Supreme Court Defies Trump and Upholds Birthright Citizenship

0:00Monday AI agents took over my work. And I absolutely love it. Chasing deadlines, writing status reports, updating stakeholders. Agents handle the daily grind now. They live inside Monday.com. So they see the full picture. My work, my team, the whole company. And I don't have to worry about the data. It's safe, which means I'm free to focus on the big stuff. Knowing everything runs smoothly in the background. It's completely shifted the way we work. Create your own AI agent in minutes on Monday.com. Summer is here, which means we all want to look and feel our best. A GLP-1 may be right for you.

0:36Visit orderlymeds.com to learn more about which GLP-1 you could be eligible for. Getting started is fast, easy, and happens virtually through telemedicine from licensed professionals. Check it out for yourself. Go to orderlymeds.com slash podcast. That's orderlymeds.com slash podcast. Taking care of yourself feels great. Compounded medications are not FDA-approved. Eligibility required and determined by a licensed provider. Individual results may vary.

1:01Michael Popok:Have a seat, everybody. We got some breaking but some welcome news from the United States Supreme Court for a change. With an interesting 6-3 lineup, they have upheld birthright citizenship under the 14th Amendment, while at the same time, in an opinion written by Chief Justice Roberts, they go after and chastise and rebuke the dissent led by Clarence Thomas and Alito and Gorsuch. I love fireworks early in our America. And this opinion is going to now finally put to rest the attempts by Donald Trump to declare a baby, a human being born on U.S. soil, not to be an American. Let's unpack it here on Legal AF and the Midas Touch Network.

1:46Michael Popok:I'm Michael Popok. The issue is under the 14th Amendment, which came out during the Reconstruction period following our civil war. And in response to one of the most horrible decisions ever by the United States Supreme Court in the 1850s, a case we call Dred Scott, as soon as I hear Dred Scott, I get a chill down my spine even from law school till now, which declared effectively that black Americans who were newly freed slaves would not be given American citizenship and all of those rights. states in response and post Abraham Lincoln and with Abraham Lincoln, Reconstruction era amendments were passed.

2:26Michael Popok:First, a statute by Congress, which declared once and for all that all people born on U.S. soil were American citizens. That was followed by the 14th Amendment to put it into the Constitution, supported by a case from the early 1900s called Kim Wong Ark. Kim Wong Ark's family We should be celebrating now because it's that precedent, which and the common law. We're going to do a teachable moment here on the common law, which is the law that may not have been written down, but is part of the fabric of our rule of law and our democracy. That common law had always recognized, Chief Justice Roberts wrote, had always recognized that somebody born in the United States, someone born on U.S.

3:12Michael Popok:soil was a U.S. citizen. That opinion, let me give you the lineup. Roberts writes the opinion. Sotomayor, Kagan, Barrett, Jackson, and even Kavanaugh in the judgment, in the main ruling, joined together. That's the six. One, two, three, four, five, six. in dissent. Thomas, who Roberts ends up having a debate with, within the opinion, I'll read it to you, Gorsuch and Alito are okay with a president declaring who gets to be an American citizen or not. Now, let me unpack it for you in the case's reading itself. First, there's a focus on the common law. That is the law that pervades the society passed down from generation to generation, sometimes codified in statutes, but often just reflected in case law, in precedent.

4:12Michael Popok:Here's the Supreme Court reaffirming precedent. That's a shock. I mean, this new decision that just came out in the last hour or so. You know, it's a great decision. But earlier, like two minutes earlier, they just opened the floodgates of campaign money to go flooding into the system in time for the midterms, primarily on the Republican side. They ruled against transgender athletes. And of course, they gave us this one, right? They gave us the, oh, we're not going to take away your citizenship if you were bored here. Thanks. But let me give you the ending of this opinion, which shows you the battle going on between Alito, Thomas and Gorsuch, and Chief Justice Roberts in the majority.

4:57Michael Popok:Bottom of page 25, we'll post this up on Legal AF Substack for members to read for themselves. Again and again, Chief Justice Roberts writes for the majority, the dissents cast the common law as feudal, I mean feudal meaning back in the feudal days, medieval and a remnant of the darkness of the Middle Ages, citing to Gorsuch's opinion and Alito's opinion. This was not the view of the Reconstruction Congress, the Congress after the Civil War, says Roberts, where the dissents see feudalism, medieval, dark ages. The framers of the 14th Amendment, which is what we're dealing with here, saw emancipation, saw freeing of people, freeing of black former slaves and making them U.S.

5:52Michael Popok:citizens, consistent with the Emancipation Proclamation of Abraham Lincoln. By the time of the glorious revolution in 1688, going back now to our roots in England. In fact, the tie created by birth was less a duty than a right, the foundation of the ancient liberties of free born subjects. That's the common law. Goes back to like the Magna Carta. That is why Blackstone described the privileges owed to the natural born. Blackstone being a leading legal commentator that we even use even to today. Judge Roberts writes, Justice Roberts writes, that is why the colonists demanded the rights of Englishmen more than 250 years ago when they were in rebellion against the crown.

