The World View Of The Supreme Court's Liberal Bloc

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  • Over the course of the past week, the Supreme Court has released a group of the most important decisions of this year’s term. Most of those decisions involved the federal government/Trump Administration as a party.

  • As you probably have seen, the government won the majority of those decisions (ability of President to fire FTC Commissioner Rebecca Slaughter, ability of President to end “Temporary Protected Status” for certain migrants, ability of government to refuse to consider asylum applications from those who have not entered the U.S.), but also lost a few (birthright citizenship, ability of President to fire Federal Reserve Board Member Lisa Cook).

  • Many things about these cases are interesting and worth commenting on, but to me one thing is particularly fascinating: the three “liberal” justices (Kagan, Sotomayor and Jackson) voted as a unified bloc in every case.

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There Is Much More To The Immigration Issue Than Just The GDP Effect

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  • A couple of years ago, in July 2023, I participated in a debate at the Soho Forum on the subject of immigration. The resolution for the debate was: “Resolved: The U.S. should have free immigration except for those who pose a security threat or have a serious contagious disease.” Alex Nowrasteh of the Cato Institute took the affirmative. I took the negative.

  • Nowrasteh, a Senior Vice President for Policy at Cato, is known as a free immigration absolutist. And to his credit he had some good points to make. The most important one was that nothing increases world GDP so much and so fast as letting poor people immigrate into rich countries. Even working at the lowest-paid jobs in the U.S., their incomes immediately multiply by factors of five or ten or more. How could anyone be against that?

  • At the time of the debate in 2023, the Somali frauds in Minnesota had begun to come to light, but only to those paying close attention.

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Birthright Citizenship: Interpreting The Phrase "Subject To The Jurisdiction Thereof"

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  • Birthright citizenship — the idea that anyone born in the United States is automatically a citizen, with full right to receive all benefits and vote when they come of age — has been a fixture of the administration of the laws in this country for my entire lifetime.

  • But does the text of the 14th Amendment to the Constitution make the birthright citizenship rule apply to all cases, even the most extreme?

  • Under the 14th Amendment, properly interpreted, do children born of illegal aliens subject to a deportation order really qualify for birthright citizenship? How about children born of an illegal entrant who has snuck across the border for a few hours just to have the baby and then immediately go home? How about children born of a Chinese billionaire who has hired surrogates in the U.S. to produce dozens of babies? Under the version of “birthright citizenship” implemented by the federal government for the last hundred years or so, all of these examples, and plenty more, qualify.

  • Advocates for the position that all of these extreme cases should qualify for birthright citizenship generally think that their position is exceedingly simple and obvious, so much so that anyone arguing the contrary, or for any exceptions or limits, must be either dishonest or crazy.

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Birthright Citizenship? I Think It's An Open Question

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  • On his first day in office in his second term, January 20, 2025, President Trump issued a collection of Executive Orders. One of those was number 14160, titled “Protecting the Meaning and Value of American Citizenship.”‍ ‍EO 14160 seeks to do away with the long-standing practice of various U.S. agencies of recognizing U.S. citizenship of anyone born in the United States, even if that person’s parents were not legal residents or otherwise legally in the country at the time of the birth.

  • Following issuance of EO 14160, multiple lawsuits were brought in courts around the country seeking injunctions to compel the government to recognize the citizenship of various individuals born here to illegal aliens. Several courts promptly issued injunctions blocking Trump’s Order, all of them on a nationwide basis as far as I can determine.

  • In June, three of those cases, consolidated under the name Trump v. CASA, came before the Supreme Court on the question of whether a District Court could issue a nationwide injunction to block the Order everywhere. The Supreme Court invalidated the nationwide aspect of the injunctions. However, the Court did not consider the merits of whether President and executive agencies could refuse to recognize citizenship of children born here to illegal aliens.

  • But now there are petitions before the Supreme Court asking it to consider this question of so-called “birthright” citizenship on the merits. The Court is widely expected to take up the issue in its current term. So, what is the right answer?

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The Problem With A Regime That Criminalizes "Hate Speech"

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  • “Hate speech.” The term calls to mind every sort of vile and disgusting insult and racial and ethnic slur.

  • Who could possibly be in favor of allowing that? Large numbers of people instinctively assume that hateful statements, particularly those based on racial, religious or ethnic categories, must surely be illegal.

  • But here in the U.S., such statements in general are not illegal, and not subject to criminal prosecution. A couple of weeks ago, our Attorney General Pam Bondi was recorded on a podcast saying that “We will absolutely . . . go after you, if you are targeting anyone with hate speech . . . . You can’t have that hate speech in the world in which we live.” I, among many others, pointed out that Ms. Bondi had badly mis-stated U.S. law on the subject. Our Supreme Court has drawn a line under the First Amendment that makes almost all “hate speech” constitutionally protected, short of incitement to imminent violence.

  • If you think that that line might not make sense, consider the alternative. Over in the UK, they have seen fit to criminalize “hate speech.”

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On October 7, A Few Thoughts On "Islamophobia"

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  • Today is the first anniversary of the massacre perpetrated by Hamas on Israel. One year ago today, about 1200 hundred people were killed in the surprise attack, and about 250 taken hostage. Almost all of those killed or taken hostage were civilians, and the large majority were either women, children, or the elderly. About 100 remain as hostages today.

  • This sad occasion gets me to thinking about the term “Islamophobia.” I don’t even remember this term existing in my youth. This piece in The New Republic in 2011 traces the origin of the term to the 1970s. But from those relatively recent origins, the term “Islamophobia” has risen fast in the ranks of the epithets generally used to condemn non-conformists to the progressive project as evil people. Other such terms include racism, sexism, homophobia, xenophobia, and trans-phobia.

  • Why is the term “Islamophobia”?

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