Legal News: A Very Roundabout Approach to the Citizenship Question

Yesterday, utilizing the emergency docket, the Supreme Court heard oral arguments in a case concerning Donald Trump's executive order purporting to end birthright citizenship for certain classes of people born in the U.S.

In cases brought by states, immigrants rights groups, and pregnant women, three different district courts have already weighed in, and all have found that the XO violates the Fourteenth Amendment's clear language—not to mention Supreme Court precedent—that anyone born in the U.S. is a citizen regardless of how their parents arrived in this country. Each court preliminarily enjoined the Trump administration from enforcing the XO. The White House asked the appeals court for a stay pending appeal, and when the appeals court said "no," the administration went to SCOTUS for an emergency stay of the injunctions. Instead of denying the stay, and allowing the injunctions to remain in place, given how wrong Trump is on the merits, the Court decided that it would use this case to examine the so-called nationwide injunction problem.

As a brief background, given the slew of unlawful Executive Orders from Trump v2.0, we've seen an uptick in courts striking them down, with nationwide reach. The effect of striking them down is that they can't be used at all against anyone—not just against the parties involved in the case. We also saw this during Biden's presidency, of course, most obviously with Republicans filing suits to get in front of Matthew Kacsmaryk, who issued a nationwide injunction declaring mifepristone to be illegal for all Americans.

Yesterday, in a dynamic reminiscent of the presidential immunity case, the Justices excoriated anyone who tried to mention the actual facts of the case before them. Presumably this is because the facts here, like those in the immunity case, do not reflect well on Trump. This Supreme Court has really perfected the art of avoiding any issue where they might have to rule against Trump. Associate Justice Brett Kavanaugh might as well have been speaking directly to Trump when he decreed that every president who has used XOs has done so with good intentions and has perhaps been frustrated by the slow pace of Congress and has been tempted to "push the envelope." Yeah, right. Condemning hundreds of men to life in a torture prison in El Salvador without a finding of any wrongdoing, and doing so under a law to be used only during times of war, when the U.S. is clearly not at war, is a good-faith attempt to push the envelope? C'mon.

In this strange posture, the parties briefed only the issue of when, if ever, a district court should be able to issue an injunction that applies nationwide. The government is asking for a bright-red-line rule that a court NEVER has that authority, except in the context of a class action or to enforce a Supreme Court decision. The Court did not seem willing to go that far, but struggled with how to contain a district court that has abused its power and encouraged forum-shopping among certain parties (ahem, Kacsmaryk). Justice Ketanji Brown Jackson pointed out that the term "nationwide injunction" is itself a misnomer, because if the administration has broken the law through some executive action they claim applies to everyone, how is it legal to apply it to anyone? Chief Justice John Roberts implied that the Court's ability to act quickly when necessary would obviate any fallout from patchwork injunctions.

Meanwhile, Associate Justice Elena Kagan made the excellent point that the government holds all the cards here, because they have lost in every court on this issue. If the Court agrees that the injunctions issued so far are only effective as to the parties involved, and the only way for an order to apply nationwide is for the Supreme Court to weigh in, then if the government doesn't petition for cert, how does the issue ever reach the Supreme Court for it to weigh in? Solicitor General John Sauer also admitted that they would vigorously contest class certifications, and could very well end up back before SCOTUS with an argument that that avenue should not be available either.

Remarkably, even Justice Samuel Alito seemed skeptical that the Court could create a bright-red-line rule limiting a lower court's authority to provide equitable relief. Jeffrey Feigenbaum, solicitor general of New Jersey, argued for the states, and said that in terms of the Fourteenth Amendment issue, nothing other than a nationwide injunction is workable to avoid having one's citizenship turn on the state where one happens to be located. Imagine being a citizen in California but being stripped of citizenship if one moves to Texas?

Because this was heard on the court's emergency docket, we will probably see a decision before the Court's current session ends in either late June or early July. (L)

In Congress: At Long Last, Are Republicans Finding Their Spines?