6:43Michael Popok:And that is why abolitionists seeking the abolition of slavery in America lauded or lauded the ancient and universal rule of citizenship by birth alone as an ordinance of heaven. It was the basis of emancipation. It was the basis of the abolitionist movement to see former slaves as human beings that had the divine right to be citizens of the state in which they were or the country in which they were born. Citizenship then and now, says Justice Roberts, was the right to have rights to freely participate in our political community. The framers of the 14th Amendment extended that promise to every free-born person in this land.

7:26Michael Popok:we keep that promise today. It's ironic that Roberts, who often takes away voting rights and the rights of empowerment from Black people primarily in his voting rights decisions, is so eloquent here about the rights of people born in the United States. Putting that irony aside, let me read to you from a couple of other parts of this. I'll tell you what didn't come up in the majority opinion. This whole debate about, oh, the 14th Amendment is only for slaves and newly freed slaves. It doesn't apply to everybody else, even though that's not what the constitutional provision provides. Remember when Donald Trump has always said, I think it's only about former slaves.

8:16Michael Popok:Play the clip. And some of the cases we're talking about would be ending birthright citizenship, which now comes to the fore, that was meant for the babies of slaves. It wasn't meant for people trying to scam the system and come into the country on a vacation. This was, in fact, it was the same date, the exact same date, the end of the Civil War. It was meant for the babies of slaves, and it's so clean and so obvious. But this lets us go there and finally win that case because hundreds of thousands of people are pouring into our country under birthright citizenship, and it wasn't meant for that reason.

8:51Michael Popok:Now, it's no surprise that Roberts would be the author of this piece. You know, when he wants to go after rights and take them away, he hands the pen to Sam Alito, the poison pen. But when he wants to be magnanimous and generous, he takes the pen for himself. That's another aspect of the Roberts court. Now, Roberts, during oral argument, and we played the oral argument live stream up on Legal AF YouTube, channel. You know, you could tell he was that they had they didn't have Roberts as a vote for the argument that Trump was making, which is, you know, you can't apply this 14th Amendment thing, you know, to anybody else.

9:35Michael Popok:It only applies to black people. Listen to Roberts during the oral argument. You mentioned in your briefing and also this morning the problem of birth tourism. Do you have any information about how common that is or how significant a problem it is? It's a great question. No one knows for sure. There's a March 9th letter from a number of members of Congress to DHS saying, do we have any information about this? The media reports indicate estimates could be over a million or 1.5 million from the People's Republic of China alone. The congressional report that we cite in our brief talks about certain hot spots like Russian elites coming to Miami through these tourism companies.

10:17And here's here's here's the facts about it. I think it's striking. Media reported as early as 2015 that based on Chinese media reports, there are 500, 500 birth tourism companies in the People's Republic of China. Who's business is to bring people here to give birth and return to to that nation. Having said all that, you do agree that that has no impact on the legal analysis before us? I think it's, I'd quote what Justice Scalia said in his Hamdan dissent, where they have, where like their interpretation has these implications that could not possibly have been approved by the 19th century framers of this amendment.

10:56I think that shows that they've made a mess, their interpretation has made a mess in the provision. Well, it certainly wasn't a problem in the 19th century. No, but of course, we're in a new world now, as Justice Alito pointed out to, where 8 billion people are one plane ride away from having a child who's a U.S. citizen. Well, it's a new world. It's the same Constitution. It is, and as Justice Scalia said, I think in the case that Justice Alito was referring to, you've got a constitutional provision that addresses certain evils, and it should be extended to reasonably comparable evils. He said that about statutory interpretation.

11:29I think the same principle applies here, and I think we quote that in our brief. Thank you.

11:33Michael Popok:Well, it's time for some life talk. Life insurance talk, that is. You probably have it, but do you know how much you're paying for it? And for how much are you being covered? Odds are you pay too much for too little. And did you know if you receive life insurance through your job and you're unexpectedly laid off, you could suddenly be covered for nothing? Scary to think about, but simple to get right. Thanks to SelectQuote, where I'm headed to sort out my life insurance policy today. Unlike other one-size-fits-all life insurance companies, SelectQuotes licensed agents work for you. In as little as 15 minutes, they'll compare policies from top-rated carriers to find you the best fit for your health and your budget.

12:16Michael Popok:And they work for you for free. Get the right life insurance for you for less. And save more than 50 % at SelectQuote.com slash LegalAF. Save more than 50 % on term life insurance at selectquote.com slash legal AF today to get started. That's selectquote.com slash legal AF. Now let me go back to the actual opinion. So it's a lot of emphasis on the common law, for sure. In particular, let me read to you as they get to this famous Dred Scott decision. They said that all of what we're analyzing now is a part of reaction to a terrible decision we call Dred Scott. On page seven, in the odious decision of Dred Scott versus Sanford, this court imposed the southern state's beliefs onto the nation.

