Birthright Revisited: The Ninth Circuit’s Bold Play

Birthright Revisited: The Ninth Circuit's Bold Play

The Ninth Circuit Court of Appeals threw an absolute fastball at the Supreme Court this week over Donald Trump's plans to revoke birthright citizenship.

At the end of its term, the Supreme Court ruled in Trump v. CASA that the president could go ahead with his unconstitutional policies because lower courts are not allowed to impose nationwide injunctions on unconstitutional policies. The high court said that lower courts can impose injunctions only to give the plaintiffs before them "complete relief"—and do nothing more.

The case before the Ninth Circuit was brought by the states of Arizona, Illinois, Oregon, and Washington. These states argue that Trump's revocation of birthright citizenship is unconstitutional and that the only way to provide them with "complete relief" is to block the order nationwide. As I explained in my article about birthright citizenship, the use of state-by-state definitions of citizenship takes us back to the antebellum era and was literally one of the causes of the Civil War.

The Ninth Circuit agreed with the states and reimposed a nationwide injunction on the birthright citizenship executive order. Now the case gets kicked back to the Supreme Court.

This is the equivalent of the Ninth Circuit's telling the Supreme Court, "You're gonna have to shoot me." They are not cowering; they are not obeying in advance. If the Supreme Court wants to end birthright citizenship, it's going to have to do it the ugly way.

Anyway, the Ninth Circuit is based in San Francisco, where I will also be on November 4 to celebrate The Nation's 160th anniversary. Please come! In addition to me, you'll get to hear from Nation editor, publisher, and all-around legend Katrina vanden Heuvel, my brilliant colleague Joan Walsh, former governor Jerry Brown, former labor secretary Robert Reich, and others. Stop by and say hello if Trump hasn't nuked the state by then.

The Bad and The Ugly

A comprehensive analysis of the Trump administration's legal actions shows that it's defied court orders one-third of the time. If we lived in a functional country, this would matter.
Republicans are starting to get nervous that neither Sam Alito nor Clarence Thomas will retire before the midterms, which means that, if Democrats can somehow take back the Senate, conservatives could face the loss of two seats, threatening their supermajority on the Supreme Court. I no longer allow myself to hope for things, but it would be great if their fears came true.
Trump has awarded a $1.26 billion contract to turn Fort Bliss, in Texas, into the largest immigration detention center in the country. No word on whether the federal government has any money left to fund flood prevention systems in Texas.
Trump is suing Rupert Murdoch over The Wall Street Journal's revelations about the birthday card Trump reportedly sent to Jeffery Epstein. I feel like a prehistoric mammal watching a tyrannosaurus and a triceratops duke it out, just waiting for a giant meteor to crash into the earth.
This is from a Fox News poll, so consider the source: Apparently, the Supreme Court's approval rating has rebounded to 47 percent, nine points up from its record low of 38 percent last June. This makes sense to me. The Supreme Court is letting the democratically elected president do whatever he wants. People approve of that. When they didn't let the last democratically elected president, Joe Biden, do what he wanted to do, people disapproved. What I take from this is that people prefer it when the unelected court allows elected officials to do what they elected them to do.

Inspired Takes

Dave Zirin explains in The Nation how Trump is trying to distract from his Epstein troubles by turning to football. Well, by turning to racial slurs in the guise of football teams.
Matt Ford takes a deep dive into alleged attempted rapist Brett Kavanaugh's concurrences and how they're designed to help Trump. I'm glad he did, because Kavanaugh is an incredibly important justice when it comes to how things actually play out on the court. He's critical, but I struggle to take him seriously because I believe that he's also an idiot who lacks the character to be a judge in a television singing contest, much less on the Supreme Court.
I saw a painting on the Internet that depicts various past and present Supreme Court justices in bathing suits at the beach, and I immediately wanted to close my computer and throw it into the ocean. But Jay Willis of Balls and Strikes wanted to know more about how this painting came to be.

Worst Argument of the Week

This week, the Supreme Court allowed Trump to fire the three Democratic members of the Consumer Product Safety Commission. Trump was not required to give a reason or show cause. The members were Democrats, and that is enough for the Supreme Court. The ruling is in keeping with the court's grant of kingly powers to President Trump.

Although I'm writing this under the heading "Worst Argument of the Week," the truth is that, as is now standard, the Republican justices didn't actually make an argument. They just rubber-stamped Trump's authoritarian actions, as they did when they allowed him to gut the Department of Education and fire the Democratic members of the National Labor Relations Board.

If I sound defeated, it's because I am. The Supreme Court is going to let Trump do whatever he wants, and I don't know how many times I can write that before I end up like Jack Torrance in The Shining.

So my actual choice for "worst argument of the week" is the drivel put down by literally anybody who argues that a Democratic president shouldn't do the exact same thing as Trump is doing should Democrats ever be allowed to win the presidency again. The next Democratic president needs to fire every single Republican political appointee in the executive branch. Every Republican-appointed lawyer at the DOJ, every Republican commissioner on the FEC or SEC. Every. Single. Republican.

Anything less is weakness and bullshit.

I will be bringing this up again over the course of the 2028 primaries.

A close-up of a sculpture of Breonna Taylor in Union Square, New York City. (Alexi Rosenfeld / Getty Images)

What I Wrote

One of the cops who helped kill Breonna Taylor was sentenced to 33 months in prison. That's more than what the Trump Justice Department was asking for, but still a fundamentally light sentence. I explain why.
I highlighted a Fifth Circuit opinion about stop-and-frisk. On its face, it's another ridiculous ammosexual ruling. But I explained how the case illustrates the uselessness of making "good arguments" in front of Republican judges. Even if you have the best argument, and even if it's an argument the Republicans agree with, they will still find a way to engineer the terrible outcomes they want.

In News Unrelated to the Ongoing Chaos

I hated Hulk Hogan before it was cool to hate Hulk Hogan. It probably goes all the way back to my watching wrestling on the one television we had in our house when I was growing up. My dad walked by as the Hulkster was saying "take your vitamins" or whatever, and my dad deadpanned, "He's not taking vitamins. He's taking steroids. Don't take steroids like that man."

It was either that, or the fact that while all the other kids were turning into little "Hulkamaniacs," I decided to support The Iron Sheik. Why? Because, even at 8 years old, I knew that jingoistic, anti-immigrant claptrap was not for me.

My hatred of Terry Bollea (Hogan's real name) only grew as I grew up and learned more about him. He got booted from wrestling for uttering racial slurs. I learned from Jesse Ventura that Hogan was primarily responsible for killing unions in pro wrestling.

By the time I had an affiliate column at Gawker, I was already sick of the guy. And then he helped kill Gawker.

My point is this: Anybody with a cursory knowledge of Hogan's career and brand should have hated this guy long before his MAGA turn. Hogan's being MAGA was about the most predictable thing he could have done.

Anyway, Hulk Hogan died this week, at the age of 71. He was a bad influence on this world.