IdeaLog
Will SCOTUS uphold the rule of law?
Posted on May 13, 2025
Right now, the federal judicial system is keeping our government from sliding into a dictatorship, but just barely. With six aggressively right-wing Justices, the Supreme Court will side with Trump as much as it can. But will they protect the fundamental rule of law?
Of those six Justices, John Roberts is the most likely to defend the law, with Clarence Thomas and Samuel Alito almost sure to side with authoritarianism. That leaves Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett as swing votes.
Because nearly everything Trump has done is illegal, there are hundreds of Trump cases in the federal court system. There would be thousands more cases if lawyers were confident that the courts will ultimately uphold federal law. Lawyers aren’t sure what the six right-wingers will do, but there are two cases that will tell us a lot.
(1) Birthright citizenship
Trump signed an executive order purporting to reverse birthright citizenship which is the 14th Amendment’s dictate that almost everyone born in the U.S. is automatically a citizen. This case has an oral argument before SCOTUS on May 15 which, technically, isn’t about the merits of Trump’s order. Rather, it’s about whether or when a federal district court can issue a nationwide injunction. And yet, it will be impossible to discuss nationwide injunctions without talking about the merits of the underlying case. And this is a case where Trump has no honest argument at all.
The 14th Amendment commands that:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
The Supreme Court already decided the meaning of “and subject to the jurisdiction thereof” in the 1898 case of United States v. Wong Kim Ark. For people born in the U.S. with foreign citizens as parents, they would only be not “subject to the jurisdiction thereof” if their parents were “employed in any diplomatic or official capacity under” a foreign government. This extremely narrow exception covers essentially the same people as those who have diplomatic immunity from prosecution in U.S. courts. Birthright citizenship was conclusively established 127 years ago and no court has ever disagreed with the Wong Kim Ark ruling.
Senior Judge John Coughenour, an appointee of Ronald Reagan, presiding over one of the cases now before the Supreme Court, said:
“I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is. This [Trump’s executive order] is a blatantly unconstitutional order.”
If the Supreme Court now sides with Trump against the 14th Amendment’s clear directive on birthright citizenship, then we should expect the worst from this Court. Such a ruling would telegraph that SCOTUS is in the bag for Trump, that we cannot expect the Court to defend the most obvious rule of law. We will be inches away from dictatorship.
(2) Alien Enemies Act
The Trump Administration is arresting Central Americans and flying them to a concentration camp in El Salvador on the pretext that such a thing is allowed by the Alien Enemies Act of 1798. The Act says:
Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.
So, the Alien Enemies Act can only be invoked if “there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government…” Obviously, there is no declared war and no “foreign nation or government” is threatening to invade the U.S.
Trump’s transparently absurd argument is that Venezuela controls a criminal gang, Tren de Aragua, which he says commits crimes in the U.S. Even if Venezuela controlled Tren de Aragua, that simply does not constitute an “invasion or predatory incursion” under the Alien Enemies Act. But, in addition to that, our country’s own intelligence agencies have determined that Venezuela does not control Tren de Aragua.
The Supreme Court already ruled on a small part of this case, ordering that detainees must be given due process rights. SCOTUS did not rule on the underlying issue—that the Alien Enemies Act simply does not apply. Three lower federal courts have ruled against Trump’s use of the Alien Enemies Act.
If SCOTUS ultimately agrees with Trump’s use of the Alien Enemies Act, it would be an endorsement of authoritarianism. It is a disgrace upon the Roberts-led Supreme Court that we don’t actually know what they will do.
A blitzkrieg of lawlessness
Posted on May 1, 2025
We are missing the forest for the trees. Nearly everything Trump and his administration have done is illegal, and that is the whole point. It is an all-out attack on the rule of law...
Push back on the media’s normalizing of Trump
Posted on April 16, 2025
The media has been normalizing Trump for the past decade. They do this, in part, by inventing semi-rational policy explanations for irrational proposals. We should push back. Here are three examples: Tariffs and other...
MAGA’s Musk mistake
Posted on April 2, 2025
Tuesday’s elections brought good news. MAGA candidates ran at least 10 points behind 2024 Trump votes and, perhaps best of all, Elon Musk dragged them all down. How should you use this in messaging?...
How to deal with a bully in the White House
Posted on March 18, 2025
Trump is doing horrible things. But, like any bully, much of his perceived power is based on threats that he doesn’t carry out. By reacting to every threat, no matter how absurd, Democrats are...
Trump is pushing us toward a Republican recession
Posted on March 5, 2025
“It seems almost unavoidable that we are headed for a deep, deep recession,” says Jesse Rothstein, former Chief Economist at the U.S. Department of Labor. Whether or not the situation is that bad, it’s time...
To respond to Trump, simplify your messages
Posted on February 18, 2025
There is too much going on and people are overwhelmed by it. If you want to have any impact at all, don’t try to answer everything. Group issues together and respond broadly. Keep in...
States and localities shouldn’t cooperate with ICE detainers
Posted on February 4, 2025
Right now, some Democrats are trying to “move to the right” on immigration. Some are supporting legislation to undo “sanctuary” policies that have blocked state or local law enforcement from cooperating with ICE detainers....
Lessons of the 2024 election, part three
Posted on January 21, 2025
The fundamental reason why our side lost in November is that a small but decisive percentage of Americans never heard our arguments – specifically, people who normally would support Democrats but rely on social...
Lessons of the 2024 election, part two
Posted on January 9, 2025
If we don’t understand the November election defeat, then we can’t know what to fix. Yet, our side does not understand. The Democrats’ two month blamefest has focused almost entirely on messaging. But the...