Trump Blindsided by Emergency Motion

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1:28Michael Popok:Not one but two federal judges are poised to block Donald Trump's latest attempt to screw with birthright citizenship. He was on the losing end in June 5 to 4, including John Roberts and Amy Coney Barrett, finding that the United States Constitution provides for birthright citizenship and that the only exceptions are the ones recognized in an 1898 Supreme Court case we call Wong Kim Ark. That case now known in the history books and law textbooks as Barbara versus Trump. But Donald Trump didn't like Barbara versus Trump. And so that within hours after the United States Supreme Court issuing their mandate 60 days after their opinion, making it final, Donald Trump issued two new executive orders trying to create another about dozen categories of exceptions, exceptions from birthright citizenship.

2:20Michael Popok:Oh, your parents work for a non-governmental organization that we don't like? Oh, then you're not going to be a U.S. citizen. Oh, your parents are, somebody's branded a foreign terrorist by Donald Trump or the Secretary of State under shadowy circumstances. You were born here? Sorry, you're not a U.S. citizen. your parents participated in birthright tourism birth tourism where you tried your mother tried to come here to have a baby here even though you were born here you're not a citizen it's not what the united states supreme court said and now two different groups one led by the american civil liberties union our friends and collaborators over on legal af have run back to court because the way it works procedurally is that the supreme court made the law of the land five to four Five Supreme Court justices finding that the birthright citizenship is embodied in the 14th Amendment.

3:17Michael Popok:A sixth judge, Judge Kavanaugh, said, no, it's in a statute and Congress can change it. But there are five votes. And as long as Amy Coney Barrett and John Roberts aren't going anywhere in the time for the time being, birthright citizenship in the 14th Amendment in the Constitution is the law of the land. Donald Trump's response, make me. Now, the Supreme Court isn't going to be the one that initially makes them because the underlying district court decisions, the one in front of Judge LaPlante up in New Hampshire, a judge down in Maryland, a judge in New Jersey, a judge in Seattle, Washington, and so on, their preliminary injunctions are the ones that were affirmed by the United States Supreme Court.

3:57Michael Popok:And they're the courts that you got to go back to when the Supreme Court's precedent has been violated. Sure, you could try to argue a motion for contempt before the United States Supreme Court on their order, but they would always send it back to a lower court to decide whether there is a violation of the Supreme Court's order. Hence the filings by the American Civil Liberties Union and other public interest groups related to immigration rights in the courts of Maryland and New Hampshire. I'm Michael Popok, by the way. You're on Legal AF and on the Midas Touch Network. Great way to support what we do is to go to the Legal AF YouTube channel and hit that free subscribe button.

4:38Michael Popok:Okay, it's called the Barbara versus Trump case because the person who brought the case on behalf of a class of other people who would have had their children denied birthright citizenship, wanted to use a Jane Doe, wanted to be anonymized, obviously, so she wouldn't be attacked by the Trump administration. So that case is known as Barbara. The other case is known as Casa Incorporated. That's a public interest group, an immigration rights group that brought that case. But when we refer to the birthright citizenship opinion, the new jurisprudence of the Supreme Court, the law of the land, we refer to it as the Barbara decision.

5:15Michael Popok:When the five to four decision, the Supreme Court told Donald Trump, birthright citizenship stretches back to old, tiny England times, well before the colonial period in America. And that is what the framers of the 14th Amendment were trying to embody and memorialize in their 14th Amendment, the original right of birthright citizenship, stretching from the English common law all the way forward, and the rights of people to have rights fundamentally, including first and foremost that they are U.S. citizens or citizens of the country in which they are born. The majority also recognized a couple of exceptions, which were embodied in the 1898 case of U.S.

6:01Michael Popok:versus Wong Kim Ark, an American-born person of Chinese descent who was denied the ability to come back into the United States when he traveled to China to visit family. And it was declared that Wang Kim Ark is a citizen because he was born in San Francisco, even though his parents were still unnaturalized, if you will, Chinese. Okay, that's the law. They recognize two exceptions. One, children of ambassadors and other foreign dignitaries, you know, because there's this legal fiction that the consulate or the embassy is still foreign soil, the soil of the country in which they represent and not the United States.

