Christine Flowers: It could have been worse
It could have been worse, I suppose.
The high court could have crossed that bridge too far and dismantled a bedrock principle of constitutional jurisprudence, birthright citizenship. I have a suspicion Justices Alito and Thomas would have been all in on that. Perhaps Justice Barrett was given the right to pen a majority decision because she writes with a quill and not a fire extinguisher, attempting to find reason in the unreasonable. And after reading her opinion, with which I actually agree in practice if not in its impact, I think she makes a good case for judicial restraint.
I just find it ironic and hypocritical that the court is only now realizing that lower courts can exceed their proper roles, when they had a hard time figuring it out during President Biden’s administration, and even during the first Trump administration.
But I’m getting ahead of myself. Last week in Trump v. CASA, a six-justice majority held that the lower courts had erred in blocking implementation of the president’s Executive Order 14160 which limited birthright citizenship. The EO held that the children of undocumented parents are not citizens, pretending to implement the legislative intent of Congress when passing the Fourteenth Amendment. Of course, a president cannot change the Constitution with a swipe of his pen, even a gold one engraved with MAGA (“Make Americans Guess Again” if they’re actually Americans.)
Plaintiffs sued, and a number of lower courts stayed the effect of the EO, banning its implementation as a violation of the Fourteenth Amendment. The administration sued, and the Supremes held that lower courts from specific federal districts cannot issue injunctions that have a “universal” impact.
Justice Barrett, who writes as a scholar and not an activist, stated that “[t]he universal injunction was conspicuously nonexistent for most of our Nation’s history. Its absence from 18th- and 19th-century equity practice settles the question of judicial authority”
In other words, it’s not part of a respected legal tradition to allow a federal judge in one very conservative district in, say, Texas, to issue an order that will impact people in, say, liberal New York where they just picked a Hamas sympathizer in the Democratic primary for mayor.
To which I say, I completely agree. To which I also say, where were you when the court sat quietly while a federal judge in one very conservative district in Texas demolished DACA? Where were you when a similarly right-wing jurist blocked Biden’s Executive Order permitting undocumented aliens married to US citizens to marry and obtain status in the US?
If the judges in today’s case were acting ultra vires and without authority, so were the conservatives who imposed their narrow view of presidential authority on the rest of the country. To disagree is to acquiesce in legal hypocrisy for the sake of partisan profit.
I still hold out hope that the court will ultimately determine that any attack on birthright citizenship is an attack against our constitutional integrity. If and when they get to the merits of the issue, I hope they have the courage to shut President Stephen Miller and his hatred of immigrants, both legal and illegal, down.
Until then, I will be smirking at anyone who dares say that President Obama exceeded his authority in issuing all of those Executive Orders.
Christine Flowers is an attorney and lifelong Philadelphian. @flowerlady61
