When Trump first began issuing his blatantly unconstitutional Executive Orders, Women4Change Indiana–recognizing that simply labeling an Order unconstitutional lacked substance– asked me to draft “quick and dirty” explanations of why these Orders deserved that label. I agreed, and proceeded to offer brief explanations I titled “Your Constitutional Minute” which the organization posted to its website.
As we hurtle into even more uncharted waters–as we discover that our rogue Supreme Court is far less interested in protecting our constitutional liberties than either their predecessor or the lower courts–I thought it might be useful to share some of those posts, so that readers might draw their own conclusions about the increasingly dangerous legal territory we inhabit.
Let’s just look at the first of those “Constitutional Minutes.”
Section One of the 14th Amendment reads as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Donald Trump’s Executive Order, in pertinent part, reads:
It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
The Law:
A president cannot repeal part of the Constitution by executive order. Congress cannot repeal a Constitutional provision by passing a new law. Amending the Constitution requires a two-thirds vote in both the House and Senate, and subsequent ratification by three-quarters of the states.
Every statement in that brief explanation is accurate. Thus far, they all remain accurate. But the Supreme Court just undermined the application of the constitutional language–not by ruling that it doesn’t apply, but by issuing a ruling that will make it more difficult for people to claim its protection.
The Court did not rule on the merits of Trump’s effort to undermine the clear language of the 14th Amendment. Instead, the majority addressed a procedural question: whether lower federal courts have the authority under the Judiciary Act of 1789 to issue nationwide injunctions. Injunctions are judicial orders that block government actions, and nation-wide injunctions block such actions against everyone, not just the plaintiffs. In other words, if a court finds a government action to be unconstitutional, a national injunction prohibits the government from taking that action anywhere–not just in the state or circuit in which the case arose.
By a 6–3 vote, the Court—led by Justice Amy Coney Barrett—held that district courts generally lack the power to grant nationwide injunctions if that relief is broader than necessary to provide “complete relief” to the plaintiffs who brought the case. The Court granted the government’s request for a partial stay of the nationwide injunctions against Trump’s clearly improper birthright-citizenship Executive Order—although “only insofar as the injunctions exceeded the scope” needed to grant relief to the plaintiff in the lawsuit.
Confused? It was intentional.
Basically, the Court declined to agree that Trump could change the clear language of the 14th Amendment. That outcome was predictable, given the clear language of the Amendment and the history of its jurisprudence. So the radical members of the majority helped the autocrat in the White House by undermining the available remedy.
Justice Sonia Sotomayor called the decision out for what it was, in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson. Saying that “No right is safe in the new legal regime the Court creates,” Sotomayor wrote “Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law abiding citizens or prevent people of certain faiths from gathering to worship… That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.”
In law school, we learn that there is no right without a remedy.
Welcome to Trump’s America.
Too bad be don’t have a Department of Constitutional Enforcement (DOCE) to counteract South African immigrant Musk’s DOGE.
When Trump started taking over as de facto Chief Justice of the Supreme Court by appointing Fundamental Christians as Justices, I thought, How much can that matter? Of course, that was before the extent of the corruption there became apparent. Trump has an uncanny ability to identify corrupt individuals, while I have always sought the good in others.
My bad.
JoAnn. I think it’s called the Justice Department and it is now apparently controlled by Trump.
JoAnn – But we do. In theory anyway… it’s called the Supreme Court. :'(
The list of legal violations under Trump is exhaustive. I stopped counting the lawsuits and legal cases at 160, and that was well over a month ago. And once again, I point out, where is the Democratic Party?
Oh yes, the “oppositional party” is strategizing on their next move since they have to fight Trump and the rise of the populists within their party.
Trump flew out to Iowa on the 3rd to hold a rally where he resorted to red-baiting over the Democratic Party by calling them “communists.” Really? I can only imagine the crowd angrily clapping and chanting, “No Commies in New York!”
The DP’s lack of action during this Turd Bill says all we need to know about them. They are not a party of opposition. Once Musk announced his support for Trump, why didn’t Biden immediately autopen an EO to nationalize space exploration back at NASA? For God’s sake, why did we even privatize that obvious task of our federal government? Why are we paying Musk to launch satellites into space, including those used for military purposes?
American ignorance is not always a matter of simple ignorance when it comes to the two major political parties of the ruling class. All of Silicon Valley owes its founding to the federal government, specifically, the CIA and the Intelligence Apparatus.
My understanding is that the City of Philadelphia walked out on the 4th, causing the cancellation of their fireworks exhibition. Why didn’t the DP coordinate closures nationwide, utilizing their media contacts to disseminate the message? Talk about the perfect opportunity to bring the working class together to fight this legal and cruel dictatorship of Trump?
According to polls across the country, over 60% of Americans rejected the Turd Bill, and the DP was MIA instead of leading the majority of Americans in a national protest by shutting down the public and private sectors. Instead, we got nothing!