6:39Michael Popok:Okay. Even though, unless they're giving birth in the foreign soil, I don't know why giving birth in a hospital in America doesn't constitute being born in the U.S., but we'll leave that for another day. And also an exemption related to certain 19th century Native American tribes because of other contracts and relationships with those tribes. That's it. Now, Brett Kavanaugh, when he wrote his concurrence. He's the great concur. The concurrence is, yeah, I agree with the result, but not for the rationale. I agree with the result, but not the legal thinking behind it. I want to give you my own legal thinking.

7:13Michael Popok:So he voted with the majority. So some news outlets reported it as six to three. No, it wasn't that. It wasn't that. It was much closer. Only five out of nine thought that the 14th Amendment says what it says. But fortunately for us, two of them are on the ultra right wing of the court, John Roberts and Amy Coney Barrett. Kavanaugh, in a footnote, in a footnote to his decision, said that after already arguing that it's the immigration statute, the Nationality Act that was created after the Wong Kim Ark case by Congress, that is what gives people birthright citizenship. Totally disagree with that, but that That was his analysis.

7:56Michael Popok:He then, the reason he did it was revealed in a footnote of his concurrence, where he said, there are other exceptions that Congress could create. They're just not before the court at the present time. What did Donald Trump hear? I can make new exceptions. There are new exceptions. Yeah, that Congress can create. See, Donald Trump always conflates the executive branch and the legislative branch and thinks whatever Congress can do, he can do by executive of order. We know that's not true. The United States Supreme Court has told him that a number of times over the last two years. So Trump, to distract attention from the fact that the Supreme Court just issued their mandate and knowing that a lot of the press would be reminding people that he lost on birthright citizenship, says, I'm going to try it again.

8:42Michael Popok:I'm going to create all these vague categories, so vague that when one of the public interest groups, the Cassa Incorporated a group, went back before they filed in court this time around and asked the Trump administration, what do these mean? They refused to clarify them. They don't even know what they mean. Have you ever thought I should really be doing something to protect myself from stalkers, scammers, and hackers, but you're not sure what? Here's what to do. Go to www.joindeliteme.com slash legal AF and enter code legal AF. You'll get 20 % off Delete Me. Delete Me removes your personal information that's being sold online.

9:21Michael Popok:Look, I have an active online presence, so privacy is really important to me. Knowing Delete Me does the hard work of removing my information from hundreds of data broker websites gives me real peace of mind. Take control of your data and keep your private life private by signing up for Delete Me. Now at a special discount for our listeners, Get 20 % off your Delete Me plan when you go to joindeliteme.com slash Legal AF and use promo code Legal AF at checkout. The only way to get 20 % off, though, is to go to www.joindeliteme.com slash Legal AF and enter code Legal AF at checkout. So now we've got the two filings, one with Judge LaPlante, ACLU, one Cass Incorporated down in Maryland.

10:11Let me read to you from the American Civil Liberties Union filing.

10:18Michael Popok:This new order violates the court. This is on page three. This new order violates the court's existing preliminary injunction as it purports to strip birthright citizenship from members of the certified class, despite the Supreme Court's recent decision. The court should underscore that the government may not strip away class member citizenship through any executive orders or other similarly flawed assertions of executive power over birthright citizenship. They go on to say, in terms of the actual filings, this is on page 16, birthright citizenship is, quote, is no light trifle to be jeopardized, close quote, in such a cavalier manner.

11:00Michael Popok:citing to the United States Supreme Court. The very nature of our free government refutes the notion that those temporarily in office can deprive another group of citizens of their citizenship. If the president issues 100 orders seeking to create new exceptions to the sacred guarantee of the citizenship clause, all 100 will be equally illegal. And nothing requires this court to countenance this continued assault on this foundational constitutional principle or issue an endless string of executive order-specific injunctions. This court should make clear that defendants, that's the Trump administration, may not take away class members' birthright under the auspices of these or any other executive actions.

