As previously reported by Local News Pasadena, on May 15th the US Supreme Court will hear arguments in a case concerning the Trump administration’s efforts to end birthright citizenship.
Executive Order 14160 was signed on President Trump’s first day in office, part of his promise of immigration reform, which aims to end automatic citizenship for children born in the United States to undocumented immigrants or certain non-citizens, such as those on temporary visas.
However, the justices will not rule on the constitutionality of the Executive Order (EO) itself. Instead, they will consider whether three lower court judges overstepped their authority by issuing nationwide injunctions that blocked the EO from taking effect.
The three injunctions against the EO state that the order’s attempt to amend the Fourteenth Amendment unilaterally warrants an injunction, arguing that birthright citizenship is a uniform right applied nationwide and is beyond the President’s power to redefine.
The Trump administration counters that the 14th Amendment does not apply to everyone born on US soil; that it excludes children of undocumented immigrants and those here on temporary visas…a controversial interpretation and not widely accepted in legal precedent, with most courts and scholars historically rejecting this view.
If the Supreme Court rules in favor of the Trump administration on the injunction issue, the administration could proceed with enforcing the policy in states that have not blocked it, even as the larger constitutional battle continues.
The Issue: Can federal district courts issue nationwide injunctions?
We reached out to Pasadena attorney Michael Overing of the Overing Morales Professional Law Corporation, an adjunct professor at the USC Annenberg School for Communication, who teaches courses in Digital Social Media, Entertainment Law, and Censorship / First Amendment Rights.
Photo: LinkedIn
“The first issue is birthright citizenship,” says Overing, “which has been in place for over 125 years. The second issue is for SCOTUS to consider the administration’s broader contention that district courts have issued too many nationwide injunctions that block the Trump administration from being able to ‘carry out its functions.'”
“The 14th Amendment has been in place since 1868,” continues Overing. “But the language of the 14th Amendment states, ‘All persons born or naturalized in the United States, AND subject to the jurisdiction thereof, are citizens of the United States…’
“The conjunction ‘and’ is critical to the argument. So, there are literally thousands of cases that have been decided, which state that when someone is only in the US briefly, with no regular, systematic ties, the US does not have jurisdiction over them. This makes sense: if you flew into LAX and had a layover for a few hours, no one would claim that the US has jurisdiction over your person. ‘Jurisdiction’ is a term of art and practice. It really does matter. And, with an originalist Supreme Court, the words do matter — not an expansive interpretation. There’s a pretty good chance that merely giving birth will no longer confer citizenship.”
“The real issue is far more straightforward than portrayed by the press,” admonishes Overing. “The key is the meaning of ‘and.’ Just being present (and birthing) is not a standard any other nation applies to questions of citizenship.”
Federal judge shopping and jurisdictional scope
“This has become a serious issue that started way before Trump took office,” states Overing. “The question is whether a federal judge has the ability (jurisdiction) to issue injunctions outside of his/her immediate district. If the jurisdiction exists, the injunctions are valid. If it doesn’t exist, the injunctions are an abuse of power. Here, we’re seeing a lot of cases that are being brought in politically favorable locations with a prayer for a nationwide injunction. This promotes forum shopping (e.g., if I don’t get a good judge assigned in California, you can file the same lawsuit in Massachusetts, and I’ll dismiss mine). This is a horrible tax on judicial resources and calls into question (for some) the legitimacy of the federal courts.”
“Ordinarily, a federal court does not have jurisdiction outside of the district they are sitting in,” Overing continues. “But, in the last 30-40 years, it has become pretty commonplace for the more activist judges to accept arguments about nationwide injunctions in order to address a perceived nationwide injury.”
Is any of this an effective use of resources?
“It is a function of the State Attorneys General getting together in early November and divvying up the causes that each state would take on and file suit over,” expounds Overing. “Governor Newsom has appropriated significant funds for the California Attorney General to sue Trump. It matters little whether there is a Republican or a Democrat in the Presidency — both sides use this tactic if the powers are not checked. The reason you are hearing about it more now is because the press sees every action taken against Trump as a win. But there is tremendous risk here: Trump may (and has already) won a bunch of these lawsuits. His team is making a lot of precedents because some of these lawsuits were ill-founded and should never have been brought.”
“What the voters of California need to know is how much time and tax money our AG is spending to file lawsuits against Trump over issues that I’d be willing to bet most Californians don’t care about. We’d rather see gas prices go down. We’d rather see homeless issues addressed. Instead, we see the AG fighting over matters that have no traction in California.”
Stay tuned.
