The Fire Next Time

The irony of Donald Trump saying our Founding Fathers are "spinning in their graves" when he's installed the richest man in the world to run our government, and is writing unconstitutional executive orders while actively disregarding the judicial branch.

Our Founding Fathers… pic.twitter.com/wewkjZXWdC

— Art Candee 🍿🥤 (@ArtCandee) February 16, 2025

Well, he’s trying hard to get there.

This is how the non-originalist Commerce Clause argument against Obamacare based on the activity/inactivity distinction, invented from whole cloth, started. It won before SCOTUS. This will give judges and Justices cover to adopt the absurd Trump administration view of birthright citizenship. 

The Wurman/Barnett op/ed is the next step in normalizing the frivilous birthright citizenship argument. In a few months, conservatives will contend that the only reason liberals didn't take the argument seriously is because of their blindspots. By then, judges will feel comfortable endorsing it.

It’s an argument. Certainly legal hackery is always a possibility, especially in the highest court in the land. But Dobbs only undid Roe, Loper only undid Chevron, and Trump v US instituted a ridiculous policy that will be damned hard to implement since the central tenet, “official duty,” can’t be determined without a string of presidential criminal prosecutions. Which, yes, Trump may have inspired, but it seems unlikely. So it’s even more unlikely the Supremes will soon have to weigh competing opinions on what the pivot point of their ill-begotten doctrine means. So is it bad? Yes. Is it functional? Not really.

Oh, Trump thinks it makes him invisible and bulletproof; but that’s an accident of history. He’s an old man. There won’t be much appetite to prosecute him again in four years. And unless he steals documents again (a live option, admittedly) or sponsors another assault on Congress, there won’t clear grounds to. (And stealing documents is not even arguably an “official duty”).

All of which is to say, unraveling Wong, or inventing grounds to rescind jus soli citizenship for one class of persons, introduces massive problems to constitutional jurisprudence. Problems like creating a category of “outlaw” for which some constitutional provisions don’t apply. (And a huge constitutional contradiction, as it has been pointed out that many slaves were brought to this country illegally, and were, by the pre-14th constitution, never citizens anyway. The 14th explicitly made them citizens, however their ancestors arrived.) You really can’t slice that baloney so thinly it only has one side. Not without also discarding the late 20th century legal doctrine that race is a pernicious category. Because clearly the argument against the 14th is that it shouldn’t apply to non-whites.

Nobody calls people like Elmo “illegal immigrants.” I mean, white people may overstay their visas, but that doesn’t make them “illegal,” does it? Certainly not according to Tom Homan (who, btw, is a dumbass.)

Adopting the argument of Trump or MAGA would set off a bomb in Constitutional jurisprudence that would wipe the infamy away from Dred Scott. Not to mention call into question the real legitimacy of the court: to make rulings that have even an arguable basis in law.

Even as I type that I realize that, still, it could happen. But I think at worst it would be a 5-4 decision, with the 5 upholding precedent, and denying MAGA its constitutional napalm.

But, as the old curse has it: may you live in interesting times.