocation of the Aliens Enemies Act of 1798; timed to the mass deportation of 200 plus alleged Venezuelan gang members to El Salvador and indefinite imprisonment in a maximum security prison with a history of human rights abuses.

Compounding this mass injustice was Trump’s call to impeach the federal judge who ordered a stop to the illegal deportations, cancelation of flights, and return of flight already in the air. This judicial order — in reality invoking Habeas Corpus a legal right that goes back to the Magna Carta — was ignored. The government lawyers even had the audacity to claim that it was too late because flights were over international waters by the time the written order was received even though the judge had orally ordered the stop earlier in court to the lawyers. Ironically, the flights were over the Gulf of America. How symbolic of how low Trump has sunk.

Rep. Jim Jordan has already planned hearings regarding the judge’s legal rulings. Elon Musk made max donations to members of Congress friendly towards the idea of impeaching judges who rule against Trump.

This is what happens after years of right wing rhetoric turning migrants into criminals. We know nothing about these men because they were disappeared without due process, the right to counsel. They had become unworthy victims in the eyes of too many Americans. I get rights, you don’t. That is not how American works. I think someone famous once said, “You shall do no injustice in court. You shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor.”

Of course Trump’s speech to the assembled staff of the Department of Justice where he rallied against the illegal press is of note. This attack on the press and free speech by a sitting President at the Justice Department is unprecedented.

Of additional note, is that government lawyers have determined that the Aliens Enemies Act permits government agents to enter homes without warrants. I presume under some Frankenstein interpretation of the ‘hot pursuit doctrine’ permitted by the Supreme Court. This determination would be in conflict with the bill of rights 4th Amendments protections from government intrusions and seizures without warrants. It suggests a government inching closer to declaring martial law.

I added a Friday Follies of all the sycophantic legislative bills introduced to kiss Trump’s derrière by fawning state and federal lawmakers. Got to have some sense of humor in this time. New entries to the benchmarks cumulative list of trespasses are in bold

For the full report please go to the menu and select Benchmarks. Thanks.

Lead, Follow, or Get Out of the Way

This past Sunday Democrats held an innovative multi-county town hall meeting in Goochland County, Virginia.  The invited guest, Rep. John McGuire (R), who represents Virginia’s 5th congressional district, did not accept the offer to speak to his beloved constituents.  In his place stood a cardboard avatar of McGuire, sporting a long, long, long, red tie, cartoon speech balloons emanated from his head. It reminded me of 18th century satirical political cartoons by William Hogarth.  

It was standing room only, a spirited, eclectic gathering.  Most were women, a good number of veterans, and a few former Republicans sprinkled among us. A microcosm of rural America: farmers, veterans, small business owners, local government employees, a few ministers, a good show of teachers, retirees, and some young’uns.   Some were in their Sunday best, either coming from or going to Church.  

McGuire’s replacement avatar and speaker was a civil rights attorney from Albemarle County.  After introductions he took questions and offered observations about McGuire and directly addressed Chuck Schumer’s about face on the Continuing Resolution to fund the federal government.  I think his comments reflected the general mood of the crowd: anger and frustration at Schumer.

The overall tenor of the questions asked was one of concern, fury, and annoyance at Trump and Musk.   These concerns, anger, and frustration were not reserved only for Trump, but at national Democrat leadership in Congress as well:   Where is it?  What’s the opposition strategy?  If you did a word count of participants comments, I think “fight” would be at the top of the list.  The verb, not the noun.

My takeaways from the town hall are that folks are not only worried about Trump’s reckless assault on our Constitution but also troubled by the lack of a will to fight and take risks by national Democratic Party leadership.  Schumer’s about face and capitulation, being Exhibit A.   The lack of an articulated strategy to respond to the erosion of democracy being Exhibit B.  No mid-term election plan, Exhibit C. 

It seems folks feel rudderless in a tempest, watching the ship of state drift closer to the shoals, the captain nowhere to be found, lifeboats swept away.  I imagine leaders in local Democratic party organizations are themselves frustrated at the national leadership.  I see the fatigue in their eyes and hear it in their voices. They are leaning hard into the the headwinds trying to thwart our democracy. They deserve better from national leadership.

I get the sense that folks desperately want to participate in meaningful opposition but only have timeworn responses in their tool kit:  write letters; email or call your representatives; show up for town halls; boycott businesses that support Trump.  These measures seem futile, like using little adhesive band aids when one needs a trauma kit, a tourniquet to keep America’s democracy from bleeding out. 

When I found out a day or two after the town hall that Schumer cancelled his tour to hawk his new book because of security reasons, my first thought was, ‘book tour?” WTF? Really, Rome is burning, and he is going on a book tour.  What doesn’t he get?  It just highlights that the intellectual framework that guides his notion of being a Senator is dated, like orange shag carpets and lava lamps.  He clings to a nostalgic past to the detriment of our future. 

No need to hit the panic button, but time is not on our side, given Trump’ frantic pace to undo democracy. The mid-terms are too far off to make any real, immediate course corrections.  The national Democratic Party leadership needs to get off its’ ass.  Trust us.  We will do the right thing if given the chance, but it requires tough national leadership that is willing to take risks, carry the flag at the front.  At my infantry basic course our motto was:  “Lead, follow, or Get out of the Way.”  Mr. Schumer, get out of the way.     

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.