We have wondered many times if Donald Trump would eventually push things too far, causing congressional Republicans to find a little courage, and behave as if they are, you know, part of a co-equal branch of the government. They may not be there quite yet, but the last few days HAVE seen a well-above-average amount of pushback from the legislative branch (and, more specifically, the upper chamber of the legislative branch). To wit:

De Plane, De Plane: The Republican members of the Senate are very clearly unhappy with the scheme by which the Qatari government gives Donald Trump a luxury airplane for his use, both as the president, and afterwards as the former president. The latest prominent member of the upper chamber to speak up is Sen. Roger Wicker (R-MS), chair of the Senate Armed Services Committee, who said: "It would be like the United States moving into the Qatari embassy. I'm not sure how quickly the Qatari aircraft can be retooled."

Wicker thus joins a long list of Republicans who are usually willing to look the other way with Trump, but who have been critical of the plane plan: Majority Leader John Thune (SD), Ted Cruz (TX), Josh Hawley (MO), Rand Paul (KY) and Rick Scott (FL) among them. As we have already noted, the clear message here is: "Don't try it, Donald." If the President ignores these signals, it's now evident that the Senate will take action. And remember, it only takes a few Republican votes.

The Library of Congress: The GOP members of Congress were OK with it while DOGE ran roughshod over many and varied departments of the executive branch. But when Trump deigned to make personnel decisions for the Library of Congress, he may have crossed a line. Senate Republicans are apparently willing to accept the terminations of Librarian of Congress Carla Hayden and Register of Copyrights Shira Perlmutter, but they are not amenable to Trump choosing replacements, particularly when those replacements are Trump flunkies. If he insists, he could be cruising for another bruising.

The Budget: Trump has many things he wants to accomplish with his "big, beautiful" budget bill. Speaker of the House Mike Johnson (R-LA) is trying to make those things happen, while also keeping at least 216/219ths of his conference happy. Yesterday, it was a different Republican Johnson, namely Sen. Ron (WI), who was on TV to warn Trump that he's at risk of getting schlonged. The Wisconsinite, and several of his colleagues, wish to live in a magical world where the deficit stays steady, spending is slashed, and Medicaid and spending on clean energy are kept intact. The senators are willing to forego tax cuts in order to achieve all of this, but even that is not likely enough to make all these moving parts work together. In any event, if Johnson does get a big, beautiful bill through the House, it looks like it's going to run into a big, beautiful buzz saw in the Senate.

Again, we would not want to draw too many conclusions from what is still limited resistance to Trump from his fellow Republicans. Nonetheless, they are already getting many earsful from constituents, and, unlike him, most of them have to think about getting reelected, possibly as soon as next year. Also remember the lesson of The Emperor's New Clothes: Once one or two members get away with rebelling against Trump, it gets vastly easier for others to follow. (Z)

Today in Stupid Distractions: Comey Posts Pic, Now Under Investigation

Sigh. We really don't want to write about this story, but it was all over the place yesterday. We suppose readers may want to know about it, just in case it comes up again. Say, in every speech Donald Trump makes for the next 6 months.

The long, and the short, of it is that former FBI Director James Comey—who, of course, has a history with Trump—decided to get frisky on social media yesterday. So, he posted this image to Instagram, along with the comment: "Cool shell formation on my beach walk":

In case you don't immediately get it, "86" is slang for "get rid of" and Trump is president #47.

After Comey posted the message, it caught fire online, and within hours there was much gnashing of teeth and rending of garments from right-wingers, both within the White House and without, with the notion being that Comey was calling for Trump to be assassinated. This is a pretty grim reading of things, especially since "86" does not usually refer to literal killing. In fact, it comes from the restaurant industry, where it refers to taking something off the menu because the restaurant has run out of the day's supply of item. And even if you think Comey WAS thinking about assassination (and note that he promptly apologized and deleted the message once that connotation was pointed out to him), he's not exactly in a position to make that happen.

