Justice Elena Kagan called out the government’s attorneys Thursday, flaming Justice Department officials for being “dead wrong” while asking the administration to explain why they would bring a case they had uniformly lost in lower courts to the nation’s highest judiciary.
“Well in this particular case we deliberately have not presented the merits to this particular court on the scope of remedies, because of course that makes it a clean vehicle where the court doesn’t have to look at—” started U.S. Solicitor General D. John Sauer.
“So you just keep on losing in the lower courts, and what’s supposed to happen to prevent that?” she continued.
But Kagan appeared offended by the idea, noting that nobody opposing the administration is going to lose this case—so long as they can afford to bring the case at all.
Birthright citizenship is baked into the Fourteenth Amendment, which guarantees citizenship to everyone born or naturalized on U.S. soil. Donald Trump attempted to end the constitutionally enshrined right mere hours after he was sworn in by claiming that children born to immigrants on temporary visas or who are in the country illegally should not be entitled to birthright status. Trump’s unconstitutional order has since been blocked by multiple judges in multiple court circuits.
Kagan further pressed the government to explain—in a “hypothetical” situation in which it issued an illegal executive order—how the court system could stop it. Sauer suggested that a class action could be certified in the case, though Kagan rebutted that the government would argue there is no appropriate class to certify under the federal rules of civil procedure. Sauer agreed.
Sauer’s arguments drew contempt from justices on both ideological sides of the court—even the ones appointed by Trump himself. Justice Brett Kavanaugh pressed Sauer into a corner, forcing the solicitor general to admit that the Trump administration doesn’t even know how it would enforce its birthright citizenship order.
“Did I understand you correctly that the government reserved its right to not follow a second circuit precedent, say, in New York, because you might disagree with the opinion?” asked Barrett.
“This administration’s practice? Or the longstanding practice of the federal government? And I’m not talking about in the fourth circuit. Are you going to respect—I’m talking about within the second circuit, and can you say that it’s this administration’s practice or longstanding?” Barrett said.
“Really?” asked Barrett.
U.S. Solicitor General D. John Sauer: "The tools that are provided to address hypotheticals like this…"Justice Kagan: "This is not a hypothetical. This is happening out there, right? Every court has ruled against you."Sauer: "We've only had snap judgements on the merits…" pic.twitter.com/GuhNGASIWR
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