Canada: Ploughshares into Swords.

"He who troubleth his own house inherits the wind."

     Proverbs 11:29

Canada is treating the U.S. like a threat, not an ally.

Well, of course.

Canadians are just being realistic.

It is possible that Donald Trump really does want to annex Canada. Canada, plus Greenland and the "Gulf of America," would round out some pieces on a map of North America. Trump is a builder and he sees these places as underdeveloped land. His strategy isn't courtship. It's pain. If Canada is miserable enough being our neighbor and ally, maybe it will join us. It might be voluntary -- or not. A bold president might decide it is a military necessity, a matter of "self-defense" for us. That's how Trump would sell it to the world, and Americans might buy it. Canadians wouldn't, but what does Trump care? How many divisions does Canada have on the border?

Canada is responding to this new era.

Classmate Sandford Borins is Canadian. He regularly shares his understanding of the Canadian perspective on events in the USA. He is Professor of Public Management, Emeritus, at the University of Toronto. He writes and posts regularly at www.sandfordborins.com, where this comment first appeared yesterday. This photo, with the class-deprecating T-shirt, refers to a comment by Harvard's president about our class, spoken amid the turbulent times on college campuses during the Vietnam War. Borins, photographed here among some of his awards and diplomas, recently received the King Charles III Coronation Medal, in honor of his public service.

Guest Post by Sandford Borins

Beating our Ploughshares into Swords

I was surprised to see that NATO so readily embraced the target of member nations spending five percent of GDP on defence and defence infrastructure and that Canada was part of this consensus. And there does not appear to be much public debate here as to whether this is an appropriate goal. By inverting the prophet Isaiah’s vision of the messianic age, I want to raise questions about NATO’s new vision.

The US and NATO

The impetus for the increase from a target of two percent of GDP to five percent of GDP came from US President Donald Trump’s call on NATO members to increase their defence spending as well as his veiled threat that the US would reduce its spending on European defence, for example by withdrawing its troops. Russia’s ongoing war in Ukraine is also an implicit threat against the sovereignty of NATO members contiguous to it. (If quoting scripture, we could set Ecclesiastes against Isaiah: “to every thing there is a season, and a time to every purpose under heaven … a time of war and a time of peace.”)

Trump’s 5 percent target was not the product of any comprehensive analysis, but, as is always the case with him, an eye-catching number. Trump has long argued that other NATO members have “ripped off” the US by spending a smaller share of GDP on defence. While the stationing of US troops in Europe has substituted for European troops, the US has benefited from its large defence budget by developing advanced technologies that enabled it to be a prime supplier of weapons to other NATO members. In addition, US military technology has often been transferred to US-based businesses. Thus, the US’s leading role in NATO has given it substantial industrial benefits in defence and other sectors of its economy.

Perhaps Trump’s call on other NATO members to increase their defence spending is an attempt to reap double benefits: first, from a reduction in the cost of US troops stationed in Europe, and second from other NATO members purchasing more US military equipment and technology. If this was Trump’s thinking, he immediately undermined it by expressing his lust for the territory of NATO members Canada and Denmark. Given the complexity and ongoing maintenance requirements of military equipment, Trump’s avarice is making the US an untrustworthy supplier of military equipment. Other NATO members are working to increase their own defence production capacity, not only to avoid relying on the US but perhaps even to defend themselves against the US.

Negotiating Sovereignty

A dramatic increase in defence spending in Canada will involve difficult tradeoffs. I don’t think the Government of Canada and Canadian society are so inefficient that increased defence spending will be funded simply by cutting waste. More defence spending will involve less spending on health, on housing, on education, on culture, and on support for other Canadian industries. Or it may involve a huge increase in the government’s deficits and debt, which only delays the tradeoff. Perhaps the increase in direct defence spending to 3.5 percent of GDP (and defence infrastructure spending to 1.5 percent of GDP) will be phased in gradually over 10 years, even backend-loaded, so that the current commitment can be revisited after the Trump presidency ends on January 20, 2029.

