Up Close, with Peter Sage
Observations and commentary on American politics and culture. Now read by 3,000 people every day.
Tuesday, July 1, 2025
The Jim Crow compromise on immigration
Monday, June 30, 2025
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
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White House media announcement |
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.
Sunday, June 29, 2025
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.
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Saturday, June 28, 2025
The power of articulate passion in politics
Zohran Mamdani.
Who? What the heck is going on in New York City?
We see a spark of articulate passion on the political stage. We can learn something.
I began writing this blog almost 10 years ago, back in August, 2015, after my wife and I attended a fundraising event for Hillary Clinton. We each paid $2,600 for the privilege, and we needed to drive to Portland to see her. I stood six feet from her in the lovely garden of a wealthy person's house, on a lovely day. I heard her speak for an hour. She listed her plans and policies, which sounded reasonable to me: sensible, practical, center-left policies. She was a notch or two more liberal than her husband, Bill.
My takeaway, though, wasn't policy. It was about her presence. Her presentation. I noticed that she wore slipper-like shoes, that she stood having her photo taken with guests and speaking for two hours and 15 minutes without touching a nearby stool. She had stamina, something that Trump tried to make an issue a year later. But most important, I noticed that I was somewhat bored by her speech.
I reflected on my reaction. I tried to adjust the scale to account for my own position in the spectrum of voters. I was a fan -- fan enough to have attended a maximum-gift fundraiser. I have attended events headlined by Bill Clinton.
For goodness sake, I had actually paid an artist to paint a portrait of the Clintons back in 1994, a painting that I have had in my living room for 30 years. If I wasn't thrilled by her, who would be, I wondered? There was no excitement or pizzazz in her talk. She was missing something. That convinced me to go to New Hampshire and other early-primary states to watch political speeches by other candidates and to write about them. And so this blog.
I was up close to watch Trump, Rubio, Cruz, Huckabee and over a dozen other Republicans.
I was up close to watch Hillary, Biden, Sanders, Harris, Warren, and over a dozen other Democrats.
I wrote frankly that Joe Biden could read an OK speech from a teleprompter with a weak voice, but that he could not "sell" anything. He sucked the energy out of whatever he talked about.
I don't vote in New York City, and I don't have a feel for the issues of wealth, cost of living, crime, transportation, and livability of the city, so I won't judge Zohran Mamdani as a candidate. He has said things about Israel, Hamas, police, rent freezes, and wealth taxes that I disagree with, and I don't think he is a successful model for Democrats hoping to win majorities in the two houses of Congress or the White House.
But he has something Democrats should observe. He has the spark. He is fast, articulate, and interesting. He looks confident. He can sell. On that scale of political presentation, he is the opposite of Biden. Here is a very short clip of him:
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Click: 36 seconds |
I recognize that governing is not show business. But it is a little bit show business, and Donald Trump is the proof of that. Governing in a democracy is about the will of the people, and that makes the politician's job one of salesmanship and persuasion. We aren't electing a package of policies. We are electing a person who can get us to believe he or she should lead us. A political leader is a salesperson.
Democrats will be on the losing side of elections until they wake up to the necessity of having a candidate that voters find interesting and personally appealing. Again, I don't think Mamdani is the guy. But he has the spark and confidence Democrats should demand in a leader. He demolished poor Andrew Cuomo. New Yorkers overlooked a lot of policy disagreement in order to vote for Mamdani.
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Friday, June 27, 2025
Just deserts
"I don't feel sorry for them if they get sick and then go bankrupt because their Medicaid got cut. It is what they voted for. Let them experience it."
Comment from a Portland, Oregon bleeding-heart liberal
Trump told us what he would do: Lower taxes for the wealthiest. Reduce the Medicaid population.
We asked for it, and we are going to get it. Like it or not.
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Medicaid by Congressional District |
Thursday, June 26, 2025
Panic over women with careers.
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Father Knows Best: Six seasons, 1954-1960 |
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Angelo: student days |
Interestingly, I think there is an argument to bring back the MRS. degree. Just be clear that’s why you’re going to college. Don’t lie to yourself like don’t say “I’m studying Sociology or whatever,” we know why you’re there, and that’s OK, that’s a really good reason to go to college, especially an SEC school. You will find a husband if you have the intent to find a husband at Ole Miss, or at University of Alabama or whatever.
And by the way, we should bring back the celebration of the MRS. degree. You think about it, I say college is a scam, but that is a really good reason to go to college. You have a bunch of people that are single, they’re at the prime of, let’s just say, their attractiveness, the dating pool is as robust as you’re going to find, and they all live together over a four year period. You don’t get much better than that, it doesn’t get better after college, and so yeah you could go learn some stuff that’s fine I guess or whatever, just don’t listen to your professors, but that actually was the reason a lot of women went to college in the 70’s, 80’s and 90’s, and worked, and marriage rates have plummeted since then.
This was Kirk’s answer to a fourteen-year-old at a Women’s Leadership Summit who asked him how college might help her become a political journalist. Think about that. Go to college, pay the massive tuition, and spend the whole time looking around for Mr. Right. Kirk later told the audience that if they weren’t married by 30, their prospects would be grim.
