Not So Fast, Stephen Miller

Trump’s Deputy Chief of Staff is off to a bad start in the courts.

Photo by Brandon Bell, Getty Images:

It was supposed to be a week of shock and awe, with a flurry of executive orders issuing from Trump’s Resolute Desk, his signature Sharpie pen brandished in his tiny grip, his evil advisor standing behind him, rubbing his hands like Mr. Burns.

Among those orders were one stripping the children of immigrants of their legal status by denying birthright citizenship and another shutting down Biden’s program of admitting migrants from certain designated countries. On Thursday evening, in an extension of the administration’s all-out attacks on immigrants, a memo signed by the acting head of the Homeland Security authorized ICE officials to begin rounding up and deporting people who had been legally admitted to the U.S. under Biden-era programs. This would impact around 1.4 million people.

Stephen Miller, who is Deputy Chief of Staff for Policy and Homeland Security Advisor to Trump, was salivating at the prospect. Back in September, he’d taken aim at Biden’s program, posting on social media, “Here’s an idea: Don’t fly millions of illegals [sic] aliens from failed states thousands of miles away into small towns across the American Heartland.”

He was referring to places like Springfield, Ohio, where Trump and Vance falsely accused Haitian immigrants of eating their neighbors’ dogs and cats—a claim that went wide after Trump repeated it during his debate with Vice President Kamala Harris.

I’m happy to report that things aren’t going as planned for Discount Goebbels, as Miller is widely known on the internet. Among a volley of other lawsuits, four states filed in federal court to block Trump’s executive order, which had declared that children born on U.S. soil of undocumented immigrants would not be considered citizens. Yesterday, a district court judge in Washington agreed and issued a temporary restraining order.

The new administration also faces an ACLU lawsuit over its rule granting ICE fast track authority to deport over a million immigrants without a hearing. From what I understand about the rule and know of the Constitution and applicable law, the administration’s policy is not likely to withstand judicial scrutiny.

It’s encouraging to see the blue states and the civil rights lawyers hitting back fast and hard. And the good guys are likely to prevail in these crucial initial rounds. Let’s discuss why that is.

“It just boggles my mind.”

There are no less than six lawsuits already challenging Trump’s birthright citizenship executive order. One of them is massive and involves 22 states. The one that went first, however, was filed by just four states: Washington, Arizona, Illinois and Oregon, all of which have Democratic governors and state attorneys general.

If the White House was hoping that the judge the litigants drew—an 84-year old Reagan appointee named John Coughenour—would be amenable to their specious arguments, they were sorely disappointed.

“Frankly, I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order. It just boggles my mind,” said Judge Coughenour.

The heart thrills to hear it. And this was really not a close call. As you’ll see from the discussion below, the argument by the Trump White House was both cynical and nonsensical.

The text of the 14th Amendment grants automatic citizenship to people who are born here and are “subject to the jurisdiction” of the United States. The lawyers for the government tried to argue that this somehow exempted the children of undocumented migrants, whom they argued would somehow not be subject to the jurisdiction of the U.S., at least as far as citizenship goes.

The judge pounced on this argument. He asked, quite astutely, whether these children would be subject to U.S. law if they committed a crime. The lawyer for the government responded that they would be with respect to the laws of this country, but not with respect to the citizenship clause of the 14th Amendment.

“Citizenship is different,” the government lawyer said with a straight face.

“I’ve been on the bench for over four decades,” the judge said in response, incredulity seeping from him. “This is a blatantly unconstitutional order. Where were the lawyers when this decision was being made?”

(Narrator: These are Trump lawyers. They will tell their boss whatever he wants to hear.)

As part of my analysis of Trump’s executive orders in my piece earlier this week in the Big Picture substack, I noted that the Supreme Court has addressed this very question of birthright citizenship, indeed as far back as 1898 in the case of U.S. v. Wong Kim Ark. That decision unequivocally held that citizenship is a right of U.S.-born children of immigrants, including those who leave the country and are being denied reentry because of their race, in Wong’s case under the Chinese Exclusion Act.

The Wong Kim Ark Court also analyzed the meaning of the words “subject to the jurisdiction” of the U.S. and gave an example of when that might not be the case. It found that Wong’s parents were “not employed in any diplomatic or official capacity under the Emperor of China”—meaning they were in fact subject to the jurisdiction of the U.S. and Wong was not some child of Chinese diplomats here under a treaty. Therefore the Fourteenth Amendment applied, Wong was born on U.S. soil, so Wong was a citizen.