We would guess that you're seeing three dynamics in play here, in roughly equal measure. First, Trump is very much persuaded that he is a victim, always, and this story plays into that narrative. Second, when Trump or one of his underlings hints at violence against an opponent (say, Hillary Clinton), then that's just "politics," but when the shoe is on the other foot, it's an offense on par with the St. Valentine's Day Massacre. Third, between the QatAir Force One fiasco, and the wrangling over the budget, it's not been a great week for the administration or the GOP, and this Comey business is an excellent distraction.

And so, the former director is now being investigated by the Department of Homeland Security, at the behest of DHS Secretary Kristi Noem. We assume nothing will come of this, though given who is leading the charge, we suppose it's at least possible that Comey ends up in a Salvadoran prison, or maybe that Noem takes him behind the barn and... well, you know how she rolls. (Z)

Jolly Olde England: A Few More Reports on the Late Election

Last week, we had a report from reader A.B. in Lichfield, England about the recent local elections. A.B. observed that the most Trumpy British party (ReformUK) had a very good performance, while the most anti-Trump British party (the Liberal Democrats) also did pretty well. The main conclusion was that while there has been an anti-Trump backlash in places like Australia and Canada, the phenomenon may not be global.

We like to keep on top of major developments in foreign politics, particularly in major powers and in Western democracies, because what happens abroad may be revelatory, in some ways, when it comes to what is happening, or what will happen, in the United States. Most obviously, 2024 was a "throw the bums out" year worldwide, which ultimately was a pretty good indicator as to what was going to happen on Election Day in the United States.

Anyhow, several readers wrote in with their own takes on the British elections, and we wanted to pass those along. And so:

C.B. in Barcelona, Spain (but originally from London): I am a longtime reader of your website and a great admirer of your coverage of U.S. politics in particular. I have not sent a comment or question to you before, but I was prompted to do so by the excellent overview of the recent U.K. local elections you published from reader A.B. in Lichfield.

A.B. gives a very good and detailed summary of the elections and the emergence of ReformUK as a real force in our politics, with the increasing fragmentation of votes among the six leading parties, as the Conservatives and Labour both lose ground. A.B. also notes correctly that the use of our first-past-the-post voting system (which has usually preserved the Conservatives and Labour in power and made that power unassailable) starts to have curious effects when smaller parties reach a certain threshold in terms of vote share—it goes from protecting the power of the main parties to threatening it rather suddenly. This is the effect we have seen with Reform's success in the local elections and mayoral contests.

The only thing I wanted to point out is that turnout in these local elections is crucial, and a huge factor in the parties' relative success or failure. Turnout is usually very low in local elections (median turnout in county council elections 1990-2022 is 38% of eligible voters and for unitary authorities it's 35%). This time, turnout was overall pretty similar, somewhere between around 30% and 36% in most races.

It's also fair to say that there is something of a tradition of voters using these sub-national elections to express their disapproval with parties in power in Westminster (much as in Congressional midterm elections in the U.S.). So, Labour performing poorly is not unusual.

Having said that, and where A.B. is absolutely right is that the Conservatives are in real danger of being wiped out and replaced by Reform. Brexit identities 'Leave' and 'Remain' are still very strong for many voters in areas of the country where Reform performs well, and those voters no longer seem to trust the Conservatives to deal with the issues most salient for them—or rather, they think Nigel Farage will be more likely to deliver on those issues.

I think it's a bit too early to say what impact Farage's closeness to Donald Trump has had in these elections (among other factors), and certainly too soon to say what this all might mean for national elections in the future, but it's very true that Reform is doing well, Farage is popular with roughly 30% of voters (though a divisive figure with the wider electorate), and Reform so far don't seem to have suffered in the way the Conservatives in Canada or Australia did for their associations with the American president.

T.H. in Stewartby, England, UK: I've been a reader of your site almost since you started. It's so good to know that there are so many people left in the U.S. who aren't complete MAGA nut cases.

