As of March 21, there have been many lawsuits challenging illegal activities by the Trump administration, according to legal news site Just Security. It has a lot to track.
However, the two issues raised by some of these lawsuits stand out as Trump's most blatant unconstitutional violations and therefore of particular attention.
One is whether Trump can simply cancel federal spending mandated by Congressional actions, known as “water storage.” Future Supreme Court Justice William Lanequist wrote in a 1969 Department of Justice memo:
Another issue is birthright citizenship. The Constitution absolutely makes it clear that people born in the United States and are subject to the law are citizens, regardless of the circumstances of their parents' immigration. One Reagan-appointed judge said of Trump's attempt to strip some Americans born in the country of citizenship: “I have been on the bench for over 40 years, so I can't remember another case where the questions presented are just as clear as this.”
The current Supreme Court is not only so far away, but surprisingly partisan. The court has resolved old complaints over the past few years and overturned a decades-old case that Republicans have long found unfavourable. Republican leader Trump has determined that he is even allowed to commit crimes using his official authority.
Therefore, it is reasonable for the majority of judiciaries to worry about doing just about anything the Republican administration wants them to do.
This is why birthright citizenship and water storage cases are so important home. Neither a competent lawyer nor a reasonable judge could conclude that Trump's actions were legal in either case. There is no serious discussion about what the Constitution says about either issue. In either case, if the courts support Trump, it's hard to imagine a judiciary offering meaningful pushbacks to what Trump wants to do.
Luckily there are early signs that this will not happen. On the issue of water storage, the Supreme Court recently rejected the Trump administration's request to block a lower court order that forces the administration to pay around $2 billion to foreign aid organizations.
The vote was 5-4, and the court's decision likely caused an inadvertent mistake by Trump's lawyers. Still, even Trump's small defeat shows that most justice is not eager to bail out Republican leaders.
Similarly, three cases posing the issue of birthright citizenship have recently landed in the shadow docket of the court. The same issues as emergency operations were decided very quickly outside the normal court schedule. So far, the courts have issued only short orders from April 4th, indicating that judges will not start considering lawsuits the earliest, from more than three weeks after the Trump administration has called for them to intervene.
While that is not a crucial indication that birthright citizenship is safe, the fact that the court decided to wait three weeks before examining the orders of lower courts that protected birthright citizenship suggests that most of justice is taking the Trump administration's argument very seriously. If they had, they probably would have heard the case sooner – for example, in a foreign aid case where four justices were sided with Trump, the plaintiffs, for example, were given just two days to respond to the Justice Department debate.
The legal argument of lockdown is really, really bad
Trump has insisted on sweeping powers to cancel congressional spending, including dismantling entire institutions like the United States International Development Agency (USAID). He also issued executive orders aimed at stripping citizenship from undocumented mothers or many children born from parents who are temporarily present in the United States. So far, the courts have treated both of these actions skeptical.
Lanequist's response to the reservoir speaks for itself. There is nothing in the constitution to support the argument that the president can impose funds to order Congress to spend on him. Certainly, the only language of the constitution that appears to speak to the issue is the reductions on Trump. In particular, the Constitution states that the President “respects that the law is faithfully enforced.” Therefore, the President is obliged to faithfully implement the laws that provide federal spending.
Furthermore, it is worth noting that at least two court Republicans have previously expressed skepticism about the closure. In a 2013 opinion, Judge Brett Kavanaugh wrote, “Even the president has no one-sided authority to refuse spending.” And in a 1985 White House memo, Roberts wrote, “No area appears to be more obvious in Congressional states than the power of the wallet.” (It is worth noting that Roberts also suggested that his obsession with the memo may have greater authority over foreign policy-related spending.)
Legal debate about birthright citizenship is getting worse
It's even easier when it comes to birthright citizenship. Amendment to Section 14 provides that “every person born or naturalized in the United States, and everyone subject to that jurisdiction is a citizen of the United States and the state in which they reside.” If the federal government is able to enforce the law against that person, someone is subject to US jurisdiction. Undocumented immigrants and their children are clearly subject to US law. Otherwise, they cannot be arrested or deported.
Just as the Supreme Court was held United States vs. Wong Kim Ark (1898), the “jurisdictional subject” exception of birthright citizenship is narrow, and mostly applies to children of “foreign diplomatic representatives” who have diplomatic immunity from US law, as well as children born from alien enemies in hostile occupations.
At least three courts have issued orders that blocked an attack on Trump's birthright. The simplest thing to call on the Supreme Court to narrow these orders down is that the Trump administration has argued that the term “jurisdiction” actually means “loyalty.” So, if you don't borrow “primary loyalty to the United States, not “alien power” then someone is not a citizen. ”
However, there are two reasons to doubt that even the Trump administration agrees to this argument. First, Trump's executive order aims to strip some children born to foreigners of citizenship. For example, two legal permanent residents children remain citizens. However, if the 14th amendment does not apply to those who owes “major loyalty” to “alien power,” it means that all foreign children should be stripped of their citizenship. The constitution does not distinguish based on whether or not the child's parents are legally present in the United States. Nor do they draw a line based on whether those parents are temporary or permanent residents.
The second reason is that the administration doesn't even ask the court to fully restore Trump's birthright citizenship order. Instead, we ask the court to narrow down the decisions of the lower court so that they apply to the plaintiff only in certain cases that challenge the order. If Trump's lawyers think they have a victory argument, they will almost certainly ask the judiciary to consider the merits of this case.
The question of whether a lower court judge could issue what is known as a “national injunction” is an order that suspends the entire federal policy, rather than allowing plaintiffs to ignore that policy in individual cases, which has remained for quite some time. It is these orders that block attacks on Trump's birthrights. Trump's Justice Department pushed the court to limit these national injunctions during his first term, as did the Biden administration. However, the court has so far allowed at least some of these broad orders to withstand.
There is a strong debate on these nationwide injunctions, but courts have resisted efforts to limit them for years. It is very unusual for the judiciary to suddenly decide to strip the lower courts of their powers, and issues these national orders in innate citizenship cases.
In any case, the only outer sign the judge has given regarding their views on birth rights citizenship suggests that Trump will lose. When the Department of Justice asks the Department to maintain a lower court decision, one judge will usually ask the other party in the case to meet the request by a short deadline. However, in this case, the court gave the plaintiffs who argued to respond in favor of birthright citizenship over three weeks.
Unless the courts do nothing, lower courts remain an order that blocks attacks on Trump's birthrights. And it is unlikely that justice will do anything until she reads the plaintiff's response. So, by tying this case for another three weeks, Justice ensured that Trump's executive order would not come into effect anytime soon.
All of this suggests that the Supreme Court is unlikely to support Trump on his two most obvious violations of the Constitution. That doesn't mean that this court will serve as a meaningful check on many of Trump's other illegal activities. But it suggests that at least some members of the Republican majority of the courts may say “no” to party leaders.