But “Liberation Day” is more than three years away. The renegotiation of Canada’s economic and security relationship, which is intended to produce an agreement, or at least a framework, in three weeks poses stark challenges to our government and society. I assume the worst about the Trump Administration, namely that they want to weaken us, with a long-term goal of absorbing Canada. From this perspective, tariffs and defence spending are two arms of a pincer. Tariffs are intended to weaken the Canadian economy by shifting industrial production — particularly autos, steel, and aluminum – to the US. Pressuring us to increase defence spending – especially if it involves procurement from the US – is intended to weaken us by forcing our public sector to reduce spending in other areas. (A recent historical analogy is the Reagan Administration’s enthusiastic commitment to an arms race that ultimately bankrupted and destroyed the Soviet Union.) Two hugely expensive military systems – completing the contract to purchase 88 F-35s and participating in the Golden Dome missile defence system – contribute to the Trump Administration’s objective of putting financial pressure on Canada and ultimately undermining our sovereignty.

If Canada is to dramatically increase defence spending, we need a careful study of the objectives we want to achieve and the best systems to achieve them. One important objective would be to maximize defence production in Canada. The war between Russia and Ukraine has demonstrated the importance of warfare using inexpensive drones, and Canada should be able to produce its own.

I await the results of the current negotiations with deep concern. The Canada Day celebrations are over. The battle for our sovereignty against our formerly closest ally continues.

[Note: To get daily delivery of this blog to your email go to: https://petersage.substack.com/ Subscribe. Don't pay. The blog is free and always will be.]

 

July 4th at the Vineyard

Happy Independence Day.

I am celebrating it by being at the vineyard at 5:30 a.m. to join farmworkers pruning grape plants.

There is life outside of politics.

Yesterday my nephew and I finished pruning the two acres of Cabernets.

Liam Flenniken, age 17. He did most of the work. He will be a  senior at Lincoln High School in Portland this fall.

I grow a few melons out of love and inertia. Here is what a cantaloupe vine looks like at age four weeks. The vine will double in size every five days.  By the end of July it will be a thick mass of vines.

Cantaloupe: two feet across

Watermelon: two feet across Those tendrils extend several inches a day.

The big job today is pruning the suckers out of the base of the grape vines. and getting the vines secure between the two sets of upper wires. With melons, big, lush vines mean healthy melons. With grapes, lush vines mean more work.  One builds a healthy grape plant by what one removes.

This is a very healthy pinot noir, in need of pruning. 

Adelbert Paz 

He is fast. He pulls and snaps off the suckers and cleans up with clippers.

Finished

Vines off that plant

I am still doing some jobs at the vineyard: planting replacement grape vines, hoeing weeds, moving pipes, walking the field to check the irrigation drips. I prune some, but pruning means getting down low onto one's knees to trim suckers and then getting up to go to the next plant. Doing a few is easy, but there are 2,000 Cabernets, 2,000 Malbecs, and 4,000 Pinot Noirs. The hundredth time -- one long row -- getting up is too hard. 

The vineyard is on the part of the farm with deep pumice soil. It is very fine-grained, and when tilled it is the consistency of powder snow or powdered sugar. You can see the deep footprints in the photos. The grape roots should find it easy to extract the unique characteristics of the terroir.  Ideally, it will make excellent wine. Next year, when I will have grapes to sell in quantity, I will water less to get less foliage and to make the grape vines struggle more, toward the goal of richer, more concentrated grape flavor.

Happy July 4th.

[Note: To get daily delivery of this blog to your email go to: https://petersage.substack.com/ Subscribe. Don't pay. The blog is free and always will be.]

Immigrants don't sponge off us. We sponge off them.

     "The thing that will bankrupt this country more than any other policy is flooding the country with illegal immigration and then giving those migrants generous benefits. The OBBB fixes this problem. And therefore it must pass."
          JD Vance, on Twitter/X

JD Vance is wrong.

Immigrants aren't lavished with benefits. They don't come here to loaf. They come here to work their butts off.

