What The Hell America!

Supreme Court Justice Elena Kagan railed against the Trump administration’s attack on birthright citizenship during oral arguments before the court on Thursday.

U.S. Solicitor General D. John Sauer argued that Trump’s executive order restricting birthright citizenship prevents “the percolation of novel and difficult legal questions,” while the courts are operating “asymmetrically” by “forcing the government to win everywhere.” Sauer also posited that the courts can only grant relief to individual plaintiffs.

“Let’s just assume you’re dead wrong,” Kagan replied to the solicitor general. “Does every single person that is affected by this E.O. have to bring their own suit? How do we get to the result that there is a single rule of citizenship that is the rule we have historically applied rather than the rule that the E.O. would have us do?… How else are we going to get to the right result here, which is on my assumption that the E.O. is illegal?”

Kagan continued to chide Sauer.

“You’re losing a bunch of cases: This guy over here, this woman over here—they’ll have to be treated as citizens, but nobody else will. Why would you ever take this case to us (on the merits)?” she asked. “I’m suggesting that, in a case where the government is losing constantly, there’s nobody else who is going to appeal, they’re winning—it’s up to (the government) to decide to take this case to us. If I were in your shoes, there’s no way I’d approach the Supreme Court with this case. So you just keep on losing in the lower courts, and what’s supposed to happen to prevent that?”

Justice Ketanji Brown Jackson also provided input.

“Your arguments seem to turn our justice system—in my view, at least—into a ‘catch me if you can’ regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights,” she said. “Let’s assume for the purpose of this that you are wrong about the merits, that the government is not allowed to do this under the Constitution. Yet, it seems to me that your argument is, ‘We get to keep on doing it until everyone who is potentially harmed by it figures out how to file a lawsuit and hire a lawyer.’ I don’t understand how that is remotely consistent with the rule of law.”

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