Muslim female genital mutilation beyond the power of Congress to regulate, judge says (Constitution news round-up)
Commerce Clause: Muslim female genital mutilation is local criminal activity beyond the reach of Congress to regulate, judge says in expansive ruling knocking down federal FGM statute
Appointments Clause: Supreme Court is asked to rule whether acting Attorney General appointment is lawful
5A Due Process: federal judge issues temporary order blocking implementation of Trump asylum rules steering asylum claimants to ports of entry
5A Fundamental Rights: After Supreme Court rebuke, trial judge puts Climate Kid’s lawsuit on hold to allow government to appeal to 9th Circuit
Discrimination: Trump administration asks Supreme Court for expedited review of its new policy excluding most transgender people from military service; policy currently blocked by 3 lower court orders
5A Due Process: in America, we have the right to cross-examine witnesses, confront our accusers in court, and the presumption of innocence. New campus sexual assault rules should not be controversial.
14A Fundamental Rights: 19 states ask Supreme Court to overturn appeals court, uphold Indiana’s ban on Down Syndrome abortion
1A: Baby parts sting video maker asks Supreme Court to terminate Planned Parenthood’s intimidation lawsuit designed to stifle First Amendment rights (SLAPP suit)
10A Commandeering: Oregon sues Trump administration for withholding federal grants for state’s refusal to cooperate on immigration matters
Art 1, Sec 2: Defeated Congressman challenges Maine’s ranked-choice voting law
2A: NRA sues Washington State after gun control referendum passes banning sale of semi-autos under age 21, requiring handgun purchasers to allow searches of their medical records, etc.
2A: courts uphold Colorado’s large-capacity magazine ban (again)
State Constitution: Kentucky Supreme Court upholds state’s right-to-work law
Shame! St. Louis County’s Parkway School District fires teacher for thanking students for standing and reciting the Pledge of Allegiance
Shame on Brooklyn federal district court judge LaShann DeArcy! She demoralized new Americans in citizenship ceremony by telling them to ‘take a knee’. They freely chose America. You couldn’t be any more disrespectful of their choice.
At first glance, it seems outlandish that a federal judge would order President Trump to return Jim Acosta’s press pass. Surely, there can’t be a constitutional right to attend White House press conferences, can there? But the judge’s order becomes much more understandable when you dig into it a little.
No opinion, order, or transcript is publicly available at this time [1:18-cv-02610-TJK CABLE NEWS NETWORK, INC. et al v. TRUMP et al, U.S. District Court for the District of Columbia], so we start, as always, with the text of the U.S. Constitution. The First Amendment protects, among other things, freedom of the press. The Fifth Amendment provides that no one shall be deprived of life, liberty, or property without due process of law.
The heart of the matter is that Jim Acosta of CNN, once granted a White House press pass, has a liberty interest in that pass that is protected by due process. He cannot be deprived of his pass without first being afforded due process of law. This is the basis of the judge’s order. Due process, among other things, means notice and an opportunity to be heard. The White House pulled Jim Acosta’s press pass without giving him notice or an opportunity to be heard before the revocation. The judge recited these facts, as well as the fact that the government’s lawyer could not say who actually ordered the revocation, making the process indeterminable.
The judge relied on a 1977 federal appeals court decision involving Robert Sherrill of The Nation magazine. Sherrill was denied access to the White House, the Secret Service said, because he had a couple of assaults in his background – one while on the job. He had punched the Florida Governor’s press secretary while on a campaign train. What a rude, terrible person but, still, the court in that case upheld his First and Fifth Amendment rights. The court concluded “that notice, opportunity to rebut, and a written decision are required because the denial of a pass potentially infringes upon First Amendment guarantees.”
Judge Timothy Kelly, a Trump appointee, said, while he may not agree with the 1977 precedent, he felt duty-bound to follow it in Jim Acosta’s case. A couple of other factors weighed in the judge’s decision. Judge Kelly found that CNN would likely prevail on the merits. He also expressed his skepticism about White House claims that it had pulled the pass due to Acosta’s bad behavior at a recent press conference. CNN argued that the pass was pulled, not because of Acosta’s behavior, but because of his prior reporting that was unfavorable to the President. This raises the possibility that the White House was actually acting against Acosta because of the content of his viewpoint, a big free speech no-no. The judge also rejected the administration’s argument that CNN has plenty of other reporters covering the White House. As the judge put it, "That CNN may send another journalist to the White House does not make the harm to Mr. Acosta any less irreparable."