I have been a member of the Liberal Democrats in the UK, and their predecessor party the SDP, since 1981. I have been an active member and campaigning councillor from March 1982 up until May 2023. I had to retire on health grounds. I was first elected as a Bedford Borough Councillor in May 1986, but had actively campaigned before then. And I am still totally and utterly humbled to have received 80% of the vote in a 3-horse race the last time I stood for re-election in 2019.

I was really pleased to see the contribution from your Liberal Democrat-voting Lichfield contributor about the English local elections: Two points on A.B.'s excellent contribution:

1. I regard myself and the Liberal Democrats as center-left, not centrist.
2. I think the Liberal Democrats did much better than A.B. suggests. Yes, ReformUK did amazingly well (unfortunately), but the Liberal Democrats also did very well. Party President Mark Park put together this summary of the Lib Dems' successes:
   
   
   • Gained control of 3 county councils; neither the Lib Dems nor our predecessors ever won more in a single election
   • Won more seats than Labour for first time since 2009
   • Won more seats than Conservatives for second year in a row—and nearly as many as Conservative and Labour combined!
   • A higher national vote share than Conservatives for first time ever
   • Lib Dems now control more councils than the Conservatives
   • This is the seventh round of local election gains in a row, the longest run in our party's history
   • And it was underpinned by our best showing relative to Labour and Conservatives since 2009

B.C. in Market Harborough, England, UK: A.B. from Lichfield reads too much into England's recent local elections.

Such elections have a low turnout, are customarily used by many voters to register a protest rather than signal a substantive change of allegiance, and are notoriously unreliable indicators of national trends. For evidence of this you only need look back to the second General Election of 2017. The newly-minted Prime Minister, Boris Johnson, was desperate to call an election to break the endless parliamentary deadlock over Brexit, but he lacked the votes in the House to do so, and needed the support of another party. But then, the Liberal Democrats scored spectacular successes in local elections. Their leader, the hapless Jo Swinson, was so sure this pointed to national success that she gave her party's votes in the House to Johnson, enabling him to call a General Election.

Johnson won a Parliamentary landslide, the Liberal Democrats were all but wiped off the Parliamentary map, and Swinson lost her own seat. All this despite that recent huge local election success for the Lib Dems.

One thing that is clear is that the Conservatives are still massively unpopular. Their current leader, Kemi Badenoch, was chosen by the party because she's an extremist on many issues (particularly social) and thus appeared able to counter the threat of the Reform party. However, she's a terrible public speaker with little in the way of political instincts, all of which is the complete opposite of Reform's slick leader, Nigel Farage.

Some might argue that none of this really matters: that, on policy, you could barely get a cigarette paper between Badenoch's Conservatives and Farage's Reform, so who cares if they knock lumps out of each other? They are all basically the same headbangers.

The Labour Party has, entirely unsurprisingly, been hit by a protest vote. Their unpopularity was always inevitable: they inherited dire government finances from the Conservatives and have done some pretty unpopular things in an attempt to plug the holes. This is clearly deliberate: They are still less than a year into a 5-year term, so it obviously makes sense to get the pain out of the way as early as possible. They still have more than 4 years to attempt to turn things around (we don't have midterms, and Labour's majority in the House is so huge nothing can stop them from serving the full term).

So, all in all, it's really not possible to draw national (let alone global!) inferences from one set of quirky English local election results with the next General Election so far off.

Very interesting. Thanks to all three of you! (Z)

I Read the News Today, Oh Boy: Ron Turcotte Rode Secretariat to Victory

Did you know that the fellow who rode the greatest race horse of all time to the Triple Crown was a Canadian? Better not tell Donald Trump. He may try to impose a 200% tariff on horse races.