Do a thought experiment. Think of three parallel families.

First, imagine Joe and Mary Doe, both born in Medford, Oregon. They marry and have a baby. The baby, call him Robert, goes to public schools and an Oregon college, which costs taxpayers money, then maybe serves in the military, marries and has two kids of his own. Let's imagine Robert finds his way into a career installing and servicing heating and air conditioning systems for homes and commercial buildings, and does pretty well. He earns money, pays taxes, eventually retires and collects Social Security and moves to Sun City, Florida where he dies. A full and productive all-American life, we would say. He was both a producer and a consumer, and the country is stronger because of citizens like him. JD Vance says there aren't enough of those baby Roberts and maybe women should stay home and be a homemaker and make three or more little Roberts. Don't be a "cat lady," he said. 

Now let's imagine a second family, Jose and Maria Garcia, again both born in Medford, same everything except they name their baby Roberto, who goes to school and college and the military and ends up working alongside Robert operating the "Two Bobs" Heating and Air Conditioning business. Both families are assets to America, right?  

Now imagine a third couple, Ricardo and Rosa Lopez, who crossed the U.S. border from Mexico or Cuba, having fled from drug gangs or communism. They are immigrants, considered illegal now that Trump disallows amnesty claims. They bring a baby in arms, Juan. This third couple finds work, pays income taxes and into Social Security, and enrolls Juan in school. Unlike the other families, the Lopez family isn't eligible for most safety net services, even ones they pay taxes to support. But whatever his birthplace, Juan is a new baby here. If he is allowed to live here legally, out of the shadows, he has equal potential to be valuable to the U.S. over a lifetime of work and paying taxes, both producing and consuming. If the Doe family is an asset to America, and we need more of their baby Roberts, isn't Juan equally valuable? 

As regards the financial cost to society -- cited by Vance and other Republican politicians as the real benefit of the OBBB because it funds ICE so it can better deport the Lopez family -- the three families are not the same. The immigrant family, including baby Juan, is the better deal for American taxpayers. People here without documentation are almost certainly working, and most are paying into Social Security for a benefit they cannot collect. The Center on Budget and Policy Priorities calculated that in 2022 undocumented people paid $25.7 billion in Social Security taxes.

The image and headline below is from Fox News. Yes, Fox.

Fox News built a story around statistics cited by Unleash Prosperity, a conservative policy group. Unleash Prosperity said that undocumented workers are helping keep Social Security solvent. Fox reports:

"Immigrants tend to be net contributors to the public fiscal because they pay payroll taxes but they don't have parents who collect benefits," Unleash Prosperity co-founder and economist Steven Moore told FOX Business. "Their children pay for their benefits."

There are good reasons for the U.S. to control immigration. Disorder disrupted communities. Life in the gray area incentivizes illegal, under-the-table employment. But Republicans are trying to save the Big Beautiful Bill by claiming that we will save money by deporting immigrants. We won't.  

A Norwegian baby

The real issue for Trump isn't immigration. It is what kind of people are the real Americans. Do Americans feel differently because that second family -- also born in the USA -- is Hispanic and therefore "less American."  Are their children less welcome to be the future of our country?

The immigration issue isn't about money. The money issue cuts in the other direction. The issue is about blood, language, and ethnicity. Most Republican politicians are reluctant to say it aloud because it sounds racist. Trump says what his supporters think, but are embarrassed to say. That is part of his political appeal. Trump said he wants immigrants to come from Norway.

[Note: To get daily delivery of this blog to your email go to: https://petersage.substack.com/ Subscribe. Don't pay. The blog is free and always will be.]

Extortion

Paramount, parent of CBS, settles a lawsuit with Trump. It is a win for Trump. 

One could call it use of leverage. Or hardball. Or sharp business. I think the most honest word for it is extortion. 

It sends a chilling message. That is the point.