After the judge’s ruling, the White House indicated it would draw up some rules regarding decorum at White House press briefings. The judge’s ruling was on CNN’s application for a temporary restraining order and the White House has not indicated whether it wants to continue with the litigation. The judge left open the possibility that the White House could still revoke Jim Acosta’s pass if it first affords him due process. The judge also seemed to suggest that President Trump would be within his rights never to call on Jim Acosta again.
For the life of me, I can’t understand why the White House continues to hold press conferences for the hostile fake news media. Why not just send everybody press releases and maybe answer some questions by email? If due process vests because the government creates a forum, then why not do away with the forum?
9th Circuit upholds national injunction against Trump administration effort to end DACA (Constitution news round-up)
Separation of Powers: 9th Circuit upholds national injunction against Trump administration effort to end DACA program; Supreme Court expected to take up DACA issue
5A Due Process: Trump administration suspends asylum claims not made at ports of entry
Appointments Clause: Supreme Court said in 1898 Eaton case that temporary appointment does not transform individual into a principal officer requiring Congressional approval (Acting AG controversy)
1A Free Press: Jim Acosta and CNN assert constitutional right to a White House press pass in suit against Trump; Acosta can still apply for daily pass
Voting Rights: federal judges throw out Maryland electoral map as political gerrymandering hurting GOP; sets deadline for new map or creation of commission
Free Expression: European Parliament moves to ban ‘hate’ speech across entire EU, calls for special police to prosecute and jail critics of radical Islam, gay agenda, open borders, transgenderism, etc.
1A: federal judge rules Wisconsin high school’s ban on pro-gun T-shirts likely unconstitutional
2A: 1st Circuit aligns with California on eviscerating right to carry guns outside the home
2A: lawsuit challenges New Jersey’s ban on distribution of 3-D gun printing instructions
2A: “98% of the mass public shootings in the United States since 1950 have occurred in places where guns are banned”
2A: Washington State voters approve age restrictions, other curbs on gun purchases
2A: fantastical bogus statistic going around after Thousand Oaks shooting – ‘307 mass shootings this year alone.’ Sure. Debunked by left-wing Washington Post
8A: Supreme Court is asked to rule on Arizona provision categorically denying bail to persons accused of violent sexual offenses
State Constitutions: New Hampshire (‘Live Free or Die’ state) amends constitution to protect “right to live free from governmental intrusion in private or personal information" – whatever that means
President Trump caused quite a stir late last month when he announced his intent to sign an executive order ending birthright citizenship for U.S.-born children of noncitizens. Both sides of this debate cite legislative history and Supreme Court cases in support of their positions. Tonight, I’ll try to cut through the fog and lay out the issues clearly for you.
We start with the pertinent words of the 14th Amendment: “All persons born ... in the United States, and subject to the jurisdiction thereof, are citizens of the United States....” The immediate purpose of this provision was to reverse Dred Scott and make it clear that freed slaves and their children were in fact U.S. citizens.
But what do the words “subject to the jurisdiction thereof” mean? Proponents of birthright citizenship for the children of illegal aliens say it simply means that a person is legally required to obey U.S. laws and can be punished if they break those laws. This seems to me to read “subject to the jurisdiction thereof” right out of the Constitution. Of course anyone, except maybe diplomats, can be given a speeding ticket. I don’t see how that should confer citizenship.
It seems to me that the critics of birthright citizenship have the better argument – that “subject to the jurisdiction thereof” means that the person owes their political allegiance to the United States. Diplomats, as well as students and others here on temporary visas, do not owe their political allegiance to the United States. If they happen to give birth while here, their children do not owe political allegiance to the United States, either, and thus are not ‘subject to the jurisdiction of the United States’ as those words are arguably properly read. It is not controversial that diplomats’ children born in the United States are not citizens of this country.
