This week, on Thursday, the Supreme Court hears oral argument in the birthright citizenship case. But not exactly, because the issue on the table isn’t whether Trump can undo the 14th Amendment’s guarantee of citizenship to anyone born in the United States; it’s about a technical issue, one we’ve encountered before. The issue is whether a district judge can issue an injunction that takes effect nationwide, or whether their decision is only applicable within their judicial district, or even limited just to the parties in front of them. The Court consolidated three cases from the lower courts and will hear them together:
“Years of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere,” then acting-Solicitor General Sarah Harris wrote in three nearly identical briefs used to ask the Supreme Court to intervene in the matters that stem from courts in Maryland, Washington, and Massachusetts. But if we’re being honest, that hasn’t always been the conservative view of the matter, like when it was Judge Matthew Kacsmaryk in Amarillo, Texas, who was repeatedly selected to hear anti-abortion cases because he sits in what is known as a one-judge division, and they were almost sure to get him if they filed there. And liberals have also forum shopped for districts where they believed they were more likely to get a friendly judge. The issue here is a legal one that should transcend politics, one that is about legal principles and drawing lines as opposed to a results-oriented ruling that says nationwide injunctions are okay so long as whoever is making the decisions is happy with the outcome. It’s far less likely we will get—or at least we shouldn’t—an all-or-nothing rule that says nationwide injunctions are always permitted or, conversely, never permitted. The difficult task in front of the Supreme Court is the line-drawing exercise. It’s one that has been brewing for some time, which makes it all the more interesting that the Court agreed to let it come to a head and hear the issue in the context of this case. That’s because this is one of the strongest contexts imaginable for arguing in favor of permitting nationwide injunctions. Otherwise, there would be a patchwork quilt of citizenship creation, depending on the state in which a person was born. Managing that situation would be, as we say in the south, a hot mess. Of course, with this Supreme Court, it’s never a good idea to read too much into which cases they take off of the shadow docket. But as lawyers like to say, bad facts make bad law, and the facts here demonstrate the problematic consequences if a federal judge can’t enter an injunction to freeze the status quo in place while litigation proceeds. I’ll be listening to Thursday’s argument with great interest. We get a sense of what Solicitor General John Sauer is arguing, as we often do, from the outline he provides us in his table of contents. It kicks back to the central theme of this administration, the accumulation of all power in the hands of the president. The brief itself is modest in length, just over 20 pages.
If you want to review Trump’s day one executive order that started all of this in advance of oral argument on Thursday, it’s this one: “Protecting the Meaning and Value of American Citizenship.” On Friday, there will be an important hearing in one of the deportation cases, VML v Harper, this one before Chief Judge Terry A. Doughty, a Trump appointee, in the Western District of Louisiana. Interestingly, as a state prosecutor, he litigated habeas cases, giving him some familiarity with the topic at issue here. VML is a two-year-old American citizen who was detained by ICE with her mother and sister during a routine check-in on April 22. ICE has claimed the mother agreed to take her with her when she was deported, but VML’s custodian has brought a habeas petition seeking to release her from unlawful detention. (Habeas corpus literally means “bring me the body” or “you should have the body,” and is a writ used to obtain release of a person who is unlawfully in custody.) Judge Doughty had this to say in his order setting the hearing in regards to the government’s claim about the mother’s wishes: “The Government contends that this is all okay because the mother wishes that the child be deported with her … But the Court doesn’t know that.” He set the hearing “In the interest of dispelling our strong suspicion that the Government just deported a U.S. citizen with no meaningful process.” Judge Doughty explains in his order that he placed a call to government lawyers after VML’s lawyer filed for an injunction so he could “speak with VML’s mother and survey her consent and custodial rights.” He explained that he “was independently aware at the time that the plane, tail number N570TA, was above the Gulf of America.” He relates that the government’s lawyers informed him that “a call with VML’s mother would not be possible, because she (and presumably VML) had just been released in Honduras.” The Judge doesn’t seem particularly happy with the government going into the hearing. Finally this week, we await Trump’s promised replacement of Ed Martin, who flirted with Nazis and January 6 defendants, as the U.S. Attorney for the District of Columbia. Martin will move over to a judge in Main Justice. His replacement as Interim U.S. Attorney is TV Judge and Fox News host Jeanine Pirro. Pirro is a former Westchester County, New York, DA, but hasn’t been in law enforcement for 20 years. The only tweet I’ve ever had pinned on Twitter reads, “The first time President Obama met with his US Attorneys, he told us, ‘I appointed you but you don’t serve me. You serve the American people. And I expect you to act with independence & integrity.’ None of us ever forgot that.” U.S. Attorneys have to set aside any considerations outside of the facts and the law when they assess the matters before them. They aren’t the president’s lawyers; they don’t advocate for his causes or his personal interests. Pirro’s track record of supporting Trump’s outrageous claims of fraud after the 2020 election suggests she can’t, or to be more precise, won’t, do that. She was a TV Judge. The people in Washington, D.C., deserve a real-life U.S. Attorney. Monday night at 6 p.m. ET, I’ll be on Substack Live with my former U.S. Attorney colleague and current podcast co-host Preet Bharara to talk about what real U.S. Attorneys do. I hope you’ll join us! We’re in this together, Joyce |
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.