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This is a "what does the Constitution mean?" issue. If you take the Constitution seriously, once the issue is on the table you want to get it in front of SCOTUS asap.
If US-born children with noncitizen parents enjoy citizenship revocable by executive order, then they don't really enjoy citizenship. This needs to be resolved in a way which allows some degree of legal certainty, and under the system as it has existed since 1789, that means a definitive interpretation of the Constitution by the institution responsible for doing so.
Agreed. I'd personally be completely fine with SCOTUS resolving the issue in favor of birthright citizenship, but in a way that is much more clear than the current mishmash of extremely old cases that are confusing. To me, the important part is that we get some clarity and certainty. I do hope that the number of people who are harmed in some way during the transient period between the EO and an eventual SCOTUS resolution is minimized, but I acknowledge that even if it is eventually resolved in their favor, there are likely to be some who are harmed in the transient period. With any luck, they'll settle the issue of what the ground rules are, and then it may be up to Congress to make tweaks, given the clarified underlying Constitutional law.
It's one of those few areas where I think the "Cases and Controversies" Clause is annoying. It's not enough that I would want to get rid of it, because it protects the courts from many many other issues that would be a waste of time, but it's one of the few where I would have really really loved if they could have just given an "advisory" opinion on the matter rather than having to wait until something like an EO/statute was passed to force the issue into the courts. So even if I don't necessarily like the EO, I don't think there was really any other way to get a very clear legal resolution of the matter, and since I prefer having the clarity significantly over having the issue always lurking in the background, I weakly support it, with hopes that things like TROs can mitigate most issues until a ruling comes out.
I think the courts will duck the Constitutional issues and make their ruling based on Title 8. Trump will need to get Congress to go along before there's a Constitutional issue raised.
The relevant statutory text uses identical wording to the Constitution, so a sane legal system would find that resolving the statutory issue also resolves the Constitutional one. If Roberts tries to punt by interpreting the US Code one way while reserving the right to interpret the same words in the Constitution a different way, he should be beaten to death with a large hardbacked legal dictionary pour encourager les autres.
That said, the punting opinion does write. Congress passed 8 USC 1401 in 1952 at a time when Wong Kim Ark was good law, so you could claim that Congress intended the Wong Kim Ark meaning of "subject to the jurisdiction thereof" in 1952 even if it intended something else in 1866 when proposing the 14th amendment.
I can't imagine any of the justices except Roberts wanting to punt this one (although I can imagine Roberts sitting on Barrett). So the most likely punting scenario is a controlling concurrence in a 4-4-1 or 4-3-2 mess.
My guess would be that the government loses 8-1 with Alito dissenting.
I do not believe our legal system is sane in that way.
I don't think the Supreme Court itself will punt (except in as much as they'll deny cert); I think the lower courts will explicitly not reach the Constitutional issue, basing their decision on statute (even though the wording is the same), and then the Supreme Court will refuse the case. Maybe if the Fifth Circuit goes rogue SCOTUS will be stuck with it.
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Very possibly. They have copy/paste language, so it very well may be one of those where they grant cert on both questions and then have a variety of colloquies about whether there is any reason to interpret the same language differently. They may ultimately claim to punt on the Constitutional question, but my guess is that unless there is some form of "smoking gun" in the opinion for why they should interpret it differently, then I think the reasonable inference would be that we have significantly more certainty on the Constitutional question than we did before, and it significantly lowers the chance of a statute passing muster, either.
I would note that the only way they can really claim to punt on the Constitutional question would be if they rule against the gov't. They can't really rule for the gov't on the statutory question and then leave the Constitutional question unresolved. That's part of why they're likely to grant cert on both questions and from that point, there would be some chance of, "We're technically only resolving the statutory question against the gov't and leaving the Constitutional question open, but c'mon, it's gotta be 90+% that the Constitutional question with the exact same language will come out the same way."
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