Proponents of birthright citizenship point to statements made during the congressional debates on the 14th Amendment by Pennsylvania Senator Edgar Cowan who opposed the Amendment because, as he understood it, the amendment would give U.S.-born children of Chinese laborers and other noncitizens citizenship even though they did not owe allegiance to the United States. On the other hand, Senator Lyman Trumbull of Illinois expressly said that ‘subject to the jurisdiction of the United States’ included not owing political allegiance to another country. No wonder Justice Clarence Thomas doesn’t like legislative history and says cases should be decided by what is enacted rather than by what is intended.
This brings us to the dueling Supreme Court cases, none of which really decide the issue. This is because the issue of birthright citizenship for U.S.-born children of aliens not legally resident in the United States has never been squarely presented or squarely decided by the Supreme Court. All the cases involve some other fact pattern making the loose statements about birthright citizenship in those cases what lawyers call dicta – extraneous verbiage that does not have the force of law.
Proponents of birthright citizenship point to United States v. Wong Kim Ark, an 1898 case which made broad statements about “birth within the territory” but only decided that the children of lawfully resident immigrants are U.S. citizens. Proponents also cite Plyler v. Doe from 1982 which gave the children of illegal aliens the right to a public education, but the Court did this because the Equal Protection Clause of the 14th Amendment applies to all ‘persons’ in the U.S., not just citizens.
On the other side of the ledger, critics of birthright citizenship cite the 1873 Slaughter-house Cases in which the Court wrote that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of … citizens or subjects of foreign States born within the United States.” In 1884, the Supreme Court in Elk v. Wilkins denied the birthright citizenship of American Indians, saying being born in the territory of the United States was not enough to confer citizenship and that American Indians were not ‘subject to the jurisdiction of the United States’. This ruling was later changed by statute. There are other cases, but you get the idea.
Critics of birthright citizenship say the doctrine was cooked up by the State Department not all that long ago, and that what the executive branch has done can be undone by executive order. President Trump just recently reiterated his intent to sign an order ending birthright citizenship and said the issue would probably end up in the Supreme Court.
Estimates vary, but there are at least 4 million children of illegal aliens who have received birthright citizenship. The trend in other Western countries is away from birthright citizenship while, in our country, birth tourism has become an industry, with birthing centers for Russian and Chinese women making headlines.
My personal preference would be for Congress to settle the matter by passing a law. Article 1, Section 8 of the U.S. Constitution gives Congress the power to establish a uniform rule of naturalization, to say who and who does not get to be a citizen. Congress should step up to the plate, fulfill its constitutional duty, and settle the issue of birthright citizenship. The last stop in that process would probably be the Supreme Court, but at least the duly elected representatives of the people would have spoken.
5A Due Process: Caravan migrants sue Trump, claim he can’t shut down asylum process (statute arguably says he can)
5A Fundamental Rights: Supreme Court refuses to stop climate kids case, refers government to 9th Circuit for relief
Emoluments: federal judge green-lights emoluments case against Trump, opening door for critics to get his financial records
1A Religion: Supreme Court takes 40-foot war memorial cross case
Age Discrimination: Supreme Court unanimously rules age discrimination statute applies to state and local government units, no matter how small
14A Fundamental Rights: Anti-abortion amendments pass in Alabama and West Virginia; would criminalize abortions there if Supreme Court overturns Roe and returns autonomy on abortion to the states
2A: free speech claims may go forward against New York for pressuring banks and insurance companies not to deal with the NRA, federal judge rules
1A Compelled Speech: professor sues school that punished him for refusing to use transgender’s pronoun of choice
1A: federal court denies preliminary injunction against allegedly defamatory political campaign ad
1A: Massachusetts ballot question attempts to overturn Citizens United by establishing commission to propose amendments to cut corporate, union, and non-profit political spending
2A: Supreme Court again turns away challenge to California’s ban on carrying handguns in public
Equal Protection: “Jewish Trump Supporters Denied Service at NYC Restaurants” (issue of political bias in public accommodations is begging to get litigated)
14A Fundamental Rights: ordering invasive medical exams without parental notice or consent, after removing children from home on suspicion of child abuse, is unconstitutional (9th Circuit)
Rule of Law: lawlessness begets lawlessness; sanctuary cities beget caravans, violent protests beget wider intimidation, etc. (Victor Davis Hanson)
Kudos to Missouri store for creating giant sculpture of the U.S. Constitution to educate the public on the importance of having a document that sets our basic ground rules