On Thursday, the Supreme Court hears verbal debate in the birthright citizenship case. The government’s emergency application presents several important issues regarding the scope of national injunctions and other pressing procedural issues. Will the court resolve any of these long-standing issues? I doubt that. Certainly there are five votes, maybe seven, and maybe eight. That ruling would halt all cases. However, I don’t think there are five votes to reach consensus on a national injunction. That’s why the court has rushed to a verbal argument. It’s about summarizing the ruling against Trump and destroying the case. Secretary Roberts has a bigger fish in his quest to save democracy from itself.
I think the courts will do something similar to the laws of the alien enemy. There are many complicated procedural issues. Can you prove a class based on Rule 23 of TRO? What is the interaction between APA and Habeas Corpus? What level of respect is there when the president declares an aggression? and so on. It’s much easier to find that Trump’s orders are invalid for reasons. The Chief constitutes several rationales to not foreclose the use of statutory power by a future president. I provided this prediction a few weeks ago:
I think the court actually bypasses the Fifth Circuit and all the procedural issues simply by ruling on merits against Trump.
Meanwhile, Judge Hendrix, deep in the heart of Texas I declined To certify the alien class in the Abilene division, despite the Supreme Court’s temporary relief to the “presumed” class almost a month ago. I will never doubt the Supreme Court will arrive a case from the Fifth Circuit. It is much easier to assert a verdict from a wise judge within the Beltway.
