Episode Transcript
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Speaker 1 (00:00):
In the next hour at the US Supreme Court will
be hearing a challenge to President Trump's Birthright Citizenship Executive Order?
Speaker 2 (00:06):
Do you Constitutional law? Professor Ian Ferrell joining us right
now in the KWA commt Spirit Health Hotline. Professor, welcome
back now before we discuss the Fourteenth Amendment and birthright citizenship,
help me understand, because if I'm getting this correct, this
s GOODUS hearing is also about and maybe the main
genesis of this is about whether federal judges can block
(00:26):
Trump administration policies across the country. Is that the case?
And if it is, can you lay out that piece
of it first?
Speaker 3 (00:33):
Yeah, thanks for having me on. You're absolutely right. This
is the key issue that the Supreme Court is looking
at today. So the way this works is that when
there's a challenge to say government action of this kind,
it takes a while for the merits to be decided
and go through the court process, and so one of
(00:54):
the first things that happens is that parties will ask
for interlocuatory injunction. So in this case, for instance, the
three district federal courts said that while these cases are
working their way through the system, there would be a
prohibition on the government implementing these the birth Right Citizenship
(01:18):
Executive Order throughout the entire country. And so the issue
here is whether a district court judge, so a federal judge,
but in a district court in one corner of the country,
can issue a ruling affecting the entire country.
Speaker 1 (01:36):
So, Professor Ferrell, we had Attorney General Phil Wiser on
earlier this morning. He was talking about the confusion of
like Colorado being part of this lawsuit, Idaho not being
part of this lawsuit, in the back and forth of
what that could look like if they rule for or
against this. I believe there's twenty two states challenging the order.
So what's their overall argument and is it valid?
Speaker 3 (01:57):
Yeah, I mean this is an issue that is been
of concern to people and discussed that length beyond even
the birthright citizenship situation. So the pros and consors follows.
So the argument in favor of having district courts give
(02:18):
injunctions nationwide is that the thing that they're challenging may
be a nationwide law or practice. And so unless you
could have an injunction from one court that addresses the
entire country, then you could have one district in one
(02:38):
state allowing the government to do it and not being
allowed in the other parts of the country, And in
order to get it blocked throughout the entire country, you
would have to have multiple lawsuits. The con is that
it encourages forum shopping, and so it encourages the plaint
(03:04):
is to find the one friendly judge perhaps who would
be willing to issue an injunction, and that stops the
whole process nationwide. And that happened recently when there was
a challenge to the Metapriystone drugs and a single judge,
Judge Chasmeric in Texas, issued a nationwide band professor.
Speaker 2 (03:28):
That's some of the inner workings of the court about
the process of the court. But I want to get
to the really the genesis of this, the fourteenth Amendment
and birthright citizenship, citizenship and how this all culminated. Is
it crystal clear, is it black and white or is
there some gray regarding birthright citizenship in the fourteenth Amendment.
Speaker 3 (03:49):
My view is that it's about as black and white
as it can get. So the argument that birthright citizenship
is not enthrined in the Constitution in a way that
covers pretty much everybody, including people who are undocumented. Up
until very very recently, that was a fringe theory. The
(04:13):
majority of vast majority of scholars and judges would have
said that this decision or this issue was resolved in
a nineteenth century case called Wan kim Ark and so on.
Any I think, plausible reading of the text of the Constitution,
there is no merit to this case.
Speaker 1 (04:36):
Do you think we could see another case though, that
would be discussing the constitutionality of birthright citizenship.
Speaker 3 (04:44):
Oh so, I think any challenge to birthright citizenship, in
my view, does not have a strong case behind it
because of the text of the Constitution. Now, all of
that being said, the currents makeup of the US Supreme
Court has issued decisions that have surprised me. And so
(05:10):
whether the Court will agree that this is without merit
is a different question, one that I don't think is
quite as black and white, although I do still think
that they would rule that birthright citizenship covers documentary immigrants,
(05:31):
And to be honest, if they were to rule the
other way, that would suggest that the law doesn't mean
what we thought it meant.
Speaker 2 (05:39):
I was going to ask that question. You took that
off the table. Make up of the court and their decisions.
So I want to move forward with this. This has
been in the news of late I know you watched
this as well, Cutter offering the President the administration of
four hundred million dollars jet. It seems to, at least
on its face, a dilettant when it comes to last,
seems to fly in the face of the emoluments clause
of the Constitution. Your thoughts on that is that as
(06:00):
black and white. I know the Attorney General Pam Bond,
he said it's okay, though she actually was an advocate
for Cutter back in her day, she was a lobbyist.
But what are your thoughts on that?
Speaker 3 (06:11):
Yeah, this is another great and important and interesting question. So,
as you pointed out, the Emolument's clause in the Constitution
prohibits officials of the government from accepting gifts from other
heads of state and so forth. And to my mind,
this looks like it's a violation of the Emolument's clause
(06:35):
on its face. Now, it's not quite as black and white,
I think as the citizenship case. So I imagine that,
for instance, the government would argue that the gift is
not being given directly to President Trump, but rather to
the US government, and then once Trump leaves, offers to
(06:55):
the Presidential Library. I am not persuaded by the by
those arguments, but courts may be. And there's an additional
issue here, which is, in order to bring a case,
say before the federal courts to block this as on
(07:16):
the basis of the emolument's clause, someone would have to
have standing to sue, and it's unclear who would have
the skin in the game, as it were, in order
to have standing for that, do you?
