(Yet Another) New Episode: Weird Islands
Trump v. Barbara
If there are four episodes in a week, it must be because it’s the end of term rush. You can now also listen to Weird Islands:
It’s the last opinion day of the term, and the big one landed: Trump v. Barbara, the birthright-citizenship case. We read the majority as the rare easy case and spend most of the episode on why the four dissents each end up somewhere different — and trying to figure out exactly where they actually land. Along the way: a bogus Nina Totenberg story, a Landor GVR that might quietly unsettle a chunk of Spending Clause criminal law, and whether the professors who defended the order deserve the “legal scholarship police.”
Don’t worry, the pace should slow down soon (but not stop) as we get into the Dog Days.
This late June flurry of cases got me wondering "who does the Supreme Court ultimately serve" - the people of the US, lawyers, themselves, academics, no one? Whoever they serve, did we really need 190+ pages of opinions on this case? "More" is not always helpful or clarifying.
Since the dissents thought the 14th amendment didn't convey birthright citizenship in certain cases, it was unclear why the President would get to define the exceptions in an EO. Wouldn't it fall to Congress to pass a law to codify the exceptions the President wanted?
Lastly, and maybe I'm reading too much into this, but it seemed a little weird that the dissenters, who seem very committed to text, are reading in a bunch of text about parents and domicile that are not in the amendment. They also read "tariffs" into the law in the tariff EO Court struck down. Since the dissenters are often striking down other laws or precedent or limiting rights that they claim are not clear enough, why are they so willing to be "text generous" in a case like this or tariffs?
Did I miss something? Even if the dissent’s reading of the 14th Amendment is correct, why is this something that can be achieved through an executive order rather than requiring congressional action?