Trump Squeezed as Judge Blocks His Second Unconstitutional Attempt to End Birthright Citizenship

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2:27Michael Popok:Breaking news. We have the first, but certainly not the last ruling by a federal judge, in this case, Judge Boardman in Maryland federal court that declares, at least as it relates to a class of individuals, that the new attempt to rip away birthright citizenship under the 14th Amendment by a new executive order by Donald Trump is just as unconstitutional as the last one that was declared unconstitutional by the United States Supreme Court in June in a case called Barbara. Effectively, Judge Boardman, I'm going to read to you from her memorandum opinion. Effectively, Judge Boardman is saying, which part of no, you cannot rip away birthright citizenship that is provided by the 14th Amendment and the Constitution, certainly against this class of people who have had babies already in the United States, which part of that did you not follow?

3:22Michael Popok:The Supreme Court has ruled. The Supreme Court, whether you're talking about the Barbara versus Trump case from June of this year or the Wong Kim Ark case from 100 years ago, says if you're born in this country, if a baby is born in this country, you are an American citizen, except for two narrow classes, ambassadors and certain Native American groups back 100 years ago. And that's it. No, Trump comes out with a new executive order. Oh, if your parents were involved in a criminal enterprise of smuggling people in, and if you're also, if you work for a corporation that's not based in the United States, where is that in the very narrow exceptions that Justice Roberts, Chief Justice Roberts, wrote about in Barbara?

4:09Michael Popok:For Judge Boardman, it was even easier because she is not wading into an opinion about whether the executive order that was just released by Trump is a violation on its face of the Barbara decision they just entered in June. She's just saying, as it relates to the class that's certified by me in my courtroom, it cannot apply to them to deny their baby's citizenship, period. That's why I said this is the first of many new lawsuits. This one brought by Casa Incorporated, one of the original plaintiffs in the first round of litigation over a year ago that led to the United States Supreme Court. I'm Michael Popok.

4:54Michael Popok:You're on Legal AF YouTube channel. Let me read to you from what just came out of the District of Maryland. And we'll post this up on Legal AF Substack for your review. This is Judge Boardman. Since his second term in office began, the president has tried through executive order to upend our country's longstanding tradition of birthright citizenship and eliminate for large swaths of Americans the right to citizenship by birth. Notice how she says, she already concludes that they are Americans who are being denied their citizenship by Trump. Very, very good turn of a phrase there by the judge. For large swaths of Americans, the right to citizenship by birth, a right enshrined in the citizenship clause of the 14th Amendment.

5:42Michael Popok:After this court and the United States District Court for the District of New Hampshire preliminarily enjoined enforcement of the earlier executive order as to an identical certified class of children. And I'll go over that children. The class that she's talking about is children born to non-citizen parents temporarily or unlawfully in the United States. That's her class. She's saying we already block this, holding that children born of parents unlawfully or temporarily present in the United States are citizens at birth under the Constitution. That is what the United States Supreme Court just said in June in Trump versus Barbara.

6:24Michael Popok:The court says that Barbara effectively invalidated the executive order as unconstitutional and dispelled any doubts about the meaning and scope of the citizenship clause of the 14th Amendment. Let me read that to you so that we all get on the same page here about the 14th Amendment. A month after the Barbara decision came down for the United States Supreme Court, Judge Borman says, the president continued his efforts to abolish birthright citizenship. But even a cursory review of the new executive order carve-outs to birthright citizenship, this is on page two, reveals that they bear little to no resemblance to the narrow exceptions to the rule of citizenship by birth recognized by the Supreme Court in Barbara and in the United States versus Wong Kim Ark back in 1898.

7:11Michael Popok:That's where a American-born, U.S.-born, Chinese-American person left to go back to China to visit relatives, was stopped at the border, and was told that he was not an American, even though he was born in the United States. And that declaration in favor of Wong Kim Ark stood unchallenged for 100 years until Donald Trump came into office. So whether it's Wong Kim Ark, which was reinforced by the Barbara decision back in June, or the Barbera decision itself, the purpose of it. I'm going to read to you from where she cites to Chief Justice Roberts in the majority opinion about birthright citizenship extending beyond our colonial period back to England and the rights of man born in citizenship, born on soil.

8:02Michael Popok:That is important to our foundation of our very country that Donald Trump tries to rip away. And the only narrow, narrow exceptions that Barbara recognized were the ones that were in place 100 years ago. I assure you there was no thought that John Roberts was inviting more exceptions to be written by Donald Trump to rip away birthright citizenship. The class that she's dealing with, which makes her job a little bit easier because she's just saying as it relates to this class, this new executive order is unconstitutional under the Barbara case. That class is mothers who have babies who were born in the United States during the pendency of this case.