Admittedly, this was a meeting of young women who wanted to talk about living their lives as cultural conservatives, which starts with the premise that a woman is incomplete until she is a wife and mother. But it was also a LEADERSHIP summit. Another participant later challenged Kirk about his views on women and college, arguing that many women meet their husbands through their careers. Kirk finally backed down and admitted that the mission of the summit was “any takeaway you want to have,” a renewed sense of patriotism of “traditional norms and roles,” of “true femininity – not this toxic type.”Why was Charlie Kirk even a speaker at this conference? He dropped out of community college after a short stay. His only qualification for leading an organization of young conservatives is that he has successfully marketed himself as a spokesman for conservative values. None of his ideas are original, in fact they are retrograde and geared toward recreating 1950s America. And yet, he was condescending and arrogant enough to stand up in front of 3,000 young women at a leadership conference and mansplain that the best reason for them to go to college is to find a husband. Today’s conservative men are so shameless, they aren’t embarrassed to say this stuff. And by the way, his claim that the “MRS” degree was common in the 70s, 80s and 90s is hogwash. It hasn’t been a thing since the 1950s and early 1960s. I went to college in the 70s and finding a husband was the last thing on my mind.
As a feminist – i.e. someone who believes in the equality of men and women – and a retired lawyer who is married and child free by choice, I obviously bristled at Kirk’s advice, which completely dismissed women’s value in the workforce. But from what I have read, the thrust of the summit, even from female presenters, was to sell these young women on marriage and motherhood as the first priority for conservative women. Career comes later, if at all. They expressed pity for single women who were “trying for the corner office.” They threatened a lonely, unfulfilled life for any woman who put her career first during her reproductive years. Yikes!
Sisterhood is powerful, and I do not judge other women’s choices. Nor do I want them to judge mine. No doubt it is hard in 2025 for a woman to choose the right path, when there is so much opportunity. When you add so-called conservative values to the mix, it’s natural that a lot of these young women would choose the “Godly” path and make marriage and motherhood their priority. Many of them don’t want to work outside the home, and I respect that. Really. But I worry about them, just as they worry about the women pursuing successful careers who may miss out on marriage. So I would ask them: Is it possible to live comfortably on one income where you want to live? Are you a natural at homemaking, or all thumbs in the kitchen? Are you confident that at 18 or 20 years old, you will choose the life partner who will truly be for life? Will you be ready to settle down at 23? If you were suddenly single, would you be able to support yourself? If, in the process of getting your MRS. degree, you excelled in your classes, do you have a plan to use your talents outside the home later in life? I hope they’re thinking about these things, and not just about putting dinner on the table for the Charlie Kirks of the world.
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Wednesday, June 25, 2025
What do Millennials want?
"Don't you understand what I'm tryin' to say?And can't you feel the fears I'm feelin' today. . .And you tell me over and over and over again, my friendAh, you don't believe we're on the eve of destruction."P. F. Sloan, songwriter, sung by Barry McGuire, "Eve of Destruction," 1965
Boomers had their chance. We were warned.
Guest Post by Rick Millward
A Millennial’s View.
Botched Election. Israeli Genocide. Inflation. Student Loans. Climate.
I’m in conversation with a 30-something student, a Ph.D. candidate, self-described Progressive, a Millennial who feels, like many younger Americans, deeply disillusioned with Democrats and outright furious at Boomers. While some Democrats default to finger-pointing and blame-shifting, these younger voters reject policy nuance and strategic justifications that led to the rise of Trump and the GOP. To them, it’s not just a tactical failure—it’s a moral one. The Biden nomination was, they say, a betrayal; only Harris’s presence kept them engaged at all.
As we talk, I struggle to respond. My detailed explanations of geopolitical realities sound empty. Pointing out that Republicans are worse isn’t persuasive; they already know, but find the difference negligible. This isn’t youthful idealism. These voters came of age during 9/11, two recessions, COVID, inflation, and now see a system rigged for the wealthy.
They view Republicans as an unstoppable machine wrecking their future, and Democrats as ineffectual, if not complicit. The American Dream feels dead. Issues they care about, especially climate, are met with delay and denial. They see GOP cultural pandering around gender, performative patriotism, and religious posturing as absurd distractions, and they reject the idea that systemic racism is overblown. Their universities are compromised by investments that betray their values, all while trapping them in decades of debt. Many are incensed by U.S. support for Israel, which they equate with endorsing genocide.
Is it any wonder some are voting “against” their own interests? The shift of younger voters, especially Latino and Black men, toward the GOP may be less about alignment and more a protest vote, which in turn makes things worse. Republicans have the money; Progressives have the numbers. But numbers are powerless if disinformation overwhelms them. And conservative efforts to discredit media fuel a toxic online landscape where truth, lies, and fantasy blur.
The best arguments I muster aren’t convincing:
(1) GOP rhetoric aims to demoralize. Resisting it is essential.
(2) Being Progressive, by definition, requires optimism.
We do agree Democrats need a strategy to counter misinformation with facts, loudly and transparently. To win back youth and minority voters, they must stop taking them for granted and fully embrace issues like climate, justice, and inequality.
As we part, I’m left feeling unable to defend Democrats or my generation. The world is complex, and the torrent of disinformation favors simplicity. Still, that same difficult hope, though grim, requires that we try.
Update: Since writing this, youth support for Republicans is dropping. They’re paying attention.
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