Trump accused the TV show 60 Minutes of unfairly editing an interview with then-candidate Kamala Harris. He sued for $10 billion, then changed it to $20 billion. The lawsuit was ridiculous on its merits, and easily defendable as a matter of First Amendment free speech and freedom of the press. The Freedom of the Press Foundation called Trump's lawsuit "beyond frivolous." But after his election, Trump appointed a new head of the Federal Communications Commission, Brenden Carr, who promptly announced a probe of a CBS-owned New York affiliate TV station. That probe gummed up the works of a multi-billion dollar planned sale of Paramount, the corporate parent of CBS and 60 Minutes, to Skydance Media.

That was the squeeze. 

Paramount capitulated. Settling the lawsuit had nothing to do with the merits of the case. It had everything to do with Trump using the government regulatory power to interfere with the planned sale of the parent company. The extortion was so naked, and Trump's legal claim so weak, that the payment was widely described as a simple bribe, a $16 million payment to Trump for nothing other than an action by his government. 

This billboard ran in Times Square, depicting Paramount owner Shari Redstone, handing cash to Trump.

A deal this flagrant needs a perfunctory cleanup. Paramount issued a statement claiming the settlement was "completely separate from, and unrelated to, the Skydance transaction and the FCC approval process." No one believes that. The bribe issue was addressed by making the settlement checks to Trump's attorneys and to the Trump presidential library. See? No money to Trump, at least not directly. Trump's spokespeople helped with a pretext of their own: "CBS and Paramount Global realized the strength of this historic case and had no choice but to settle." No one believes that, but we aren't supposed to believe it. It is just for show.

This is a big win for Trump in the form of money for the Trump presidential library, but more importantly for the precedent and chilling effect. Every media organization intersects with government regulators somewhere -- in TV licensing, in financial transactions, in antitrust matters -- so everyone is vulnerable. Trump demonstrated that he will make pretextual claims backed by the power of the federal government. The fact that Trump's 60 Minutes claim was frivolous is a feature, not a bug. It shows that there is no "safe harbor." Trump could strike anywhere and over nothing, and he has the tools of the Justice Department and cooperation of the regulatory agencies. 

We see a pattern here. Random, pretextual, apparently arbitrary use of presidential power is a feature. In immigration detention, ICE picks up and in a single day deports a long-standing,well-behaved resident who is thoroughly integrated into her community. Why her? It sends a message that no one is exempt. There is no safe harbor. 

With universities, the sudden announcement of cuts of medical research grants sends a message. There is no university program so valuable and popular in the public mind that cutting it is beyond Trump. So, universities need quick action: Examine your systems and clean them up. Rename and cut programs that mention diversity or inclusion. There is no safe harbor. If Trump will try to squash Harvard and medical research he would go after anyone.

Federal employees -- even already understaffed FAA flight controllers and forest fire fighters -- can suffer instant new reduction-in-force orders. One need not have done something controversial like enforce an environmental rule or deny a drilling permit or perform an IRS audit on a friend of Trump. Anyone can be fired. Keep your head down. Don't risk coming to Trump's attention. His department heads are on the lookout and they want to be pro-active. There is no safe harbor. 

Cruelty, fear, and arbitrariness are features. Even if it is an admitted mistake of identity or guilt, you might get sent to a hellhole in El Salvador or Alligator Alcatraz, and Trump will try to keep you here under some sort of colorable pretext. He will claim whatever he wants, and there will be hell to pay.

Don't disappoint him. Anticipate his whims.

[Note: To get daily delivery of this blog to your email go to: https://petersage.substack.com/ Subscribe. Don't pay. The blog is free and always will be.]

The Jim Crow compromise on immigration

Only a minority of voters want immigrants here illegally to have a path to citizenship.

Most Republicans want immigrants deported. 

I wrote today's post after reviewing a report  published by the Pew Research Center on June 17. They sampled Americans on their opinions relating to immigrants. The Pew people have a good reputation for non-partisan fairness.

I came of age in the 1960s. The Civil Rights revolution was the great social triumph of my youth. I experienced it as American redemption. We had failed to live up to our ideals of liberty, justice, and equality for all, and then America changed itself. We overcame our past, with new laws and new social norms on the treatment of Native Americans, Blacks, Asians, and women. No more second class citizens. The Pew poll is a wake-up call to me. 

