SCOTUS rejected his brazen constitutional gambit—but cleared the way for potentially the largest revocation of legal immigration status in American history.
Hey guys, with these momentous rulings we want you to send in your questions on birthright, TPS, and the asylum ruling and we’ll get into them tomorrow with experts Todd Schulte from FWD.us and Michelle LaPointe from the American Immigration Council. Thank you!
Does anyone know whether the elected officials representing Florida are receiving record phone calls from constituents asking them to intervene on behalf of the many workers who will likely lose their right to work?
I'm in Ohio and I've written to both of my senators on behalf of our Haitian neighbors up the road in Springfield. I received a form letter from Bernie Moreno thanking me for reaching out while mentioning NOTHING about the purpose of my inquiry, which is better than what I got from Husted- a big fat nothing.
Could Congress pass a law barring appellate courts from making original findings of fact? If decisions needed to be supported by facts established at the trial courts, deny Justice Roberts his own facts, would the TPS ruling have been possible?
We need 3 million immigrants a year to keep the population young and the economy growing. Preferably a mix of highly educated people but also young adults without major job skills to start their American journey. It's really the only plausible path forward given our aging population and public debt burden. Trump has reduced net immigration to basically zero. Far from protecting "legacy' Americans this is going to make most of us much much poorer.
Evidently, Adrian, you've missed the point, as have all proponents of immigration. You've fallen (again) for the getting, the distraction. The cruelty IS the POINT... IS the STRATEGY.
Why DO marginalized peoples leave their home countries for safe havens?
This administration has figured that out. The best strategy to get rid of immigrants ... "If you can't beat 'em, join 'em."
This piece should be required reading for anyone who thinks the birthright citizenship ruling was a clean win. The TPS decision is the real story, and Adrian Carrasquillo has done the work to show why.
I grew up in apartheid South Africa. The pass laws—the system that determined who could live where, work where, exist where—were built on exactly this architecture. Documentation as a weapon. Status as something granted and revoked by the state on a whim. The horror wasn't only in the cruelty of individual acts. It was in the bureaucratic normalcy of it. The rubber stamp. The expired pass book.
1.3 million people who followed the rules, now delegalized overnight. I have a word for that. Seventy thousand, actually. I put them in a novel.
As an ordinary person I can only make so much sense of the Supreme Court rulings myself. I need help from a neutral legal expert to get more perspective.
What I'm generally wondering is, how much can we say these rulings and opinions from the Roberts court that Trump touts as wins are driven by nakedly partisan ideology? Especially with regards to anti-immigrant outcomes and pro-unitary executive outcomes? Are the rulings all consistent with a generally accepted fixed judicial framework and philosophy or do the justices seem to be cherry picking their methodology to get to the outcome they want in each case?
Also, are there any clear instances where the justices strayed into legislative territory and essentially usurped powers that belong to Congress, to justify their rulings or opinions?
Lastly, for broader context, if there is a strong case that the Roberts court has acted in partisan ways, in justifying its opinions with motivated and ideological reasoning, then how much of an aberration is it? Is it being relatively measured or going to an extreme? Is it staying within the same bounds as other courts of the past or going far out of bounds? How much does it seem like an aberration from a neutral legal expert perspective? How much is it sticking its neck out in these rulings? How much is it changing the nature of the Supreme Court's role, as we've historically understood it to be?
From my own perspective the court seems to be giving huge strategic wins to president Trump's agenda in a few cases - typically these would be the ones that broke 6 - 3 or 5 - 4 along generally partisan lines. It then seems to mask this by giving Trump measured tactical defeats in other cases - in most of those it seems to still pay a huge amount of deference to him, for instance by overtly leaving alternate pathways open for Trump to push his agenda forward.
Seems like the law for Temporary Protected Status needs some work to build in more process than presidential whim. IF the court will permit the limitations on executive power? …maybe some due process hearing requirements so the courts would adjudicate the termination of TPS from a particular class of recipients? At least it wouldn’t need a constitutional amendment since TPS is a congressional invention in the first place
TACO himself did not lose on birthright citizenship or win the immigration wars. The MAGA cult - mostly NOT billionaires - did. Sure, he's a flaming racist who doesn't even pretend to be anything else. But it's the "yuge" rabid authoritarian cult that has coalesced around the perfect useful idiot with the burning need to assure that those who reside within our borders are almost all white, science-illiterate, reason-challenged paranoid authoritarians who worship false gods (including cartoon caricatures of Jesus). THEY want the "brain drain" that will keep Americans less educated and more superstitious than ever. THEY want to replace that nuisance Constitution, with its checks & balances, separation of church & state, etc. TACO himself doesn't care either way, as long as his fragile id and ego are fed constantly. Besides, he and his fellow billionaire grifters can mooch off the "masses" wherever on the planet they live. How quickly we forget that TACO was a Democrat until Obama came along. And as "secular" as they get until Paula White-Cain and others convinced him that "nothing sells like Jesus sells).