For last week's headline theme, we gave the hint "we suspect that when many readers get it, they will say: 'Of course, of course.'" We thought that was a pretty dead giveaway, but we nonetheless added this on Sunday: "Some readers who have already responded to this week's puzzle, liked it and said 'yea,' while others said 'neigh.'" And now, courtesy of reader M.K. in Long Branch, NJ, the solution:

The headline theme is famous horses, real or fictional:

• Habemus Papam!: Leo XIV, nee Robert Prevost of Chicago, Will Succeed Francis—Francis the Talking Mule of short story and film
• Trade Deal: What Would Paul Revere Think?—From the song "Paul Revere" by the Beastie Boys
• The Clown Show, Part V: Ed Martin Is Out—Mister Ed of the 1961-1966 TV series, of course, of course
• Malicious Compliance: Teachers Know How to Trigger Conservatives—Roy Rogers' horse
• I Read the News Today, Oh Boy: From the Desert of Khartoum to the Shores of Tripoli—Jack Woltz's horse in The Godfather, killed by Luca Brasi
• This Week in Schadenfreude: Uh, Could We Get a Citation for That?—Triple crown winner in 1948
• This Week in Freudenfreude: Popemobile to Become a World Traveler—Robert E. Lee's horse

There's actually a famous quarter horse (not mule) named Leo, but most readers went with Francis the talking mule, so either is OK. And there's a horse named Paul Revere in the song "Fugue for Tinhorns" from Guys and Dolls, though the Beastie Boys' horse named Paul Revere (surely inspired by Guys and Dolls) was the one we were thinking of. And of course Secretariat, from this headline, is possibly the most famous horse of them all.

Here are the first 50 readers to get it right:

T.F. in Craftsbury Common, VT B.M. in Chico, CA M.W. in Altea, Spain C.R. in Cromwell, CT L.R.H. in Oakland, CA K.H. in Albuquerque, NM J.T. in Philadelphia, PA S.S. in Lucerne, Switzerland J.F. in Fayetteville, NC R.A. in Chesterfield, MO K.G.W. in Lafayette, IN K.R. in Austin, TX D.S. in Layton, UT S.K. in Ardmore, PA B.E. in Brooklyn, NY A.D. in Vass, NC B.J.L. in Ann Arbor, MI T.M. in New York City, NY C.W. in San Francisco, CA R.M. in Concord, NH M.Z. in Sharon, MA T.K. in Half Moon Bay, St. Kitts C.W. in Atlantic Beach, FL J.L. in J.L in Conway, MA M.K. in Seattle, WA

R.B. in Amherst, MA M.J. in Oakdale, MN C.B. in Lakeville, MN M.C. in Falls Church, VA J.H. in Flint, MI M.L. in Lakewood, CO G.M. in Gaithersburg, MD M.K. in Long Branch R.C. in Eagleville, PA R.S. in Milan, OH J.N. in Zionsville, IN R.P.E.H. in London, England, UK D.D. in Highland Park, IL J.D. in Jamaica Plain, MA B.D. in Chicago, IL E.P. in Tillson, NY J.C. in Keene, NH A.A. in Branchport, NY J.S. in Jacksonville, FL K.J. in Paw Paw, MI M.M. in Dunellen, NJ M.T. in Simpsonville, SC D.L. in Springfield, IL J.M. in Eagle Mills, NY J.C. in Johns Creek, GA

The 50th correct response was received at 5:35 a.m. PT on Friday.

As to this week's theme, it relies on a single word in each headline, and is in the Trivial Pursuit category "language." It's near impossible, we think, without a monster hint, so we will ask: You know what the words 'car,' 'flee,' and 'file' have in common? Add a 'T' to the end, and you have a new word. And you know what the words 'hat,' 'old,' and 'art' have in common? Add a 'C' to the beginning, and you have a new word. Of course, even with that assist, you still have to figure out which letter, which headline words, and beginning or end.

If you have a guess, send it to comments@electoral-vote.com with subject "May 16 headlines." (Z)

This Week in Schadenfreude: Consistency Is Not a Quality that Kid Rock Possesses, Apparently

Kid Rock is a world-class jerk, and has been for years and years. (Z) saw him in concert close to 30 years ago—he was the opening act for the band that (Z) was actually there to see—and he came off as a prima donna. That kind of behavior might be tolerated from the headliner, but from the opener? Not so much.

