Tony McDonald

@LoewyLawFirm “Grand Ayatollah Anthony Kennedy”

I took Constitutional Law with the late great Lino Graglia, who was one of the most well known originalist scholars He would go on and on about “why is SCOTUS making these decisions when obviously the framers wanted Congress to make the decisions” I think about him on days like today

SCOTUS's opinion in Barbara affirmed the judgment of the District Court of New Hampshire. The "judgment" was an order ostensibly granting a preliminary injunction and provisional class certification as to a mass of unidentified children, many of whom are not yet even born. It enjoined "enforcement" of the President's EO 14160 as to that provisional class, whatever that means. The district court order is here: nhd.uscourts.gov/sites/default/… The problems with imposing this order in a practical way upon various federal officials are myriad. I see no reason why each alleged citizen will not need to bring his own petition (or motion, at the very least) to compel some particular action (issuance of a passport, for instance). The problem here is that the government isn't "enforcing" EO 14160 against anyone in any ordinary sense of the term. To follow EO 14160 (which is largely definitional) is to accept a legal premise and to generally refrain from taking actions which would be inconsistent with that premise. So the district court's order purports to be a mandatory injunction, but it doesn't clearly mandate any particular action on the part of any particular government official with regard to any particular individual. One of the class representatives, pseudonymously called "Barbara," says she wants to apply for SNAP benefits for her (at this point, now likely born) fourth child. Another, "Sarah" from Taiwan, wants a passport for her kid. I have little doubt that "Barbara" and "Sarah" will get their SNAP benefits and passport issued. But the extent to which unnamed members of this alleged "class action" will benefit from an advisory opinion about their citizenship status remains to be seen. Trump should reiterate that EO 14160 remains in effect, and that consistent with its terms, federal officials should comply with any final, binding court order. I doubt there will be that many of those to deal with.

Finally getting a chance to read through Barbara at length. I tend to think we should pursue dual paths: (1) We should work the dual legislative/convention processes to amend the constitution to clearly exclude citizenship from those born to non-citizen, temporary residents of the USA. I'm doubtful we can get the numbers, but the effort will be a laudable campaign over a number of years to organize and motivate Americans to protect our citizenship and sovereignty. (2) It is imperative that we recognize and treat illegal aliens and those who defraud their way into our nation as invaders and occupiers, who are by their actions at war with this nation. Those who thwart our laws to criminally occupy our nation fit within the exceptions recognized in Wong Kim Ark and in today's opinion and accordingly their children are not citizens. It is long past time to treat an invasion as an invasion, and to cease treating violation of our immigration and visa laws as if it were a minor legal offense. The latter path arguably leaves much to be desired in terms of public policy. It would recognize the Court's current interpretation of federal law, which grants citizenship to those born to persons who are tolerated to temporarily reside in our country—such as lawfully admitted asylum seekers and those on a student or work visa. Perhaps some will see that as a fine public policy compromise. But nothing about today's decision requires us to grant citizenship to the children of those who unlawfully invade and occupy our soil. We should treat invaders as invaders, and recognize the seriousness of their organized incursion onto our nation's sovereign territory. To echo the majority opinion's reasoning—these people do not owe our nation allegiance and they do not merit our nation's protection. They instead require immediate and swift expulsion, and accordingly their children are not American citizens under the exceptions recognized in 1898 and today.

I don't want to hear about Iran, or Cuba, or whatever random foreign adventure the donors are calling for this month I want to hear about how many millions of people we are deporting this month

NRSC v FEC, as expected, is very good. It only explicitly speaks to Party coordinated expenditure limits, but it will be useful in challenges over other coordinated activities. There are several unconstitutional applications of Texas campaign finance laws that I can see being challenged in the wake of this ruling.

Just to recap — the opinion is absolutely maximalist in favor of invaders. No hedges that I can see from my first pass. Kavanaugh would have struck down the EO as in violation of the statute, but would have permitted congress to change the definition. Gorsuch would have permitted certain as-applied challenges by those with a sympathetic story (child born to long-established illegal parents, for instance). What that tells us is that there was absolutely a path for Barrett to take any of the softer positions to make a different five-vote result and she chose not to.

It has been my (likely misplaced) hope from the beginning that this case will largely end up being about standing. Essentially holding that the circumstances of a person's birth are so fact specific as to require individual adjudication. And that would basically mean "birthright citizenship for those with extensive legal teams."

What I think the Court *will* say: —Jurisdiction is the theoretical jurisdiction of the U.S., qualified only by those waivers whereby the U.S. allows another sovereign to operate within its borders —This is the “plain meaning,” as shown by some dictionary definition that has nothing to do with it and is compatible with every conceivable interpretation —Though Wong Kim Ark formally left the question of domicile open, its actual reasoning does not allow for a domicile requirement —This is a really bad outcome, so you know we must be good at our jobs

What I think the Court *should* say in Barbara: —Jurisdiction is the *exercised* jurisdiction of the U.S. (Schooner Exchange) —Only jurisdiction above a threshold counts (cf. diplomatic exception) —A transiently present newborn is not meaningfully subject to U.S. jurisdiction

Kind of looking forward to getting kicked in the teeth on birthright citizenship in the morning because I’m pretty sure that means Roberts is going to unveil a whopper of a campaign finance ruling. And that speaks to me… Let’s see. #silverlinings

I love a good ambush interview as much as the next guy but on the third no comment, you’re just being obnoxious and rude.

killing me with the parenthetical

It’s a good day

Justice Gorsuch writes separately. He goes where the Constitution takes him, but asks: Would Congress have passed these laws had they known this is what was constitutionally required? Very interesting conclusion, worth considering.

🚨 In a 6-3 vote, the Supreme Court ruled that the President may fire FTC commissioners at will, overruling Humphrey's Executor and holding that the FTC's for-cause removal protections violate the Constitution's separation of powers.

In case you’re wondering, the “BC” (the one that thinks 3 decades on SCOTUS is too long for Clarence Thomas) stands for the Brennan Center, named after liberal icon William Brennan, who spent — checks notes — 34 years on SCOTUS.

@dilanesper Desperately getting the article published at the 11th hour before it would have to be rewritten, maybe.

desperation time

@DallasXCEO Thank you for your service.

Six years ago today, I risked it all illegal tubing on the Frio River to protest Wuhan Flu shutdowns with hundreds of other patriots so you wouldn't have to. It was a selfless, courageous (many have said heroic but it wasn't about me) to protect your freedoms. Pretty sure I should have gotten a Presidential Medal of Freedom. I didn't, but my personal sacrifice should serve as an important reminder that your tubing rights are should never be threatened again 🤣

Things my clients have done in police interviews: - Ignored the cops to take a nap. - Physically slammed their own head into a desk in an attempt to make it look like the police assaulted them. - Told the cops that he was going to walk because the cop was a rookie and he was going to hire a good lawyer and just openly mocked them non-stop. - Shrieked incoherently for 60+ minutes. ...and literally all of these things were better choices than answering any of the officers' questions.

@realmitchlittle Ought to move a call of the house on day one and only allow half of them to leave the chamber at any time for 140 days. Bring in cots. Treat them with the respect they deserve.

And they did it again. Starting off the final day of the Texas Democrat Convention honoring cannibals.

@RussellHWithers @RMFifthCircuit For sure. It’s catchy.

@RMFifthCircuit @TweetTonyMac I’m familiar with that song. It’s super weird and totally hypnotic as you strain and obviously fail to understand it. There’s a music video too.

I think Justice Sullivan (SCOTX) now takes the title of Most-pop-culture-reference-friendly Judge.