"An Existential Threat to the Rule of Law" (Some Notes on the Supreme Court and the War on Immigrants)

It's high summer in San Francisco and apricots, peaches, cherries, and corn are in season at the farmers markets and kids are out of school and Pride weekend is here, and on the days when the fog doesn't hang over us, the sunlight is glorious. Beautiful, pleasant, and positive things are unfolding as they have in previous years. And underneath and around and looming over everything is something not just new but unprecedented: the war from within waged with venom and recklessness by the Trumpists, the dismantling of the rule of the law, the attacks on our rights and protections, on public lands and nature, and the corruption of the parts of the federal government that aren't undermined or dismantled. 

A core attack is on the checks and balances and three branches of government we all learned (or were supposed to learn) about in school or to pass the US citizenship exam. With slim Republican majorities in both houses of Congress, the legislative branch is all eager to surrender its own powers, from the power of the purse to the power to declare war (and I'm like a lot of others in that I'd like to see far stronger public opposition from Democrats, whether or not they can win in Congress). The judicial branch is both wonderful and horrific in that judges across the nation have been a bulwark of opposition to the overreach and lawlessness of the administrative branch, but atop that branch is the Supreme Court whose supermajority is apparently hell-bent on removing obstacles to an imperial presidency and an authoritarian regime. Among those obstacles are the Constitution and the Bill of Rights.

 Friday the Supreme Court weakened protections for – well all of us but especially immigrants and children of immigrants, and weakened the role of the judiciary, to fortify the powers of the executive branch and specifically the powers of the goblin cabal we call the Trump Administration. I am not a legal expert, but I can read, and I feel compelled to speak and to share with readers here analyses of the sudden increase in lawlessness and danger that comes from the legal experts and the dissenting justices. 

Let legal expert and Nation columnist Elie Mystal unpack the atrocity committed in the court. He declares: "The legal upshot of the Supreme Court’s monumentally disastrous decision in Trump v. CASA (more commonly known as 'the birthright citizenship case') is chaos. Utter legal chaos. In its ruling on Friday, the court’s usual six monarchists granted Donald Trump’s request to reexamine various nationwide injunctions preventing Trump and Stephen Miller from implementing their plans to revoke birthright citizenship to any American who doesn’t happen to be white. With the legal sleight of hand so beloved by the Roberts Court, the ruling doesn’t actually allow Trump to end birthright citizenship. It just makes it incredibly difficult for courts to stop him from ending birthright citizenship. It’s a distinction, one that lawyers will try to exploit for an entire rearguard action to defend citizenship in this country, but one that’s unlikely to make much of a difference if you happen to be born on the Republican side of the tracks. Once you read the fine print, it becomes clear that this decision is a historic, five-alarm catastrophe." 

Mystal goes on "Every person has to individually ask for their constitutional rights. It’s everyone for themselves, according to the Supreme Court. Everybody needs to lawyer up. The decision means that some courts, districts, and states will still defend the concept of birthright citizenship, while others will not. That could mean that whether or not a child born in America on or after June 27, 2025, is considered a citizen of the United States will depend on what state, or even county, that child happens to be born in."

The decision is specifically an attack on the Fourteenth Amendment, which grants citizenship to all who are born here, the amendment was passed in the wake of the Civil War to, among other things, establish rights for the formerly enslaved and their children. I've long said that "Make America great again" translates as "make America 1958 again" except when it's 1858 instead and this ruling definitely stinks of the Confederacy and, to quote Orwell's Animal Farm, the idea that if all animals are equal, some "animals are more equal than others."

 Justice Sotomayor in her dissent addressed this, "Children born in the United States and subject to its laws are United States citizens. That has been the legal rule since the founding, and it was the English rule well before then. This Court once attempted to repudiate it, holding in Dred Scott v. Sandford, 19 How. 393 (1857), that the children of enslaved black Americans were not citizens. To remedy that grievous error, the States passed in 1866 and Congress ratified in 1868 the Fourteenth Amendment’s Citizenship Clause, which enshrined birthright citizenship in the Constitution. There it has remained, accepted and respected by Congress, by the Executive, and by this Court. Until today."

 Her language--that short sentence that is not a sentence, those two words ending her opening--makes it clear how grave the breach is. She goes on, "It is now the President who attempts, in an Executive Order (Order or Citizenship Order), to repudiate birthright citizenship. Every court to evaluate the Order has deemed it patently unconstitutional and, for that reason, has enjoined the Federal Government from enforcing it. Undeterred, the Government now asks this Court to grant emergency relief, insisting it will suffer irreparable harm unless it can deprive at least some children born in the United States of citizenship."

