The Kavanaugh Opening: The Road Beyond Executive Power in the Birthright Citizenship Debate

[Luis Gonzalez]

The Kavanaugh Opening
The Road Beyond Executive Power in the Birthright Citizenship Debate

The Last Wire

Every outlet covering Trump v. Barbara is calling Kavanaugh's opinion a "concurrence."

It isn't.

He dissented from the majority's constitutional reasoning while voting for the result, then handed Congress a narrower, statutory road the majority never closed, one they themselves called internally inconsistent.

Six votes to affirm the judgment. Five votes for the reasoning behind it. That gap is not a technicality. It is the whole story.

The Last Wire breaks down what Kavanaugh's opinion actually says, where the majority pushed back on him directly, and why the next round of this fight happens in Congress, not the courts and not the White House.

Full breakdown at The Last Wire

[Luis Gonzalez]

Here you go @Bigun

[Bigun]

Here you go @Bigun

I read it @Luis Gonzalez and fail to understand how you, or Justice Kavanaugh, can believe that there is any legislative path short of another amendment to the constitution that would correct what the majority has held in this case i.e. that the constitution itself (14th amendment) confers citizenship on anyone who happens to be born on U. S. soil regardless of circumstance.

I sincerely want to be wrong but my brain says no.

The article I posted here yesterday is a very good primer on the subject.

Trump v. Barbara constitutionalizes a policy that the framers of the Fourteenth Amendment and the Founders would have soundly rejected.

[Luis Gonzalez]

I read it @Luis Gonzalez and fail to understand how you, or Justice Kavanaugh, can believe that there is any legislative path short of another amendment to the constitution that would correct what the majority has held in this case i.e. that the constitution itself (14th amendment) confers citizenship on anyone who happens to be born on U. S. soil regardless of circumstance.

I sincerely want to be wrong but my brain says no.

The article I posted here yesterday is a very good primer on the subject.

Well… I’m going with Kavanaugh on this.

We are NOT going to accomplish a constitutional amendment.

[Bigun]

Well… I’m going with Kavanaugh on this.

We are NOT going to accomplish a constitutional amendment.

I agree that there will be no new amendment and wish you the best of luck in trying to overthrow what has been done by legislation short of that.

[Luis Gonzalez]

I agree that there will be no new amendment and wish you the best of luck in trying to overthrow what has been done by legislation short of that.

We need a GOP-controlled legislature… with a modicum of cojones to just modify 1401C (IIRC) with new rules and carve outs to better define who and what qualifies as that person “under the jurisdiction” of The United States.

[Luis Gonzalez]

I read it @Luis Gonzalez and fail to understand how you, or Justice Kavanaugh, can believe that there is any legislative path short of another amendment to the constitution that would correct what the majority has held in this case i.e. that the constitution itself (14th amendment) confers citizenship on anyone who happens to be born on U. S. soil regardless of circumstance.

I sincerely want to be wrong but my brain says no.

The article I posted here yesterday is a very good primer on the subject.

Your reading is actually closer to Chief Justice Roberts’ majority opinion than mine. The majority’s position is that the Fourteenth Amendment itself resolves the question and that the Citizenship Clause protects children born here regardless of their parents’ immigration status. Under that interpretation, Congress would face a very steep constitutional barrier short of amendment.

Where I differ is in how I read Justice Kavanaugh’s concurrence. I do not understand him to be saying Congress can simply ignore the Fourteenth Amendment or overrule the Court. His argument is narrower.

The majority held that the President could not create a new exception by executive order because Congress has already enacted 8 U.S.C. §1401(a), which codifies citizenship at birth. That was the legal basis for rejecting the executive action.

Kavanaugh’s separate point was that the constitutional question and the statutory question are not necessarily identical. He specifically wrote that “Congress could, consistent with the Fourteenth Amendment, amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship.”

That does not mean Congress would automatically prevail in a future case. The Court could reject such legislation. It means the next case would present a different constitutional question.

This case asked whether the President could alter citizenship law through executive action. A future case would ask whether Congress has authority to revise the statutory framework it created.

The majority criticized Kavanaugh’s reasoning, but it did not expressly hold that Congress lacks any legislative authority in this area. That distinction is why I believe the debate moves from the executive branch to Congress.

The amendment question may ultimately become part of the argument. But Kavanaugh’s opinion suggests the Court has not yet declared that an amendment is the only possible path.

That unresolved question is the opening I believe the opinion left behind.

[Bigun]

8 U.S. Code § 1401 - Nationals and citizens of United States at birth

The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof; ...

All that does is repeat what the 14th amendment already says and leads us right back to what "and subject to the jurisdiction thereof" means. I think Justice Thomas, joined by Justice Gorsuch, got that exactly right in their dissent.

All that crap the Chief Justice wrote is total bullshit - pure sophistry - if you ask me.  You really should read the article I linked above. @Luis Gonzalez

[DefiantMassRINO]

Write a law as a stop-gap measure ... low-hanging fruit ... it may or may not withstand SCOTUS scrutiny ... while the lawyers bill hours in Federal courts, get the Constitutional Amendment rolling.

Trying may be the first step towards failure, but it is also a step towards success.