8:50Michael Popok:The Citizenship Clause of the 14th Amendment states as follows, 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. Trump likes to say that's only for black people, newly freed slaves. Where does it say that in the Constitution? This constitutional amendment was after the Supreme Court in a case called Dred Scott declared that black Americans were not humans, were not citizens. And under that terrible dark spot, the Congress got together under Lincoln and created the 14th Amendment.

9:31Michael Popok:In Trump versus Barbara, Judge Boardman says, the Supreme Court, Chief Justice Roberts, held that the citizenship clause guarantees citizenship to children born of parents unlawfully or temporarily present in the United States. The Supreme Court began by explaining that the story of citizenship begins with the English common law. English common law, members of the British Empire, including American colonists, were considered subjects of the sovereign. And that the same held, but that there were certain reasons why certain enemies and people who were ambassadors were not going to be considered citizens of the United States.

10:13Michael Popok:She says on page five, as the Civil War approached in the odious decision of Dred Scott, the Supreme Court held that free black Americans born in the U.S. were not citizens because as descendants of slaves, they were not intended to be included in the definition of citizenship by the Constitution. In 1868, Congress passed the 14th Amendment to repudiate Dred Scott. And then on page 26, she says that the court will not accept the party's invitation to wade into the waters of an advisory opinion on the executive order's purported carve-outs. She's saying, I'm not going to go line by line with all these new crazy carve-outs.

10:53Michael Popok:Oh, if your parents were committing a crime, or if you were, if you're somebody, your parents were somebody we declared to be alien enemies. Or, yeah, no, I'm not doing that. I'm just saying, as it relates and maps onto my class that's in front of me in my courtroom, this has already been decided by the Supreme Court in June, if not by the Wong Kim Ark case 100 years ago. She says on page 27, the Supreme Court has spoken. Children in the certified class are citizens at birth. Barbara is the law of the land. The president must follow it, citing Marbury v. Madison from 1803. Marbury v. Madison, for those that are coming late to our constitutional analysis, is what established the modern Supreme Court under Chief Justice Marshall.

11:43Michael Popok:If it wasn't for Chief Justice Marshall and Marbury v. Madison, there wouldn't be a Supreme Court the way that we know it, because it's very sketchily laid out in the Constitution what the Supreme Court's supposed to be doing. It was Marbury v. Madison in which John Marshall said that the Supreme Court should declare what the law of the land is and whether other branches are violating it and the Constitution. So the fact that she has to cite an 1803 case, the seminal case of Marbury versus Madison, for the proposition, it is emphatically the province and duty of the judicial department to say what the law is, to come back at Donald Trump is saying something.

12:25Michael Popok:What's going to happen next? your guess is as good as mine, but this is in Maryland. It's going to go to the Fourth Circuit Court of Appeals, probably up to the United States Supreme Court. In the meantime, other lawsuits have been and will be filed to challenge the implementation of the executive order as soon as they get around to trying to implement it. Right now, it's a little bit premature because they haven't yet moved to implement it. But when they do, you're going to see a dozen cases filed all around the country, in Maryland, in New Jersey, in New Hampshire, in Massachusetts, in California, you name it.

13:05Michael Popok:And all of these, it's going to take about a year, and all of these are going to be in different postures of appellate review before it gets to the United States Supreme Court, probably in the spring of next year, during the second term. It's hard to believe we're in September. The Supreme Court opens for business again the first Monday of October. So this is birthright citizenship, making a round trip, return to the United States Supreme Court. But you can see where judges are. Just to be clear, of the 10 or more judges that handled birthright citizenship cases the first time around, Donald Trump was 0 in 10, 0 in 10 in those cases.

13:44Michael Popok:He was 0 in 10 in the appellate courts, and he lost at the United States Supreme Court. It might have been five to four, but there are five justices on the Supreme Court, Roberts, Amy Coney Barrett, Ketanji Brown Jackson, Kagan, and Sotomayor, who believe that the 14th Amendment says what it says and that you can't rip away birthright citizenship. As long as those two stay together and form a fist, we're not going to have any attempts by Donald Trump's executive orders. None of them will survive. If we lose one of those somehow, one of them kind of moves off to the other side, then we've got a problem.

14:23Michael Popok:I think those five will stick together on Birthright Citizenship. We'll continue to follow it. Labor Day weekend. So many great things going on here in celebration of Labor Day and workers of America and workers worldwide. hit the free subscribe button here as we continue to grow our pro-democracy channel. Do me that favor. I'm also running a sale on Legal AF Substack from now through the end of the midnight on Monday, midnight Eastern time Monday, 50 % off for new members to encourage you to become a member, a card carrying member of our Legal AF Substack community. Until my next report, this is Michael Popak.

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