13:17Michael Popok:Chief Justice Taney, writing for the court, concluded the words, people of the United States and citizens had an unexpressed racial component, one that excluded all those descended from slaves. Dred Scott was met with shock, says Justice Roberts, ever since the Declaration of Independence. The received general doctrine has been in conformity with the common law that all free persons born within a state are citizens of the United States. Being born under our Constitution and laws makes him a citizen. He goes over all of the common law, all of the divine history. Bottom of page seven, abolitionists swore to undo what the court had done.

14:01Michael Popok:By birth, Frederick Douglass, the great African-American philosopher and politician, said, we are American citizens. The Constitution knows all the human inhabitants of this country as the people, as in we the people. He explained no matter their color, class, or crime. All I ask of the American people, Douglas wrote, is that they live up to the Constitution, adopt its principles, imbibe its spirit, and enforce its provisions. The court has overruled the common law, but the people eventually would overrule the court. So in Dred Scott, there was a great outcry. There was new law and people went into Congress and then a constitutional amendment to fix it.

14:48Michael Popok:They say that the act first, the Civil Rights Act of 1866. Let's start there with our history lesson. Page eight over to nine of the opinion. A year after General Lee surrendered Appomattox, Congress sought to turn Bates' opinion into law. The result was the Civil Rights Act of 1866. The act declared that all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby citizens of the United States. And from there, they codified it in the 14th Amendment. And then when Donald Trump came along, the day he was sworn in and wrote an executive order which declared that people whose mothers or fathers are not here legally or are here temporarily, even if the baby is born on the soil, is not a U.S.

15:42Michael Popok:citizen, was met with derision, to say the least. There were six or eight different cases all around the United States, starting in Seattle, Washington, in New Jersey, in New Hampshire, in Massachusetts, in D.C. All, all, every judge to look at the issue said, of course, the 14th Amendment overcomes the executive order. He can't change the meaning and the terminology of the 14th Amendment by executive order. And every appellate court affirmed that. Hence, the United States Supreme Court now taking its final stand here. Now, let me turn quickly to Wong Kim Ark. It's a case from the early 1900s.

16:28Michael Popok:Wong Kim Ark was born in the United States to Chinese parents. Tremendous anti-Chinese sentiment during that period. Laws on the books against the Chinese. He left the country to go to China to visit family. When he came back in, he was stopped at the border and told he couldn't return. He said, I'm a U.S. citizen. They said, well, your parents are Chinese, and they still follow the leadership of the emperor of China. He took that case all the way to the United States Supreme Court, and they ruled. And it's been affirmed now, this 120-year-old president, finally been affirmed by the Supreme Court, that it doesn't matter who your parents are.

17:08Michael Popok:Doesn't matter what their status is, legal or illegal, temporary or permanent. You're born here. You have the rights under the common law dating back to England to be considered and to be and imbued with the rights of a U.S. citizen. and he goes through the whole analysis of the Kim Ark case and then takes on Alito and Thomas and Gorsuch and says you're wrong about the common law. You're wrong that people born in this country don't automatically have allegiance to this country. There's all this fighting in the majority opinion against the dissent about allegiance. What type of allegiance? The baby's born here.

18:02Michael Popok:Baby doesn't have allegiance to Mexico or Guatemala or Haiti or South Africa or wherever else. The baby's born. It's a baby. It has allegiance to the United States unless it decides otherwise as an adult. I'm going to continue to follow it. There's going to be more to talk about. Some great programming coming up. I'm going to be hosting for the American Civil Liberties Union. a roundup of all Supreme Court cases that's going to be happening on the 7th of July. You're not going to want to miss it. A live stream town hall that I'll be hosting on the Legal AF YouTube channel. And tomorrow, on Wednesday, Court Accountability Action, along with some tremendous constitutional scholars, are going to be hosting a roundtable about the Supreme Court as well on the Legal AF YouTube channel and the links for it are below.

18:55Michael Popok:So until my next report, I'm Michael Popak. Can't get your fill of Legal AF? Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the Substack. You'll find the court filing and the oral argument there, including a daily roundup that I do call, wait for it, Morning AF. What else? All the other contributors from Legal AF are there as well. We've got some new reporting, we've got interviews, we've got ad-free versions of the podcast and hot takes. Wear Legal AF on Substack. Come over now to Free Subscribe.

19:35When it's about to keep your garden, you need a team that doesn't fail you. So buy with confidence in The Home Depot and take advantage of the winter savings in Ryobi, the number one in an inexpensive power for exterior.

19:49.