 A significant minority of my fellow Americans are comfortable with deporting immigrants who are here illegally. Republicans who want deportation of all immigrants are a majority of a political party which commands a majority of both chambers of Congress and the White House. They have electoral legitimacy. Trump has the power to do mass deportations. There is also a significant swing group of voters, people "in the middle," who want to deal with immigrants by keeping them as non-citizens. That may explain why Trump and Republican politicians advocate a change in birthright citizenship. It fits a larger idea. If adult immigrants are perceived as best kept as a non-citizen underclass, then their children can be as well. Immigrants from Latin America and Asia aren't really "us," and never can be, so let's not make them "us" by some unfortunate language in the 14th Amendment. It is the 21st century's version of the Dred Scott decision.

Trump is conspicuous in using presidential power to please his team, not the whole of the country.  Let his team drink liberal tears; they love it. Some 59 percent of Republicans want undocumented immigrants deported. An additional 22 percent want to keep them here, but as a permanent non-citizen workforce. That totals some 80%. 

Only 36 percent of Americans want what Democrats speak of as their goal for immigration peace, a "path to citizenship." Democrats mis-read Hispanic voters on this issue. A significant number of Hispanics share the Republican position; 14 percent of Hispanics want deportation, and another 36 percent want permanent non-citizenship. 

The chart below records growing public disappointment with Democratic policy on immigration between 2017 and the present.

Trump succeeded in shaping the public worry about mass immigration from countries other than Western Europe. He described immigrants as replacing us. They are changing our blood, changing our language and culture. They are parasites. His attack on diversity, equity, and inclusion lays bare the racial/ethnic component. He positioned this as White people under seige. Assert their centrality as the people who own and control the country, while they still have the numbers to do so, a majority that is slipping away. If there is work to be done, let it be done by the people already here, or by hired hands on contract, not by people who invite themselves in as partners..

The Pew poll gives us a sense of the country's mood. I am probably an outlier, more pro-immigration than are most Americans.  As always, there is lots to dislike about Trump, but he isn't out of touch on this issue, not with his Republican base.

[Note: To get daily delivery of this blog to your email go to: https://petersage.substack.com/ Subscribe. Don't pay. The blog is free and always will be.]

Can the courts stop a lawbreaking president from taking away people's rights? Yes. But only one plaintiff at a time.

     "The Court took the case specifically to decide the proper scope of injunctions that command federal officials to abide by the law." 

                   Scott Nelson

White House media announcement

Democrats didn't like that anti-abortion plaintiffs would file cases of national significance in, of all places, a federal district court in Amarillo, Texas. The one judge in that district is an arch-conservative and abortion opponent. The plaintiffs were forum shopping. Now it is Trump's turn to be unhappy. Trump did not like that multiple judges in federal courts across the country issued nationwide injunctions blocking enforcement of his executive orders, including the one blocking the 14th Amendment's birthright citizenship. 

I asked Scott L. Nelson if he could explain what the Supreme Court did this week. Unlike many of my guest post writers, Scott Nelson is not a college classmate. He is a decade too young to be in the class of 1971.  He is a retired attorney with Public Citizen Litigation Group, a public-interest law practice in Washington, D.C., where he specialized in Supreme Court practice. He was a law clerk for Supreme Court Justice Byron White from 1984-86 after graduating from Harvard Law School, where he was president of the Harvard Law Review. He was born and raised in Medford, Oregon, and currently lives in Ashland, Oregon.

Guest Post by Scott Nelson

Even well-informed people who knew the Supreme Court was considering a case involving a challenge to President Trump’s executive order purporting to eliminate “birthright” citizenship may have been surprised Friday when the Court issued its opinion in the case without deciding whether Trump’s order is unconstitutional. Instead, the Court decided something else altogether: that federal courts can’t issue orders designed to protect people who aren’t parties to the cases before them from unconstitutional or illegal actions by federal officials.

