In your post script about the in rem context, are you implying that there is such a thing as "in rem injunctions" and that they can operate on non-parties? If so, I'd be very interested on your thoughts on this Fifth Circuit case involving a personal jurisdiction challenge to a receivership bar order: https://law.justia.com/cases/federal/appellate-courts/ca5/23-10726/23-10726-2024-08-09.html
Regarding the second paragraph of the first section, where you assume for the sake of argument that the government has a strong position, you say that this is still not the way to do it. You say they need to get an OLC opinion and do a bunch of analysis, and not "executive orders that lack the force of law".
Why does all this matter as a constitutional matter? If we assume the act itself (revocation of citizenship of the children of illegal immigrants) is constitutional, why does it matter if the OLC okayed it first? I agree that these things *should* be done, but why do they *need* to be done, according to the constitution? If the president cannot enact this through executive order, what is the correct executive branch office to do so, and why are they in a position to do so when the president himself cannot?
I am not a lawyer, just an unusually informed layman, so forgive me if these are naive or ignorant questions.
OLC opinions bind the Executive Branch. I believe there is still an OLC opinion on the books that Birthright Citizenship is guaranteed by the Citizenship Clause and Congress cannot through its power over naturalization to exempt the children by noncitizens unlawfully in the United States (Congress considered this in the 1990s and the OLC released this). Although the Court is free to disagree with OLC opinions, it gives deference or strong consideration to them often. They show that the DOJ has thought about an issue and issued a uniform policy throughout the Executive Branch. It gives credibility to the DOJ’s position at the Court. It also shows the historian practice the Executive Branch has followed and provides way for the President to change such a fundamental policy position across agencies. An EO implemented like this sort of reeks of lawlessness (on top of the lawlessness of its otherwise unconstitutionality).
In your post script about the in rem context, are you implying that there is such a thing as "in rem injunctions" and that they can operate on non-parties? If so, I'd be very interested on your thoughts on this Fifth Circuit case involving a personal jurisdiction challenge to a receivership bar order: https://law.justia.com/cases/federal/appellate-courts/ca5/23-10726/23-10726-2024-08-09.html
Regarding the second paragraph of the first section, where you assume for the sake of argument that the government has a strong position, you say that this is still not the way to do it. You say they need to get an OLC opinion and do a bunch of analysis, and not "executive orders that lack the force of law".
Why does all this matter as a constitutional matter? If we assume the act itself (revocation of citizenship of the children of illegal immigrants) is constitutional, why does it matter if the OLC okayed it first? I agree that these things *should* be done, but why do they *need* to be done, according to the constitution? If the president cannot enact this through executive order, what is the correct executive branch office to do so, and why are they in a position to do so when the president himself cannot?
I am not a lawyer, just an unusually informed layman, so forgive me if these are naive or ignorant questions.
OLC opinions bind the Executive Branch. I believe there is still an OLC opinion on the books that Birthright Citizenship is guaranteed by the Citizenship Clause and Congress cannot through its power over naturalization to exempt the children by noncitizens unlawfully in the United States (Congress considered this in the 1990s and the OLC released this). Although the Court is free to disagree with OLC opinions, it gives deference or strong consideration to them often. They show that the DOJ has thought about an issue and issued a uniform policy throughout the Executive Branch. It gives credibility to the DOJ’s position at the Court. It also shows the historian practice the Executive Branch has followed and provides way for the President to change such a fundamental policy position across agencies. An EO implemented like this sort of reeks of lawlessness (on top of the lawlessness of its otherwise unconstitutionality).