I think what you mean by Trump wins is that we elected the wrong person if we care about our friends and neighbors who weren't born here.
I am not at all a lawyer and don't know the TPS law and I suspect that the TPS decision was wrong but I'm surer I hate the impact than I am sure about the law. It seems like TPS is something like an executive order, it's at least an administrative action and I can see where a court would rule that an administrative action can be undone by another one. That's why we have been needing immigration reform. We clearly need clear laws for this and any administration to follow and we clearly can't count on the current supreme court beyond the least viable option in protecting that the laws are faithfully followed.
The 14th amendment case, had the court gone the other way would have been obviously wronger even if it was the less important in terms of the harm caused.
Also, want to appreciate the article. I read it when it came out last night and have been thinking about it enough since that this morning I felt compelled to come back and share what I've been thinking and read what the rest of Bulwarkville was thinking.
The key distinction here is symbolic illegality vs administrative power.
Ending birthright citizenship by executive order is the cartoon villain move. It was always going to attract the cameras because it attacks the Constitution with a bunch of knives hidden inside a pool noodle.
But TPS is where the serious machinery lives. That is not just “immigration policy.” It is the ability to take people who followed the rules, built lives under legal permission, raised citizen children, staffed eldercare and local economies, and then declare their lawful presence expired by executive mood swing.
Trump horrified the world when he ripped up the Iran agreement between 4 nations besides the USA and Iran, because he showed the world that the US's foreign agreements are good for, at best, the remainder of the current presidency... assuming he doesn't change his mind. on a whim.
This action has shown the world that the USA is not to be turned to for mercy, opportunity, compassion, or humanity.
That is the more durable win for Trump and his cartel of Death to America Americans: not rewriting the 14th Amendment in one dramatic swing, but making legal life feel conditional, temporary, and politically revocable by the nation's acting king.
The birthright case says, “There are still constitutional walls”.
The TPS case says, “This administration has a kink for defenestration”.
I wrote "The Birthright Citizenship Controversy: A Study of Conservative
Substance and Rhetoric", in which I argued that the Right's rejection of the clear language of the !4th Amendment violates its purported canons of interpretation. The recent opinion by Thomas demonstrates this. Allen Kamp, Prof. Emeritus, U. ILL. CHICAGO LAW
The chances of getting Congress to pass anything that can alter TPS in ways that are constructive is probably very unlikely for the next 2.5 years or so, so the courts seem like the best way to go forward, and SCOTUS just made that harder.
I am still trying to Wade through Clarence's dissent so I haven't fully grasped how bizarre his take on the 14th Amendment is or if Presidents can, by Executive Order, override established laws and ignore the plain text of the Constitution. Truly I am glad that in this case the Supremes (mostly) believe that a Constitutional Amendment alone can change this feature of the XIV Amendment.
Thanks Captain Obvious!
Kavanaugh's idea that Congress could legislate it away will remain, for the time being, remain a "thought experiment" that could never be achieved.
The TPS thing is far more alarming to me. Sadly the law passed in 1990 explicitly gives the DHS the power to decide who does and does not qualify for protected status and whether the conditions that qualified that protection still exist. The law does not rule out the possibility of withdrawing TPS or providing avenues of relief in the courts for those exposed to withdrawal.
The Congressional Review Act of 1996 gives Congress the ability to change specific policies and regulations of a department and some Democrats are moving to explicitly place the TPS under that law. It will probably have bipartisan support because Congressional Republicans are under pressure from constituents back home to save the Haitians from removal.
However, I have no faith that this Supreme Court won't somehow find the Congressional Review Act an unconstitutional incursion on the power of the President to "faithfully execute the laws" of the land. When this phrase popped up in their decision regarding the firing of commissioners of independent agencies I almost vomited when it was being applied to Trump.
Thanks as always for your excellent reporting, Mr Carrasquillo. I have a big question. How does this current anti-immigrant, nativist backlash compare to previous ones in our history? I’ve read about “No Irish need apply”, and I know my ancestors changed their last name and lied about their ancestry for decades. How does this current period compare to previous eras?