Also, write laws to reform the Judiciary Circuit Court system so judges' ruling are only effective for the district in which they are filed and issue ... only SCOTUS rullings can take effect for the entire country ... need to keep Presidents and Rouge Judges from legislating from behind the desk and the bench.

The Congressional Republicans are a bunch of try-nothings and do-nothings.

[Luis Gonzalez]

All that does is repeat what the 14th amendment already says and leads us right back to what "and subject to the jurisdiction thereof" means. I think Justice Thomas, joined by Justice Gorsuch, got that exactly right in their dissent.

All that crap the Chief Justice wrote is total bullshit - pure sophistry - if you ask me.  You really should read the article I linked above. @Luis Gonzalez

I read it. I don’t agree with him. I agree with Kavanaugh.

[Luis Gonzalez]

Write a law as a stop-gap measure ... low-hanging fruit ... it may or may not withstand SCOTUS scrutiny ... while the lawyers bill hours in Federal courts, get the Constitutional Amendment rolling.

Trying may be the first step towards failure, but it is also a step towards success.

Also, write laws to reform the Judiciary Circuit Court system so judges' ruling are only effective for the district in which they are filed and issue ... only SCOTUS rullings can take effect for the entire country ... need to keep Presidents and Rouge Judges from legislating from behind the desk and the bench.

The Congressional Republicans are a bunch of try-nothings and do-nothings.

If the bleep Congress actually did anything of any significance I’d probably soil myself.

It can’t be the Executive and there is no way that any Congress we can seat will try a Constitutional Amendment.

[Luis Gonzalez]

All that does is repeat what the 14th amendment already says and leads us right back to what "and subject to the jurisdiction thereof" means. I think Justice Thomas, joined by Justice Gorsuch, got that exactly right in their dissent.

All that crap the Chief Justice wrote is total bullshit - pure sophistry - if you ask me.  You really should read the article I linked above. @Luis Gonzalez

I did read the article, and I think it makes a serious argument about the meaning of “subject to the jurisdiction thereof.” I agree that the phrase is the constitutional hinge point. Where we disagree is what follows from that.

I think Justice Thomas and Justice Gorsuch are making the stronger historical argument about the original meaning of the Fourteenth Amendment, but I think Kavanaugh’s approach is the more practical constitutional path for the issue before the Court.

The question in this case was not whether Congress has the power to revisit the statutory framework. The question was whether a President can do it alone through executive action. The majority said no because Congress already enacted 8 U.S.C. §1401(a), which defines citizenship at birth under the current interpretation of the Fourteenth Amendment.

Kavanaugh’s point was not that Congress can ignore the Constitution. It was that there is a difference between the constitutional floor and the statutory structure Congress has built on top of it. If Congress believes the current interpretation of birthright citizenship is wrong, the constitutional question is whether Congress has authority to amend that statutory framework within the limits of the Fourteenth Amendment.

That is a different question from whether a President can simply announce a new rule.

The reason I lean toward Kavanaugh’s approach is that it keeps the constitutional separation of powers intact. Courts decide what the Constitution means. Congress legislates within whatever constitutional boundaries the Court recognizes. The executive branch does not get to bypass both.

The Thomas and Gorsuch argument may ultimately prevail if the Court revisits the meaning of “subject to the jurisdiction thereof.” But until that happens, the debate over what Congress may constitutionally do remains open.

So I think the disagreement comes down to this: you see the Fourteenth Amendment question as already settled by its "original" meaning. I see the current constitutional interpretation as establishing the rule for today, while leaving open whether Congress can change the statutory framework tomorrow.

[Bigun]

I did read the article, and I think it makes a serious argument about the meaning of “subject to the jurisdiction thereof.” I agree that the phrase is the constitutional hinge point. Where we disagree is what follows from that.

I think Justice Thomas and Justice Gorsuch are making the stronger historical argument about the original meaning of the Fourteenth Amendment, but I think Kavanaugh’s approach is the more practical constitutional path for the issue before the Court.

The question in this case was not whether Congress has the power to revisit the statutory framework. The question was whether a President can do it alone through executive action. The majority said no because Congress already enacted 8 U.S.C. §1401(a), which defines citizenship at birth under the current interpretation of the Fourteenth Amendment.

Kavanaugh’s point was not that Congress can ignore the Constitution. It was that there is a difference between the constitutional floor and the statutory structure Congress has built on top of it. If Congress believes the current interpretation of birthright citizenship is wrong, the constitutional question is whether Congress has authority to amend that statutory framework within the limits of the Fourteenth Amendment.

That is a different question from whether a President can simply announce a new rule.

The reason I lean toward Kavanaugh’s approach is that it keeps the constitutional separation of powers intact. Courts decide what the Constitution means. Congress legislates within whatever constitutional boundaries the Court recognizes. The executive branch does not get to bypass both.

The Thomas and Gorsuch argument may ultimately prevail if the Court revisits the meaning of “subject to the jurisdiction thereof.” But until that happens, the debate over what Congress may constitutionally do remains open.

So I think the disagreement comes down to this: you see the Fourteenth Amendment question as already settled by its "original" meaning. I see the current constitutional interpretation as establishing the rule for today, while leaving open whether Congress can change the statutory framework tomorrow.

It's worth a try because you are exactly right in saying there will not be any new amendment.  I'm almost 78 years old so I doubt I'll be around to know if it works.