Those who study the Supreme Court closely, and especially lawyers well versed in the issues posed by cases challenging federal government actions, weren’t surprised either by the Court’s focus on a procedural issue rather than the underlying constitutional question, or by the way the Court decided that issue. The Court took the case specifically to decide the proper scope of injunctions that command federal officials to abide by the law, and a number of Justices in the Court’s conservative majority have long sent signals that they are inclined to rein in the power of lower courts to issue broad, “universal” injunctions that extend beyond the parties to a case.

The Court’s decision will significantly affect cases brought against Trump’s executive orders, as well as the actions of future Presidents, and will make the process of settling questions of national importance slower and more cumbersome. In the end, however, the decision won’t stop courts from hearing challenges to unconstitutional executive branch actions, and the Supreme Court will ultimately be able to provide definitive answers that will settle issues such as birthright citizenship for the nation as a whole. A case involving the merits of the birthright citizenship issue, in particular, is likely to reach the Court sooner or later, and a decision by the Court on that issue will be binding nationwide even if it does not result in an injunction that, as a formal matter, applies to people other than the parties to the case.

To help explain all this, it’s useful to briefly review what this case (called Trump v. CASA, Inc.) was about. The 14th Amendment to the U.S. Constitution says, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Based on its words and on Supreme Court decisions that interpreted it long ago, the 14th Amendment has been understood for many decades to mean that children born to immigrants on U.S. soil are citizens even if their immigrant parents are not—and even if the parents are here illegally. A birth certificate showing a person was born here has long been good enough to get her a U.S. passport and entitle her to vote and exercise all the other rights and privileges of citizenship.

However, some lawyers and others aligned with the Trump Administration’s ideology have argued that children of aliens who are not lawful permanent residents are not “subject to the jurisdiction” of the United States and thus should not be considered citizens under the 14th Amendment even if they were born here. Shortly after taking office, President Trump signed an executive order that adopted that view and directed that the federal government no longer accept birth in the United States as proof of citizenship if neither parent was a citizen or lawful permanent resident.

A number of individuals, organizations, and state governments filed several lawsuits challenging the executive order and asking the courts to issue injunctions preventing federal officials from taking any action to implement it. In three cases, the lower courts issued preliminary injunctions that did just that, based on the courts’ determination that the plaintiffs were likely to succeed in their challenges and that the injunctions were necessary to prevent irreparable injury to the plaintiffs during the time it would take the courts to reach a final determination of the constitutionality of the executive order. Those injunctions didn’t just order federal officials not to enforce the executive order against the specific people who brought the lawsuits; instead, they said that the order couldn’t be applied to anyone, anywhere in the country.

The federal government asked the Supreme Court to take up the cases not to decide the constitutionality of the executive order, which the lower courts themselves hadn’t finally decided, but only to consider whether an injunction can be designed to protect people who aren’t parties to a case in circumstances where a narrower order would fully protect the people who are parties. The Supreme Court agreed to take the case because many of the Justices had become concerned in recent years about individual federal judges issuing “universal injunctions” that control how federal officers must behave toward everyone in the country. As Justice Barrett noted in her opinion in the Trump v. CASAcase, the Biden Administration had also been the target of many such injunctions (often issued by federal courts in Texas), and the Justice Department under both Democratic and Republican administrations had argued that such injunctions are improper.

To understand the issue clearly, consider a hypothetical lawsuit brought on behalf of Jane Doe, a child born in the United States to two undocumented immigrants. Jane wants to establish that the federal government must treat her as a citizen and issue her a U.S. passport so that if her parents leave the country and take her with them, she can return here when she is old enough to live on her own. She asks for an injunction that prevents the government from applying the executive order to her or to anyone else born in the United States. The government’s position in the Trump v. CASA case was that if Jane succeeds in establishing that the executive order is unconstitutional, an injunction that just tells the government to treat her as a citizen will remedy her injury. In the government’s view, there is no reason for the court in her case to issue an injunction that also applies to someone who isn’t a party to the case—whether it’s her cousin, or a neighbor who lives down the street, or a stranger on the other side of the country

