\u201cRe: birthright citizenship, Solicitor General John Sauer told Chief Justice John Roberts we\u2019re \u2018in a new world,\u2019 which sounds to me like he believes in the \u2018living Constitution\u2019 that led to decisions like Roe v. Wade. Or is this just another example of the hypocrisy of so-called conservatives who advance principles (like strict constructionism) whenever it\u2019s convenient, and quickly abandon them when it\u2019s not? It\u2019s amusing to see at least one Supreme Court justice refuse to play along.\u201d\u00a0\u2014 David<\/p>\n
Hi David,<\/p>\n
Yes, last week\u2019s\u00a0birthright citizenship<\/a>\u00a0hearing in Trump v. Barbara\u00a0had an upside-down quality to it.<\/p>\n In the part of\u00a0the hearing<\/a>\u00a0you refer to, Sauer argued that the modern practice of\u00a0\u201cbirth tourism\u201d<\/a> justifies Donald Trump\u2019s anti-birthright citizenship\u00a0executive order<\/a>. Roberts noted that the practice \u201ccertainly wasn\u2019t a problem in the 19th century,\u201d when birthright citizenship was cemented in the Constitution\u2019s\u00a014th Amendment<\/a>. Sauer conceded the historical point but said that\u00a0\u201cwe\u2019re in a new world \u2026 where 8 billion people are one plane ride away from having a child who\u2019s a U.S. citizen.\u201d That prompted the chief justice\u2019s\u00a0instantly famous response<\/a>: \u201cWell, it\u2019s a new world. It\u2019s the same Constitution.\u201d<\/p>\n Sauer\u2019s appeal to modernity reflected a simple reality of the case that\u2019s been clear from the moment that Trump issued his order, which was quickly rejected in the lower courts as\u00a0\u201cblatantly unconstitutional\u201d<\/a>: If the high court straightforwardly applies the\u00a0originalist and textualist<\/a>\u00a0framework that the conservative legal movement has\u00a0successfully\u00a0fought<\/a>\u00a0to establish as mainstream, then it\u2019s an easy case against the administration. Through his order, issued on his first day back in office, Trump is effectively trying to single-handedly overturn the Constitution, federal law and more than 100 years of high court precedent that have stood for a basic premise of American life: If you\u2019re born here, you\u2019re a citizen.<\/p>\n On the other hand, if the court deems it appropriate to take\u00a0policy concerns<\/a>\u00a0into account, then all bets are off. For what it\u2019s worth, the justices\u2019 questions and comments at the hearing suggested that Trump will lose this case, though we won\u2019t know for sure until we have the decision later in the spring or early summer.<\/p>\n And it wasn\u2019t only the chief justice who\u00a0called out<\/a>\u00a0the administration\u2019s policy gambit at the hearing.<\/p>\n Another example came in an exchange between Sauer and Justice\u00a0Brett Kavanaugh<\/a>. The Trump-appointed justice noted that the government lawyer had mentioned the citizenship practices of other countries \u201cseveral times,\u201d which led Kavanaugh to remind him that\u00a0\u201cwe try to interpret American law with American precedent based on American history.\u201d The justice wondered, then, why it matters how European countries go about granting citizenship. \u201cI guess I\u2019m not seeing the relevance as a legal constitutional interpretive matter necessarily, although I understand it\u2019s a very good point as a policy matter,\u201d Kavanaugh said.<\/p>\n Sauer admitted that he \u201clargely agree[d]\u201d with Kavanaugh. But the lawyer went on to say that \u201call European countries have a different rule, and the world hasn\u2019t ended there.\u201d<\/p>\n In other words, the\u00a0\u201cAmerica First\u201d<\/a>\u00a0administration wants the court to look to Europe, to bolster a legally irrelevant argument for how the U.S. Supreme Court should interpret the meaning of American citizenship.<\/p>\n To your point about hypocrisy and living constitutionalism<\/a>, I was reminded of past conservative critiques of looking abroad, such as in the death penalty context. For example, in a\u00a02005 case<\/a>\u00a0that barred the execution of people who were under 18 when they committed their crimes, conservative icon\u00a0Antonin Scalia<\/a>, for whom Sauer clerked,\u00a0lamented in dissent that \u201cthe views of other countries and the so-called international community take center stage\u201d in the ruling. He wrote that \u201cthe basic premise of the Court\u2019s argument \u2014 that American law should conform to the laws of the rest of the world \u2014 ought to be rejected out of hand.\u201d<\/p>\n As it happens, the policy claims Sauer pressed at the citizenship hearing have dominated\u00a0the president\u2019s complaints<\/a>. After the hearing, which Trump attended himself in an apparent first for a sitting president, he\u00a0wrote untruthfully<\/a>\u00a0on his Truth Social account that we\u2019re \u201cthe only Country in the World STUPID enough to allow \u2018Birthright\u2019 Citizenship!\u201d<\/p>\n To the extent that Sauer acted as an avatar for Trump\u2019s personal preferences, it diminished, or at least didn\u2019t help, his legal argument. But that could also be a function of the reality that he knows he has\u00a0a weak one<\/a>.<\/p>\n Please submit \u201cAsk Jordan\u201d questions\u00a0through this form<\/a>\u00a0for a chance to have your question featured in a future edition of the\u00a0Deadline: Legal Newsletter<\/a>.<\/p>\n The post Ask Jordan: Is Sauer\u2019s \u2018new world\u2019 claim against birthright citizenship hypocritical?<\/a> appeared first on MS NOW<\/a>.<\/p>\n