Dem
47
GOP
53
The Trump administration always keeps the courts jumpin'. Here's another roundup of the week's legal news:
Birthright Citizenship XO, Part Deux: One thing you can say about Donald Trump (in fact, we just said it in the previous piece) is that he doesn't give up easily. This is especially with Stephen Miller breathing down his neck to go after those damn fer'ners. Never mind that the Supreme Court was clear that the Fourteenth Amendment means what it says: Anyone born in the U.S. is a U.S. citizen, regardless of the nationality of the child's parents. The only exceptions are children of diplomats and children born in areas temporarily outside U.S. control, such as (a thus-far hypothetical) wartime enemy occupation. Trump's latest XO attempts to expand these exceptions by fiat to apply to children born in the U.S. to embassy employees (not just diplomats) and children of anyone he declares has ties to groups designated as a foreign terrorist organization. He also wants to deny citizenship to children born to parents who committed "fraud" to give birth in the U.S., or who engaged a U.S. surrogate.
Our Take: Miller's obsession with this subject is pathological, and would be pathetic if it weren't so dangerous. This latest version won't stand up to scrutiny any better than the first. U.S. citizenship doesn't depend on the parents. As Georgetown University law professor Steve Vladeck explains, it depends on America's sovereign authority over the child when they're born. Children of embassy employees are subject to U.S. laws and are, therefore, U.S. citizens, if born on U.S. soil. The same goes for children whose parents have ties to terrorist organizations or children whose parents lied to get into the country. Assuming for a moment that any of this is good policy and that it won't be used to target people from "sh**hole" countries, the whole point of the Fourteenth Amendment is to not punish children for their parents' shortcomings or heritage. If they're born here and subject to U.S. laws, they're citizens, full stop.
Harvard 1, Trump 0: Another day, another loss in court for Trump. This one is courtesy of U.S. District Judge Richard G. Stearns in Massachusetts, who dismissed Trump's lawsuit against Harvard for allegedly violating Title VI of the Civil Rights Act by not cracking down on pro-Palestinian and anti-Israel protests. Trump used the suit to try to deny federal grants to Harvard, but Stearns said the law can't be used to penalize a university. He also found that there was no evidence of "institutionalized noncompliance to support the claim."
Our Take: The Trump administration has filed several lawsuits against Harvard, all of which are going badly for the government. At some point, Trump should be declared a vexatious litigant for all these frivolous suits that are clearly designed to harass and intimidate universities and law firms and any other group that he believes threatens his hold on power. At the same time, much as his DoJ is being embarrassed in court, his losses also make him look foolish and stupid. Samuel Bagenstos, a University of Michigan law professor, remarked "at some point, the folks in the Trump administration will surely realize that they look as ridiculous as Wile E. Coyote trying to catch the Road Runner." While he's right about them looking ridiculous, don't bet on them having the self-awareness to figure that out.
Oathkeepers Are in the Clear...: Several far-right Oathkeepers' members, including Stewart Rhodes, were convicted in 2023 of seditious conspiracy and plotting violent acts to overturn the 2020 election results and prevent the peaceful transfer of power. Trump's corrupt DoJ moved to vacate those convictions and the judge overseeing those cases, U.S. District Judge Amit Mehta, granted that motion, but not without first expressing his disgust at this perversion of justice. The judge wrote, "Today's epilogue diminishes the gravity of that day, denigrates the work of the prosecutors and law enforcement officers who secured these convictions, and excuses criminal acts that caused a centuries-long pillar of our democracy—the peaceful transfer of presidential power—to buckle. The court cannot write a different ending."
Our Take: This is a really tough time to be a U.S. district judge. Mehta had no authority other than to grant the DoJ's request, and he did his job, but he let us know how wrong this is. He wasn't about to let Trump try to rewrite history without using his pen to set the record straight about the horrific crimes the January 6 defendants committed. The DoJ can vacate the convictions but they can't change what actually occurred on that day.
...And So Are the Nevada Fake Electors: Yesterday, Nevada Judge Mary Kay Holthus agreed to dismiss charges against the six Nevadans who tried to cast fake electoral votes for Donald Trump after the 2020 election. Her reasoning was that the six were engaging in a form of political protest, and did not get to the point of actually trying to pass off the fake electoral votes as the genuine article.
Our Take: This means that while there are still some potential appeals and/or re-filings, there are no fake electors cases currently in process, and there has been virtually no punishment. One wonders how much a person has to do to try to fraudulently overturn an election result before they've actually committed a crime.
Nothing but Contempt for DHS: While we're on the subject of perverting justice, a federal judge in Los Angeles held DHS in contempt for violating her order to hand over images from agents' personal cellphones used in immigration raids last year. In January, U.S. District Judge Maame Ewusi-Mensah Frimpong had ordered DHS to turn over digital images of communications from the cellphones of 800 immigration agents. Evidence showed that agents were using their personal phones during raids and using racial slurs to describe people being detained. The judge ordered DHS to pay a daily fine of $500 and to pay the plaintiffs' legal fees until the phones are produced.
Our Take: DHS has already paid $3,500 in fines and will no doubt have to pay more. We'll see if they suddenly find the time to process images from the agents' phones, but the evidence must be pretty damaging and they are clearly very reluctant to release it. This case, as readers will recall, resulted in the infamous "Kavanaugh stops," when the Supreme Court overturned Frimpong's preliminary injunction prohibiting stops based on race, accent and place of employment.
Mail-in Voting Remains Safe for Now: The judge overseeing the lawsuit against the Trump XO that limits mail-in voting to those listed on an error-ridden and incomplete federal database has expanded her earlier injunction to apply nationwide. U.S. District Judge Indira Talwani in Boston had enjoined the XO in June, but only applied it to the 23 states that had brought the suit. The order now blocks the USPS from complying with Trump's XO in every state. In her ruling, the judge noted that the administration has not defended the constitutionality of the order, or claimed that the injunction will jeopardize the integrity of mail-in voting.
Our Take: This is an important addendum to the earlier injunction as the Supreme Court weighs Trump's request for an emergency stay of Talwani's order. If Trump is really not arguing that the XO is constitutional, as Talwani contends, and doesn't claim that the injunction will cause irreparable harm, it's hard to see on what grounds the Court could grant his request. That said, if they do, it wouldn't be the first time SCOTUS has drawn blood from a stone.
More next week. There's always more next week. (L & Z)