There were lots of arguments both ways on that issue, but the key point is that the Supreme Court majority adopted the Trump Administration’s position. In its own words, what the Court ruled is that an injunction can’t be “broader than necessary to provide complete relief to each plaintiff with standing to sue.” In other words, to go back to our Jane Doe hypothetical, a court can issue an injunction telling the federal government it has to treat Jane Doe as a citizen, but it can’t issue an injunction requiring the federal government to treat Richard Roe (who isn’t a party to the lawsuit) the same way, because that isn’t necessary to provide Jane with complete relief: In the view of the Supreme Court majority, it’s no skin off Jane’s nose if Richard doesn’t get a passport.

The consequence of the decision is that it will be a lot more difficult to get broad remedies quickly for unconstitutional actions by the federal government. The decision will allow people who face imminent injuries to get orders preventing the government from treating them unconstitutionally, but the government will be able to continue to treat other people who aren’t parties to a case unlawfully. That means challenges to unlawful actions are likely to require more litigation, and it will take longer for those cases to result in decisions that effectively put an end to abuses of power.

The decision doesn’t, however, make effective challenges to unconstitutional federal policies impossible. You may have heard or read news accounts saying the decision means that, to put a stop to the unlawful federal policy, each person affected will have to bring their own individual case. That view is an exaggeration, for three reasons.

First, the decision recognizes that things are different when a plaintiff brings a class action seeking injunctive relief on a classwide basis. If the requirements for a class action under the rules of the federal courts are met, a court in the class action can issue an order providing a remedy for every member of the class as defined by the court. And class actions are easiest to bring in cases where the defendant has acted toward a group of similar individuals in a way that make it appropriate to grant each class member injunctive relief. To be sure, a class action doesn’t provide universal relief, because only people who are “similarly situated” can be members of the class. But if you think about our Jane Doe example, it would be pretty straightforward to define a class of all persons born in the United States to undocumented parents since the date of the executive order, and craft an injunction that would provide relief to members of that class. Such an order would go a long way toward protecting those threatened with injury by the executive order.

Second, the decision also recognizes that when state governments are affected by unconstitutional federal government actions, remedying the injuries suffered by a state may require relief that affects how the federal government treats everyone in the state. The birthright citizenship order, for example, presents lots of problems for states by effectively requiring them to treat people they regard as citizens as if they are not citizens. Rectifying those problems may require an injunction that affects how the federal government treats everyone in that state.

Third, and maybe most importantly, even if a case only involves an individual plaintiff, and the injunction issued in the case only affects one person, the case can still present an opportunity for the Supreme Court to issue a precedent that is binding nationwide. To go back to our Jane Doe example, suppose the lower courts in her case hold the Trump birthright citizenship order unconstitutional and issue an order requiring the federal government to recognize her citizenship. The Supreme Court would then be highly likely to take that case to review the merits of the birthright citizenship issue. And whatever it ruled on that question would be the law of the land, binding on all federal and state courts and on the other branches of government. Even though the order the Court upheld just affected Jane Doe, the precedent the case would set on the meaning of the Constitution would apply nationwide.

For example, when the Court held in Obergefell v. Hodges that states must recognize same-sex marriages, the specific cases its decision addressed involved 14 same-sex couples in four states, and the result was an order that directed the governors of those four states how to treat the couples who were parties. There was no universal injunction. But everyone recognized that the legal principle established—that the right to marry extends to same-sex couples—applied to everyone nationwide. The same will be true when the Supreme Court ultimately addresses the birthright citizenship order, as I believe it will.

For exactly this reason, the Trump Administration’s lawyers assured the Supreme Court that, universal injunction or not, if and when the Supreme Court decides the merits of the birthright citizenship order, the federal government will follow the Supreme Court’s decision. Of course, the Administration might go back on its word and thumb its nose at the Court. But an Administration willing to do that probably would also be willing to disregard a universal injunction. Either way, disregard of a Supreme Court decision would present a constitutional crisis, and the American people would be unlikely to tolerate such an action by the President.