11:49Michael Popok:So they want a motion to clarify the preliminary injunction. But that's the first step. I'm going to have Cody Wolfsey on, who's the head of immigration rights litigation for the American Civil Liberties Union who filed this case in the next day or so on Legal AF. This is the first step. The next step is going to be an amended suit and new preliminary injunction addressed particularly to the new executive orders. One to outlaw birthright tourism, birth tourism, and the other one creating these 10 different categories that nobody can figure out of exceptions, exceptions which are completely in violation of the Barbara a Supreme Court decision, plain and simple.

12:28Michael Popok:But step one is, if I were sitting around a room like Cody Wolfsey and the litigation strategist of the American Civil Liberties Union, I would do exactly what they just did. How do we get into court really fast? Don't we have a pending case? We do. There's a preliminary injunction with Judge LaPlante. We got to get back with LaPlante and have him clarify it while we work on the amended pleading, I am sure, that we need to file and the new injunction motion papers we need to file to put this front and center. See, this is going to happen here and happen down in Maryland. Here's what the Maryland group, Casa Incorporated, told their judge.

13:02Michael Popok:Undeterred on August 6th, the president issued a new executive order on birthright citizenship. It says in paragraph, page three, the order's categories are poorly defined. For instance, the category of alien enemy is defined to include any member of a designated foreign terrorist organization. But it is unclear whether that category includes only those individuals or instead includes, but is not limited to those individuals. Like they can't even figure out the language that was used. And it is unclear whether, this is paragraph 11, the executive order exempts the children of lawful permanent residents.

13:39Michael Popok:Based on these various aspects of the executive order's text, it may be interpreted to immediately deny citizenship to members of the certified class. In addition, it's unclear whether the executive order rescinds a prior order. Paragraph 14, on August 7th, before they ran to court, the plaintiffs asked defendants on the Trump side to provide clarity on the issues outlined above. Plaintiffs advised defendants that if they could not provide the clarity, then they would move the court to lift the stay and set a status conference. On August 10th, counsel for defendants replied and said that they could confirm that the new EO operates only prospectively and is not effective until guidance is issued, and that they therefore think it is premature to approach the court.

14:26Michael Popok:And so we're back in court. So here's what's going to happen, just to give you an outline, now that we've got it before these two judges. And there'll be more. These groups, CASA Incorporated and the American Civil Liberties Union, in the case of Barbara, are going to amend their suits. They're going to bring the executive orders front and center and have them declared unconstitutional by these judges. Other groups may do the same thing. I mean, we had attorneys general for the Democrats that brought cases like this in Seattle, Washington and other places. All these judges will start issuing new preliminary injunctions against the Trump administration on this birthright citizenship, on the argument that they have violated the now law of the land, Barbara versus the United States.

15:07Michael Popok:And Donald Trump doesn't have the votes to support him on new exceptions, except for Kavanaugh. If this comes up to the United States Supreme Court in the next several months, when the new term opens the first Monday in October for the Supreme Court, and then gets litigated throughout the year, we're looking at the same thing again. Next June, I'll be talking about a new birthright citizenship ruling, if not before, at the United States Supreme Court. I don't want you to think it's a repeat episode. It's just that this is the example of the vigilance that has to be used against the Trump administration that doesn't take no or unconstitutional for an answer.

15:45Michael Popok:Trump's response is make me. I mean, really make you. So the Supreme Court, to answer some questions that often come up, doesn't generally handle its own policing of its own cases, of its own jurisprudence. If you don't like the result, then you go back to your original courts, you get a new ruling, you bring it back to the Supreme Court and have them make a finding, a finding and an opinion that their jurisprudence has been violated. That's how that works. So this is the new path, the new channel that's been opened of opposition to these new birthright citizenship orders and how they'll be handled on appeal.

16:24Michael Popok:You're on Legal AF and on the Midas Touch Network. One of the great ways to support what we do is really easy, too, and it's cheap, free. Hit the free subscribe button and help us continue to grow our pro-democracy channel on Legal AF YouTube. Until my next report, this is 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.

16:56Michael Popok:Morning AF. What else? All the other contributors from Legal AF are there as well. We got some new reporting. We got interviews. We got ad free versions of the podcast and hot takes where Legal AF on Substack. Come over now to free subscribe.