Quirky Arguments but Perhaps a Path Forward on Limiting Birthright Citizenship? & Iran
Takeaway #1: Quirky Arguments
It’s an oversimplification to suggest that the way Supreme Court Justice John Roberts votes is the way that SCOTUS decisions go...but not by much. There has been no more influential justice on the high court, among its current participants, than the chief justice as he’s voted for the majority opinion of 95% of the time. In other words, independent of other factors if you’ve lost John Roberts, you’ve literally only had a 5% chance of winning your case. Within the first ten minutes of yesterday’s hearing, it became quite clear that the Trump administration only had, at best, a 5% chance of winning its birthright citizenship case. After Justice Thomas, the chief was the second justice to speak, and he stated that the administration's claim that birthright citizenship for children born of non-legal permanent residents, hinged on “quirky arguments”. Specifically, he challenged the Solicitor General, John Sauer, on his contention that use of the four established exceptions to birthright citizenship (Children born to foreign diplomats; Children born in outlying possessions such as American Samoa and Swains Island; Children born to enemy invaders; Children born to tribal families that owe direct allegiance to their tribe), were narrow exceptions and President Trump’s executive order was broad. Over the next ten minutes it became even clearer that the Trump administration's odds of winning this case weren’t likely even that good. Justice Gorsuch was next and came in with another quote that hinted at a likely outcome when he said... I'm not sure how much you want to rely on Wong Kim Ark. Without getting into the nitty gritty of the landmark 1898 case involving a born San Franciscan whose parents then moved him back to China and was later declined reentry into the United States under the Chinese Exclusion Act...it’s generally safe to say that if a cornerstone argument you’re leaning on to help make your case is called out by a Supreme Court Justice you need on your side if you’re hoping to win. To put into perspective just how likely it is that you can win a Supreme Court case in the current court if you don’t have the vote of Justice Roberts or Gorsuch...it’s essentially zero...as in it’s not happened yet. That’s not to say that the president’s case was...
Takeaway #2: Entirely a lost cause
To the extent that oral arguments matter (which is highly debatable), Solicitor General, John Sauer outperformed my expectations for what he might be able to argue to support his case. Conversely, the ACLU’s attorney, Cecillia Wang, was so poor in her presentation that if it could have been possible for her to have lost the case based on oral arguments it would have happened. The bottom line is that she was way out of her league in that court room. It was always a highly unlikely outcome that in the grand scheme of the three types of federal policy: Constitutional amendment, law, executive order – the way that citizenship has been interpreted to date would be changed in a landmark way with the legally weakest of those three types of federal policy. In the contextual arguments what did come out, in my view, starting with Justice Kavanagh – is that while the executive order in question wouldn’t do – perhaps a law that was very specific and narrowly targeted would do. I also had that sense from Justice Barrett too. In other words, I believe that at best, the President will lose by a minimum of 7-2 (with the possibility that justices Alito and Thomas back the president’s EO), but that the prevailing opinion written could perhaps create a way for a change of statue under law being sufficient to reign in abuses of birthright citizenship by non-citizens. If that were to happen btw, that would be even greater ammunition for the president and those seeking an end of the Senate’s legislative filibuster rule. So, there’s little doubt that the president will lose this case, but it very well may not have been a lost cause...instead creating a lane for the policy to be amended without requiring a new constitutional amendment (which also would perhaps have been the reason right along that the Supreme Court wanted to hear this case – rather than just allowing lower court rulings to stand).
Takeaway #3: We’re not there yet
That’s true of the remarkable Artemis II mission which launched perfectly yesterday. It’s also true of our military action in Iran. That much was made clear by President Trump last night as he outlined in his presidential address that we will continue to hammer Iran over the next few weeks. This was not the message many stateside wanted to hear. Optimism had built over the prior couple of days that an end to the conflict may come as soon as this week. That optimism was evidenced in the financial markets which saw strong rallies for stocks and oil dropping back below $100 per barrel. This morning that optimism is gone as stock futures are lower and oil is now significantly higher rising by nearly $8 per barrel to about $108 – the second highest intraday price in this cycle and a fresh 3.5 year high if we close at these levels today. The president may win the Iran war – I have no doubt he will – however he’s increasingly risking a loss of support at home and with affordability the top issue this cycle – this midterm election cycle for Republicans as well.