The bottom line is that Friday’s decision kicks the can down the road, but won’t prevent the Supreme Court from eventually facing and definitively deciding whether Trump’s reading of the 14th Amendment is correct. For what it’s worth, my view is that the Trump order rests on an untenable reading of “subject to the jurisdiction thereof.” Children born in the United States to immigrants, documented or not, are fully subject to the “jurisdiction” of the United States in every meaningful sense of the word and hence are citizens. The plain text of the Constitution, and the chaos that would follow if birth certificates could no longer provide a reliable means of determining a person’s citizenship status, make it unlikely that a majority of the Court will go along with Trump on this issue. But, as we learned Friday, that is a question for another day.

[Note: To get daily delivery of this blog to your email go to: https://petersage.substack.com/ Subscribe. Don't pay. The blog is free and always will be.]

Easy Sunday: Complications in the delivery room

A baby born in Oregon is a U.S. citizen. Simple.

A baby born in Texas may not be. For them, it is complicated.

This was meant to be an "easy Sunday" post, so let's start with the easy ones. Twenty-two states, plus the District of Columbia, joined in the lawsuit to protest Trump's executive order declaring that the U.S. government would not recognize U.S. citizenship of children born after February 19, 2025, unless they met certain conditions. Those are: Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, Wisconsin, and D.C.  For babies born in these states, it's same-old, same-old. Easy.

The Supreme Court's decision this week wasn't about citizenship by birth in the U.S., at least not directly. It was about whether a judge blocking an unconstitutional order by the executive applied nationwide, or only to the parties to the lawsuit in front of the judge. They decided that only the parties would benefit from a judge's injunction. So, in this week's case, the injunction left out the citizens of the 28 states that were not parties to the lawsuit. 

In the other 28 states Trump's order denies citizenship to people born under these conditions:

-- At the time of birth, the baby’s biological mother is “unlawfully present” (with no legal status) in the U.S. and the biological father was not a U.S. citizen or lawful permanent resident.

-- At the time of birth, the baby’s biological mother was in the U.S. with a temporary visa or permit, and the biological father was not a U.S. citizen or lawful permanent resident.

This means that the legal status of the mother needs proving up, which would be easy if the mother has a U.S. passport. Only about half of Americans have one. She needs to prove her legal status some other way.

If her status is unproved, the father's status needs proving up. It is further complicated because paternity might be assumed or claimed, but that, too, needs proving up.

Proving one's legal status is complicated by the fact that conditions of amnesty or asylum have been in transition.

Immigration of large numbers of people from Latin America and Asia triggered a familiar response in U.S. history -- anti-immigrant nativism. Trump promised to reverse everything: deport everyone and end birthright citizenship. "Anchor baby," and "birth tourism" stories generated support for Trump's policy -- at least on principle.

I expect ending birthright citizenship to be a net-negative in practice. It will be complicated and contentious. Administering the new procedures will be slow and expensive. There will be facts to determine. There will be appeals. It will be chaotic or it will be bureaucratic, two bad outcomes.

The current Supreme Court acts primarily like an unelected political body, carrying out a Republican agenda. I expect them to save Trump from himself by deciding the Constitution says what it says, and go back to the prior status quo of birthright citizenship for all. This is a sacrifice play. Trump will rail against the Supreme Court, which will benefit both Trump and the Court. It will inoculate the Court from the claim that they are in the tank for Trump. That will give them better credibility to keep deciding cases in Trump's favor on other issues of greater importance to Trump and Republicans, especially on race, voting rights, gerrymandering, and presidential power to govern without interference from the Congress or courts, and immunity for Trump on any crimes he commits or has committed.

I predict this split in the states won't last long.

[Note: To get daily delivery of this blog to your email go to: https://petersage.substack.com/ Subscribe. Don't pay. The blog is free and always will be.]