Ruth Marcus writes:

The courts cannot protect us from President Donald Trump’s unconstitutional overreach. That is the terrifying lesson of Friday’s 6–3 Supreme Court ruling limiting the power of federal judges to issue broad orders blocking Trump’s policies from taking effect while the lawsuits challenging them make their way through the courts. The case, Trump v. CASA, involved one of the most blatantly unconstitutional of Trump’s orders: his bid to revoke, by executive fiat, the constitutional guarantee of birthright citizenship. But the implications of the ruling extend far beyond that single issue. Friday’s decision means that courts are now hobbled from stopping any of the Administration’s actions, no matter how unconstitutional they may be, nor how much damage they will inflict. Once again, the Court’s conservative super-majority abandoned its constitutionally assigned role and dangerously empowered the President. As Justice Sonia Sotomayor put it in her dissent, “its decision is nothing less than an open invitation for the Government to bypass the Constitution.”

This outcome was as unnecessary as it was unwise. Witness the victory lap that President Trump and Attorney General Pam Bondi took in the White House briefing room after the ruling was released. Trump crowed that the Court had defused a “grave threat to democracy,” in which “a handful of radical left judges effectively try to overrule the rightful powers of the president.” Bondi, for her part, decried “rogue judges striking down President Trump’s policies” through “lawless injunctions” that let district-court judges act as “emperors.”

It remains unlikely that the Court, when it finally gets around to deciding the merits of the dispute, will uphold Trump’s effort to undo birthright citizenship. Birthright citizenship was the rule before it was written into the Fourteenth Amendment. (The departure that necessitated constitutional protection was the Court’s infamous 1857 holding in Dred Scott v. Sandford, which held that people of African descent “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution.”) And the language of the Amendment is clear: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” (The caveat—“subject to the jurisdiction”—is a carve out for the children of diplomats and other minor exceptions.) That guarantee has been codified in federal law; it was affirmed in an 1898 ruling in the case of Wong Kim Ark, the U.S.-born son of Chinese immigrants. “The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States,” the Court said in that case, and subsequent rulings have repeated that conclusion. No surprise, then, that three district-court judges reviewing the executive order had little trouble finding that the edict was probably unconstitutional, and that three appeals courts that reviewed their work left intact their rulings blocking the order from taking effect. Equally telling, the Supreme Court majority said not a word about the legality of the order itself. [Continue reading…]