Probably start by reading some history of our immigrant legislation written by Carrasquillo, for instance. I know I need to do some brushing up. I just get the unpleasant sensation that our national legislature (Senators AND Representatives) are not really strong in that instance and farm out the knowledge-seeking to staff - if considered at all. There are exceptions, of course, but not an overwhelming number of Congress members are conversant, let alone paragons of educational virtue (like myself - I have a lot to learn - and then turn it into something that will be intellectually palatable to the citizen on the street), so that the effort suffers from stultification from within.
Before ratification and passage of the 14th Amendment, white people became citizens by birth or naturalization just like now. SCOTUS has an ugly history. It has never been a high minded institution. It held that imported slaves could never be citizens because they were not even people. It was the Dred Scott decision that made the 14th Amendment a necessity. Thousands died in a bloody civil war mostly because of the Dred Scott case. SCOTUS upheld the Chinese Exclusion Act, it affirmed the existence of Jim Crow laws in Plessy v. Ferguson, and it refused to free the nearly 110,000 citizens, including whole families, imprisoned during WWII because they were of Japanese descent. German (11,000) and Italian (3,000) legal residents suspected as being foreign agents were imprisoned only after a hearing. No Italian or German citizens were similarly imprisoned. It affirmed the non existence of trans people yesterday. There is nothing radical about birthright citizenship in the western hemisphere. It seems that citizenship is established in every country of the New World by birth or naturalization and everyone here is an American. We are not french. In France an immigrant is never accepted as being french though they will allow you to live among them. That is what Herr Gruppenfuhrer Miller desires. He will give you permission to work here and to pay taxes, but you can never be an American and you can never participate in our politics unless you buy a golden trump visa.
Adam - DACA = Deferred Action for CHILDHOOD Arrivals. To qualify for the status, one must have arrived in the US as a child (already born elsewhere) so the birthright citizenship case has no direct bearing on DACA
Hey guys, with these momentous rulings we want you to send in your questions on birthright, TPS, and the asylum ruling and we’ll get into them tomorrow with experts Todd Schulte from FWD.us and Michelle LaPointe from the American Immigration Council. Thank you!
Does anyone know whether the elected officials representing Florida are receiving record phone calls from constituents asking them to intervene on behalf of the many workers who will likely lose their right to work?
I'm in Ohio and I've written to both of my senators on behalf of our Haitian neighbors up the road in Springfield. I received a form letter from Bernie Moreno thanking me for reaching out while mentioning NOTHING about the purpose of my inquiry, which is better than what I got from Husted- a big fat nothing.
Thanks for question and sharing your experience, Jeanne. It was shared in the Bulwark Takes show with Adrian, Ben and our immigration experts. It was around the 20-minute mark. https://www.thebulwark.com/p/stephen-miller-goes-on-unhinged-rant
Could Congress pass a law barring appellate courts from making original findings of fact? If decisions needed to be supported by facts established at the trial courts, deny Justice Roberts his own facts, would the TPS ruling have been possible?
The cruelty is overwhelming.
What can we do to raise this issue of TPS and Trump's cruelty to the level that most Americans are aware of it?
Uh
We need 3 million immigrants a year to keep the population young and the economy growing. Preferably a mix of highly educated people but also young adults without major job skills to start their American journey. It's really the only plausible path forward given our aging population and public debt burden. Trump has reduced net immigration to basically zero. Far from protecting "legacy' Americans this is going to make most of us much much poorer.
Evidently, Adrian, you've missed the point, as have all proponents of immigration. You've fallen (again) for the getting, the distraction. The cruelty IS the POINT... IS the STRATEGY.
Why DO marginalized peoples leave their home countries for safe havens?
This administration has figured that out. The best strategy to get rid of immigrants ... "If you can't beat 'em, join 'em."
This piece should be required reading for anyone who thinks the birthright citizenship ruling was a clean win. The TPS decision is the real story, and Adrian Carrasquillo has done the work to show why.
I grew up in apartheid South Africa. The pass laws—the system that determined who could live where, work where, exist where—were built on exactly this architecture. Documentation as a weapon. Status as something granted and revoked by the state on a whim. The horror wasn't only in the cruelty of individual acts. It was in the bureaucratic normalcy of it. The rubber stamp. The expired pass book.
1.3 million people who followed the rules, now delegalized overnight. I have a word for that. Seventy thousand, actually. I put them in a novel.
The Kingdom of America publishes July 4th.
https://thekingdomofamerica.com/
As an ordinary person I can only make so much sense of the Supreme Court rulings myself. I need help from a neutral legal expert to get more perspective.
What I'm generally wondering is, how much can we say these rulings and opinions from the Roberts court that Trump touts as wins are driven by nakedly partisan ideology? Especially with regards to anti-immigrant outcomes and pro-unitary executive outcomes? Are the rulings all consistent with a generally accepted fixed judicial framework and philosophy or do the justices seem to be cherry picking their methodology to get to the outcome they want in each case?