Hell, even Musk opposed it and immediately threatened to fund a new “American Party.” He better hurry before he loses all his wealth and is deported back to Canada or South Africa!!
Somehow it seems that the Constitution has become a rather vague document written by some old white guys back in the day. The SCOTUS majority have decided that they are much more qualified to judge what rights are inalienable than We, the People, the Congress or those charged by the oath they have taken to protect the inalienable rights delineated in that document. The teasing of language and what that language used to mean compared to what is understood today has become a game of gotcha or so it seems to me.
Until the flow of cheap labor provided by the influx of immigrants and the children they bore became a burden when the jobs were done or too hard for the dominant culture to do, it was not a problem. Then it was time to cherry pick the language to suit the wealthy and powerful who fear that the population was changing color, getting restive and unwilling to be pawns in the game.
It was as true when the document was up for ratification as it is now. White supremacy was and is the corrosive that eats away at the heart of the language. SCOTUS, in its current iteration, is pouring acid on the foundation until it is reformed to insure that color in power is always white.
The only positive thing about this whole monstrosity is that it can all be undone by the next President with a single stroke of a pen. These Executive Orders go well beyond any President’s power. The purpose of the EO is to allow the President to manage the Executive Branch of government and those who contract with the Executive Branch to provide services.
If the Article one folks are going to investigate Biden’s mental state, during his Presidency, they might want to take a peek at the current President’s mental fitness as well. It would be fun to watch them explain his responses to questions from the press.
You left out the best part:
“We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself,” wrote Barrett, the court’s second-newest justice, in a jaw-dropping rebuke of her colleague, the newest justice.
“We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”
As I recall, back when this President’s first administration, it was pointed out that the most important part of the government would be the supreme Court. Because then there would be some recourse against unlawfulness. Unfortunately, that was poo pooed. The much more flashy targets to complain about were the president and or Congress. But the supreme Court was the guardrail keeping everything on the roadway. When all the shenanigans were going on considering the supreme Court, there should have been some fight against what was going on. The illegality of not allowing a president to appoint justices was obvious but not deemed critical for some reason. And now, here you go!
And even after all of that it could have been remedied by the previous president declaring a clearing present danger or national emergency because of the shenanigans going on, and reconstituting the government with that authority. But that was deemed a bridge too far. The toolbox was left closed as the ship sank. So once again, here you go! When it’s time, it’s time!
Todd–I think we all are dismayed by the Democratic Party’s seeming inability to stop the Trump agenda, but please understand, we are in totally unprecedented times. Even Trump’s first term was not this bad, in large part because there were a few principled people in the administration and Congress to block his worst impulses. Now, there is not a single dissenting voice. We are not even a half year into his second terms. As far as I can tell, the Democrats did just about everything possible to stop the Big Billionaire Boondoggle. Since Trump’s inauguration, there have been thousands of huge protests, and more will come. We are inundating congressional phones with our objections. We support organizations that help Trump’s victims.
But we are up against a totally unified, stunningly cruel, and thoroughly corrupt administration, backed by supine congressional Republicans, an unprincipled Supreme Court majority, cowardly institutions that capitulate to Trump’s intimidation, and the 24/7 right wing lie machine, like FOX. Perhaps the Democrats could have done a few more things to stop the BBB, but it probably would have been like building a sand wall in front of a crashing tidal wave. We are in this for the long, long haul. Perhaps most importantly, we must work ceaselessly to ensure we can have free and fair elections in the future, particularly by fighting the intense voter suppression efforts that Republicans are counting on to avoid accountability.
As of right now I see no peace in America and no unification. We have become not a country of “great” but rather one of “hate” all being created as part of President Trump’s legacy.
Pete, I am sorry, but whenever “Fundamental” anythings get into positions of leverage, or power, the society within which that happens is in trouble. By definition, their allegiance is not to something akin to a constitution, but to their version of a god-thing.
Peggy, I wish you were right, but while the odious exec.orders can be reversed, reversing the damage that SCOTUS is doing is not at all that simple. We can all thank Mitch McConnell for that fix!! Now that he’s announced that he’s not running for office again, he found the cojones to admit, out loud, that Trump is “…not fit for office.” What a guy!!!!!!!!
MAGA is a hate group. I know of several folks in my own family who would disagree with me because they can’t see their own hatred boiling at the surface. I disagree with them but I don’t want to see them deported or imprisoned. I don’t want to see their family ripped apart. I don’t want someone to come along and take away their Healthcare or make their life more difficult.
I genuinely don’t understand how they can just make excuses to continue hating people. And hating people en masse that they really don’t even know.
Maniacs Are Gutting America
Great lesson on the constitution, Sheila, and explained so well. I wish MSNBC or CNN would hire you to do a weekly program on the Constitution. My guess is that most citizens understand even less about the Constitution than about civics generally. Sad.
M’endacious A’rrogant G’arish A’colythists.👺