Speaker 1 (07:28):
Constitutional law Professor at Ian Ferrell, thank you so much
for your time. As always,
In the next hour at the US Supreme Court will
be hearing a challenge to President Trump's Birthright Citizenship Executive Order?
Speaker 2 (00:06):
Do you Constitutional law? Professor Ian Ferrell joining us right
now in the KWA commt Spirit Health Hotline. Professor, welcome
back now before we discuss the Fourteenth Amendment and birthright citizenship,
help me understand, because if I'm getting this correct, this
s GOODUS hearing is also about and maybe the main
genesis of this is about whether federal judges can block
(00:26):
Trump administration policies across the country. Is that the case?
And if it is, can you lay out that piece
of it first?
Speaker 3 (00:33):
Yeah, thanks for having me on. You're absolutely right. This
is the key issue that the Supreme Court is looking
at today. So the way this works is that when
there's a challenge to say government action of this kind,
it takes a while for the merits to be decided
and go through the court process, and so one of
(00:54):
the first things that happens is that parties will ask
for interlocuatory injunction. So in this case, for instance, the
three district federal courts said that while these cases are
working their way through the system, there would be a
prohibition on the government implementing these the birth Right Citizenship
(01:18):
Executive Order throughout the entire country. And so the issue
here is whether a district court judge, so a federal judge,
but in a district court in one corner of the country,
can issue a ruling affecting the entire country.
Speaker 1 (01:36):
So, Professor Ferrell, we had Attorney General Phil Wiser on
earlier this morning. He was talking about the confusion of
like Colorado being part of this lawsuit, Idaho not being
part of this lawsuit, in the back and forth of
what that could look like if they rule for or
against this. I believe there's twenty two states challenging the order.
So what's their overall argument and is it valid?
Speaker 3 (01:57):
Yeah, I mean this is an issue that is been
of concern to people and discussed that length beyond even
the birthright citizenship situation. So the pros and consors follows.
So the argument in favor of having district courts give
(02:18):
injunctions nationwide is that the thing that they're challenging may
be a nationwide law or practice. And so unless you
could have an injunction from one court that addresses the
entire country, then you could have one district in one
(02:38):
state allowing the government to do it and not being
allowed in the other parts of the country, And in
order to get it blocked throughout the entire country, you
would have to have multiple lawsuits. The con is that
it encourages forum shopping, and so it encourages the plaint
(03:04):
is to find the one friendly judge perhaps who would
be willing to issue an injunction, and that stops the
whole process nationwide. And that happened recently when there was
a challenge to the Metapriystone drugs and a single judge,
Judge Chasmeric in Texas, issued a nationwide band professor.
Speaker 2 (03:28):
That's some of the inner workings of the court about
the process of the court. But I want to get
to the really the genesis of this, the fourteenth Amendment
and birthright citizenship, citizenship and how this all culminated. Is
it crystal clear, is it black and white or is
there some gray regarding birthright citizenship in the fourteenth Amendment.
Speaker 3 (03:49):
My view is that it's about as black and white
as it can get. So the argument that birthright citizenship
is not enthrined in the Constitution in a way that
covers pretty much everybody, including people who are undocumented. Up
until very very recently, that was a fringe theory. The
(04:13):
majority of vast majority of scholars and judges would have
said that this decision or this issue was resolved in
a nineteenth century case called Wan kim Ark and so on.
Any I think, plausible reading of the text of the Constitution,
there is no merit to this case.
Speaker 1 (04:36):
Do you think we could see another case though, that
would be discussing the constitutionality of birthright citizenship.
Speaker 3 (04:44):
Oh so, I think any challenge to birthright citizenship, in
my view, does not have a strong case behind it
because of the text of the Constitution. Now, all of
that being said, the currents makeup of the US Supreme
Court has issued decisions that have surprised me. And so
(05:10):
whether the Court will agree that this is without merit
is a different question, one that I don't think is
quite as black and white, although I do still think
that they would rule that birthright citizenship covers documentary immigrants,
(05:31):
And to be honest, if they were to rule the
other way, that would suggest that the law doesn't mean
what we thought it meant.
Speaker 2 (05:39):
I was going to ask that question. You took that
off the table. Make up of the court and their decisions.
So I want to move forward with this. This has
been in the news of late I know you watched
this as well, Cutter offering the President the administration of
four hundred million dollars jet. It seems to, at least
on its face, a dilettant when it comes to last,
seems to fly in the face of the emoluments clause
of the Constitution. Your thoughts on that is that as
(06:00):
black and white. I know the Attorney General Pam Bond,
he said it's okay, though she actually was an advocate
for Cutter back in her day, she was a lobbyist.
But what are your thoughts on that?
Speaker 3 (06:11):
Yeah, this is another great and important and interesting question. So,
as you pointed out, the Emolument's clause in the Constitution
prohibits officials of the government from accepting gifts from other
heads of state and so forth. And to my mind,
this looks like it's a violation of the Emolument's clause
(06:35):
on its face. Now, it's not quite as black and white,
I think as the citizenship case. So I imagine that,
for instance, the government would argue that the gift is
not being given directly to President Trump, but rather to
the US government, and then once Trump leaves, offers to
(06:55):
the Presidential Library. I am not persuaded by the by
those arguments, but courts may be. And there's an additional
issue here, which is, in order to bring a case,
say before the federal courts to block this as on
(07:16):
the basis of the emolument's clause, someone would have to
have standing to sue, and it's unclear who would have
the skin in the game, as it were, in order
to have standing for that, do you?
Speaker 1 (07:28):
Constitutional law Professor at Ian Ferrell, thank you so much
for your time. As always,
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