Also, are there any clear instances where the justices strayed into legislative territory and essentially usurped powers that belong to Congress, to justify their rulings or opinions?
Lastly, for broader context, if there is a strong case that the Roberts court has acted in partisan ways, in justifying its opinions with motivated and ideological reasoning, then how much of an aberration is it? Is it being relatively measured or going to an extreme? Is it staying within the same bounds as other courts of the past or going far out of bounds? How much does it seem like an aberration from a neutral legal expert perspective? How much is it sticking its neck out in these rulings? How much is it changing the nature of the Supreme Court's role, as we've historically understood it to be?
From my own perspective the court seems to be giving huge strategic wins to president Trump's agenda in a few cases - typically these would be the ones that broke 6 - 3 or 5 - 4 along generally partisan lines. It then seems to mask this by giving Trump measured tactical defeats in other cases - in most of those it seems to still pay a huge amount of deference to him, for instance by overtly leaving alternate pathways open for Trump to push his agenda forward.
Seems like the law for Temporary Protected Status needs some work to build in more process than presidential whim. IF the court will permit the limitations on executive power? …maybe some due process hearing requirements so the courts would adjudicate the termination of TPS from a particular class of recipients? At least it wouldn’t need a constitutional amendment since TPS is a congressional invention in the first place
From what I can tell, the law on TPS wsa meant to build in more process than Presidential whim and the court let the President out of it.
TACO himself did not lose on birthright citizenship or win the immigration wars. The MAGA cult - mostly NOT billionaires - did. Sure, he's a flaming racist who doesn't even pretend to be anything else. But it's the "yuge" rabid authoritarian cult that has coalesced around the perfect useful idiot with the burning need to assure that those who reside within our borders are almost all white, science-illiterate, reason-challenged paranoid authoritarians who worship false gods (including cartoon caricatures of Jesus). THEY want the "brain drain" that will keep Americans less educated and more superstitious than ever. THEY want to replace that nuisance Constitution, with its checks & balances, separation of church & state, etc. TACO himself doesn't care either way, as long as his fragile id and ego are fed constantly. Besides, he and his fellow billionaire grifters can mooch off the "masses" wherever on the planet they live. How quickly we forget that TACO was a Democrat until Obama came along. And as "secular" as they get until Paula White-Cain and others convinced him that "nothing sells like Jesus sells).
I think what you mean by Trump wins is that we elected the wrong person if we care about our friends and neighbors who weren't born here.
I am not at all a lawyer and don't know the TPS law and I suspect that the TPS decision was wrong but I'm surer I hate the impact than I am sure about the law. It seems like TPS is something like an executive order, it's at least an administrative action and I can see where a court would rule that an administrative action can be undone by another one. That's why we have been needing immigration reform. We clearly need clear laws for this and any administration to follow and we clearly can't count on the current supreme court beyond the least viable option in protecting that the laws are faithfully followed.
The 14th amendment case, had the court gone the other way would have been obviously wronger even if it was the less important in terms of the harm caused.
Also, want to appreciate the article. I read it when it came out last night and have been thinking about it enough since that this morning I felt compelled to come back and share what I've been thinking and read what the rest of Bulwarkville was thinking.
The key distinction here is symbolic illegality vs administrative power.
Ending birthright citizenship by executive order is the cartoon villain move. It was always going to attract the cameras because it attacks the Constitution with a bunch of knives hidden inside a pool noodle.
But TPS is where the serious machinery lives. That is not just “immigration policy.” It is the ability to take people who followed the rules, built lives under legal permission, raised citizen children, staffed eldercare and local economies, and then declare their lawful presence expired by executive mood swing.
Trump horrified the world when he ripped up the Iran agreement between 4 nations besides the USA and Iran, because he showed the world that the US's foreign agreements are good for, at best, the remainder of the current presidency... assuming he doesn't change his mind. on a whim.
This action has shown the world that the USA is not to be turned to for mercy, opportunity, compassion, or humanity.
That is the more durable win for Trump and his cartel of Death to America Americans: not rewriting the 14th Amendment in one dramatic swing, but making legal life feel conditional, temporary, and politically revocable by the nation's acting king.
The birthright case says, “There are still constitutional walls”.
The TPS case says, “This administration has a kink for defenestration”.
Allen Kamp
Allen’s Substack
7m
I wrote "The Birthright Citizenship Controversy: A Study of Conservative
Substance and Rhetoric", in which I argued that the Right's rejection of the clear language of the !4th Amendment violates its purported canons of interpretation. The recent opinion by Thomas demonstrates this. Allen Kamp, Prof. Emeritus, U. ILL. CHICAGO LAW
LIKE
REPLY
Once again, great reporting, Adrian.