 Justice Jackson joined Justice Sotomayor and added this fierce sentence: "I agree with every word of Justice Sotomayor's dissent. I write separately to emphasize a key conceptual point: The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law."

 The first section of the Fourteenth Amendment reads, "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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." That seems pretty incontrovertible, but it's inconvenient to the Trump pogroms, so now it's been controverted. 

Speaking of the Confederacy, the third section has been cited as a reason why Donald J. Trump should have been ineligible for office after January 6, 2021: " No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." But someone would have had to enforce that, and whatever someones might have did not.

Slate's Mark Joseph Stern states of the previous day's Supreme Court ruling, the one that lets states deny Medicare coverage to people seeking treatment from Planned Parenthood: "In the process, the court hollowed out a landmark civil rights statute from 1871 that protects federal rights against state intrusion. The conservative supermajority’s ruling in Medina v. Planned Parenthood marks a sharp break from precedent, giving states broad new authority to nullify freedoms guaranteed by Congress." We all have fewer rights than we did a week ago.

If you haven't been following news on what ICE is doing, there are many individual horror stories--a six-year-old with leukemia grabbed, incarcerated, and denied treatment when his mother brought him and his sibling to immigration court, a pregnant woman was forced to deliver a dead baby after being denied care while in custody, nursing mothers were arrested and taken away from their babies, a woman born in Iran who's been in the US for 47 years and has no criminal record was seized by ICE while gardening in her home in suburban New Orleans, a US citizen who's Latino and a PhD candidate--and a US citizen-- at Claremont Graduate University was hauled away in a raid on a Home Depot in Hollywood. 

But as the L.A. Times piece on the last story notes, "Each roundup has inflicted very personal trauma to the people dragged into them, tearing families apart, inciting fear, taking away means to feed children and pay rent." Reports say that many families with immigrant and refugee members are afraid to leave their homes for any reason, which means in too many cases they can no longer work and are in financial freefall. That is, they are being terrorized and punished even if they have not been arrested, so we must recognize an impact far broader than that of the tens of thousands now in ICE gulags here or abroad. Brandon Tauszik at Mother Jones reports on the protests and conflicts in Los Angeles and then notes, "But that framing—of conflagration and resistance—misses the more pervasive reality: the daily fear of simply living in LA under a constant threat from ICE. For many, it means sheltering in place—avoiding work, social life, or even a walk outside. What isn’t a risk under this administration?"

All this begs one obvious question: what do we do? I wish there was an easy and obvious answer. One thing that's clear is that it's up to us, to civil society, to the power of noncooperation, resistance, organizing, and advocacy above and beyond what government officials can do. Those officials who still adhere to the rule of law simply don't have enough power and impact to counter this coup from within. What successful opposition can and should look like--well, if we knew exactly what to do they'd know exactly how to stop us. 

We do know what has worked in other times and places to counter authoritarian regimes and reinstate democracy--and we've seen it work as recently as last year when South Korean citizens and parliamentarians resisted a coup attempt by a right-wing president and promptly (and enviably) impeached him and may decide to incarcerate or even execute him. Also last summer, the July Revolution, a largely nonviolent movement led by Bangladeshi students drove out the authoritarian leader of that country and instated an interim government. The US is not Bangladesh or South Korea; we're a huge, dispersed, divided nation where complacency settled in because of our almost 250 relatively stable years of government before the current crisis.

But I was heartened by the sheer size, distribution across all states and presence in many small communities, and the energy of the No Kings demonstrations earlier this month. And by the strong solidarity with immigrants and refugees that's been evident in many ways, along with the polls showing that the Trump regime and its measures, including the current attacks on immigrants are deeply unpopular (something obvious but maybe worth saying again is authoritarians have to be authoritarian because what they're doing is unpopular; the will of the people has to be suppressed for them to impose their agenda, and the Trump Administration is becoming increasingly unpopular with the public).

After a lifetime in a relatively predictable country, one governed by norms as well as laws set down in the Constitution and the Bill of Rights, all bets are off as to what will happen next, both with what the Trump junta does and what civil society does. We make the future in the present with how we show up or don't, and while that's always true, it's never been more urgently so.