Yesterday, the musician's inner jerk was on full display, as it so often is. He appeared on the show of Fox entertainer Jesse Watters, ostensibly to criticize Bruce Springsteen (i.e., a musician with actual talent, who has not based his entire career on just two hit songs). And somehow, Rock got on the subject of America's declining population growth, sharing his view that the problem is that nobody wants to sleep with "ugly ass, broke, crazy, deranged, TDS liberal women." He followed that sexist remark (joke?) up with more than a dollop of homophobia, adding: "I mean, you look at these rallies, it's like a bunch of women that no guy wants to sleep with and a bunch of dudes that want to sleep with each other."

That kind of boorish behavior makes the news out of Nashville all the more delicious. See, despite being from Michigan, Rock somehow thinks he's a Southerner. And so, he's opened a restaurant in that city called Kid Rock's Big Ass Honky Tonk Rock N' Roll Steakhouse. As any connoisseur of fine food knows, the more words there are in a restaurant's name, the better the cuisine is. Anyhow, the restaurant was grossly understaffed this weekend, particularly during prime time on Saturday night, and so took a beating on Yelp and other review sites.

Why was it understaffed? Well, that's where the schadenfreude comes in. Recall that Rock is an outspoken Trump supporter. He's visited the Oval Office, multiple times. He performed at the Republican National Convention. And, consistent with being a MAGA fanatic, he has savaged undocumented immigrants on numerous occasions—one time, for example, describing them as "murderers" and "rapists." Apparently, however, that does not extend to the undocumented immigrants who work at his restaurant, and who had to be sent home this weekend, because of rumored ICE raids.

In short: What a damn hypocrite. (Z)

This Week in Freudenfreude: You Want Malicious Compliance? We Got Malicious Compliance

Last week, we had an item on malicious compliance—specifically, how teachers might respond to the Louisiana law that now requires the Ten Commandments to be posted in classrooms. That item got a very positive response, so now we've got another very similar sort of story.

The state of Utah, of course, is run by people who are very conservative, particularly on social issues. However, the capital, Salt Lake City, is far more liberal. Indeed, it's sort of the textbook example of "a dot of blue, among a sea of red." The city has not had a Republican mayor, in fact, in the past half century.

A little over a month ago, the Utah legislature adopted HB 77. The bill prohibits the display of most flags on the grounds of government buildings and/or schools. The only flags allowed are the U.S. flag, the Utah state flag, military flags, Olympic flags, college/university flags, and flags of local cities. The new rules were meant, in particular, to target pride flags.

Prior to HB 77, Salt Lake City had one city flag. It is called the Sego Lily Flag, and it looks like this:

But now those pinko commies have FOUR flags (two of them literally pink). The first new variant, per the mayor's office, is "The Sego Belonging Flag, representing the City's LGBTQIA residents and broader acceptance of this community":

The second new variant is "The Sego Visibility Flag, representing the City's transgender residents and a commitment to seeing and celebrating their lives":

And the third new variant is "The Sego Celebration Flag, representing the history of Juneteenth and the City's Black and African American residents":

If you would like to read the press release from the mayor's office, it is here. They also have it in Spanish, in case you are an employee of Kid Rock's Big Ass Honky Tonk Rock N' Roll Steakhouse.

The new city flags are clearly in line with the new state law. That is to say, the sego lily is well-established as a symbol of Salt Lake City, and cities in Utah have the right and the privilege of designing their own flag or flags. There are other municipalities in Utah that have multiple flags, including flags used to commemorate particular occasions.

Clearly, this is not what the Utah legislature had in mind. But perhaps, if they had taken 2 seconds to think about it, they might have realized that efforts to police people's thoughts rarely work out well.

Have a good weekend, all! (Z)

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