The chances of getting Congress to pass anything that can alter TPS in ways that are constructive is probably very unlikely for the next 2.5 years or so, so the courts seem like the best way to go forward, and SCOTUS just made that harder.
I am still trying to Wade through Clarence's dissent so I haven't fully grasped how bizarre his take on the 14th Amendment is or if Presidents can, by Executive Order, override established laws and ignore the plain text of the Constitution. Truly I am glad that in this case the Supremes (mostly) believe that a Constitutional Amendment alone can change this feature of the XIV Amendment.
Thanks Captain Obvious!
Kavanaugh's idea that Congress could legislate it away will remain, for the time being, remain a "thought experiment" that could never be achieved.
The TPS thing is far more alarming to me. Sadly the law passed in 1990 explicitly gives the DHS the power to decide who does and does not qualify for protected status and whether the conditions that qualified that protection still exist. The law does not rule out the possibility of withdrawing TPS or providing avenues of relief in the courts for those exposed to withdrawal.
The Congressional Review Act of 1996 gives Congress the ability to change specific policies and regulations of a department and some Democrats are moving to explicitly place the TPS under that law. It will probably have bipartisan support because Congressional Republicans are under pressure from constituents back home to save the Haitians from removal.
However, I have no faith that this Supreme Court won't somehow find the Congressional Review Act an unconstitutional incursion on the power of the President to "faithfully execute the laws" of the land. When this phrase popped up in their decision regarding the firing of commissioners of independent agencies I almost vomited when it was being applied to Trump.
Griff - helpful background & analysis, thank you. Wish you found “one weird trick” that would fix this in there somewhere tho…
Thanks as always for your excellent reporting, Mr Carrasquillo. I have a big question. How does this current anti-immigrant, nativist backlash compare to previous ones in our history? I’ve read about “No Irish need apply”, and I know my ancestors changed their last name and lied about their ancestry for decades. How does this current period compare to previous eras?
What could Congress do to clean up the laws around TPS to better protect immigrants under this status?
Hey Beth! Thanks for the question. It was answered in this Bulwark Takes video with Adrian, Ben Parker and our immigration experts. The answer is around 16:54 https://www.thebulwark.com/p/stephen-miller-goes-on-unhinged-rant
Oh thank you so much for letting me know!
Probably start by reading some history of our immigrant legislation written by Carrasquillo, for instance. I know I need to do some brushing up. I just get the unpleasant sensation that our national legislature (Senators AND Representatives) are not really strong in that instance and farm out the knowledge-seeking to staff - if considered at all. There are exceptions, of course, but not an overwhelming number of Congress members are conversant, let alone paragons of educational virtue (like myself - I have a lot to learn - and then turn it into something that will be intellectually palatable to the citizen on the street), so that the effort suffers from stultification from within.
Before ratification and passage of the 14th Amendment, white people became citizens by birth or naturalization just like now. SCOTUS has an ugly history. It has never been a high minded institution. It held that imported slaves could never be citizens because they were not even people. It was the Dred Scott decision that made the 14th Amendment a necessity. Thousands died in a bloody civil war mostly because of the Dred Scott case. SCOTUS upheld the Chinese Exclusion Act, it affirmed the existence of Jim Crow laws in Plessy v. Ferguson, and it refused to free the nearly 110,000 citizens, including whole families, imprisoned during WWII because they were of Japanese descent. German (11,000) and Italian (3,000) legal residents suspected as being foreign agents were imprisoned only after a hearing. No Italian or German citizens were similarly imprisoned. It affirmed the non existence of trans people yesterday. There is nothing radical about birthright citizenship in the western hemisphere. It seems that citizenship is established in every country of the New World by birth or naturalization and everyone here is an American. We are not french. In France an immigrant is never accepted as being french though they will allow you to live among them. That is what Herr Gruppenfuhrer Miller desires. He will give you permission to work here and to pay taxes, but you can never be an American and you can never participate in our politics unless you buy a golden trump visa.
Question: Does the ruling end the discussion concerning DACA recipients and they are now actual citizens?
Hey Adam! Thanks for the question. Todd Schulte from FWD.us answered it in this Bulwark Takes show with Adrian. The answer is around 15:55 https://www.thebulwark.com/p/stephen-miller-goes-on-unhinged-rant
Adam - DACA = Deferred Action for CHILDHOOD Arrivals. To qualify for the status, one must have arrived in the US as a child (already born elsewhere) so the birthright citizenship case has no direct bearing on DACA