Trump’s attorneys plan to appeal, but that will take time, and until and unless the decision is overturned (which I believe is unlikely, no matter how far-right radicals on the Supreme Court might try to twist the 14th Amendment), the administration must treat all U.S. citizens as citizens, irrespective of the immigration status of their parents.

Less due process than “a traffic ticket”

There’s also a glaring deficiency in the rule and the memo authorizing ICE to start deporting the some 1.4 million migrants lawfully admitted under Biden-era immigration programs: They purport to allow deportations without any hearing whatsoever. And that, as the ACLU’s lead counsel on the case, Anand Balakrishnan, noted, “is less process that people get when they get a traffic ticket and with far greater consequences.”

It doesn’t take much to see that summarily rounding up and deporting anyone whom the authorities suspect of being an undocumented migrant—and doing so without a hearing before a judge—is a clear violation of due process.

Imagine, for example, that you are in school or church or a pub, and ICE suddenly arrives outside with vans. They bust down the door and announce they are taking everyone in, and they then send you to a detention center, and later to a militarized camp, all under authority of President Trump.

But say also that you happen to be a U.S. citizen, even a veteran of the U.S. armed forces, but when you try to tell them that they won’t listen and they haul you off anyway, no hearing, no judge, no due process.

If that sounds terrible and illegal, it is. If you think it can’t happen, it almost did, just last night in fact in Newark, New Jersey. According to a local news report, ICE agents raided a local establishment and detained undocumented residents as well as U.S. citizens. They entered without a warrant and detained everyone inside. One of the detainees was a U.S. veteran, who then had the legitimacy of his military documentation questioned.

“This egregious act is in plain violation of the Fourth Amendment of the U.S. Constitution,” said the mayor of Newark, Ras Baraka, referring to the right against unlawful search and seizure. “Newark will not stand by idly while people are being unlawfully terrorized.”

ICE raids like the above happened under Biden, too, to be sure. And sometimes documented immigrants and U.S. citizens were briefly detained. But the new rule and memo expands the scope of such raids exponentially. The raids and detentions will now target huge numbers of people, all of whom came to the U.S. legally. Specifically, as the New York Times explained,

It also appears to give the officials the ability to expel migrants in two major Biden-era programs that have allowed more than a million people to enter the country temporarily.

Those programs — an app called CBP One that migrants could use to try to schedule appointments to enter the United States, and an initiative that let in certain migrants fleeing Cuba, Nicaragua, Venezuela and Haiti — were key pillars of the Biden administration’s efforts to discourage illegal entries by allowing certain legal pathways. Immigrant advocates also worried that the memo could apply to Afghan and Ukrainian immigrants brought to the United States under separate programs.

“President Trump’s draconian decision to fast track mass deportations violates hundreds of thousands’ fundamental right to a fair day in court,” said Donna Lieberman, executive director of the New York Civil Liberties Union, in a statement. Calling the effort “cruel” and “extremist,” Lieberman warned that it would “leave children without parents, families without their breadwinners, businesses without workers, and immigrant communities in shambles.”

Luckily, the ACLU is all over the case. Its lawsuit, filed just after the new rule was announced, correctly argues that all persons in the U.S., and not just citizens, are entitled to due process, and that under express and controlling U.S. law, expedited removal can’t happen without a hearing.

Specifically, in its complaint, filed on behalf of an immigrants’ rights group called Make the Road New York, the ACLU notes that expedited removal without a hearing only applies to noncitizens who are inadmissible on one of two specified grounds: 1) those who sought to procure their status through fraud or false representations, or 2) those who, at the time of application for admission, failed to satisfy certain documentation requirements.

And that’s it. If ICE tries to remove noncitizens on any other grounds, those people are entitled at a minimum to a full hearing before an immigration judge.

The ACLU lawsuit isn’t the slam dunk that the birthright citizen case is. But it has the Constitution and the express language of the immigration laws on its side, and the government has got, well, Trump and Stephen Miller, neither of whom is known for following the laws or respecting the Constitution.

I’m betting that the ACLU wins this round as well as any appeals to the D.C. Circuit. The Supreme Court may ultimately decide to go rogue again, to be sure, but importantly that will take time. If the civil rights and the blue state attorneys can jam things up in favorable venues that happen to adhere to and respect the rule of law, such as Washington State and Washington, D.C., some of the worst excesses of Trump’s immigration policies would be kept in check for years.

And that would be welcome news to immigrant families who have resettled here and are beginning to rebuild their lives.