[matthewowen]

The problem (which Sotomayor raises in her dissent, pages 94 and 95 of the PDF) is that it may never reach the supreme court:

> There is a serious question, moreover, whether this Court will ever get the chance to rule on the constitutionality of a policy like the Citizenship Order. Contra, ante, at 6 (opinion of KAVANAUGH, J.) (“[T]he losing parties in the courts of appeals will regularly come to this Court in matters involving major new federal statutes and executive actions”). In the ordinary course, parties who prevail in the lower courts generally cannot seek review from this Court, likely leaving it up to the Government’s discretion whether a petition will be filed here. These cases prove the point: Every court to consider the Citizenship Order’s merits has found that it is unconstitutional in preliminary rulings. Because respondents prevailed on the merits and received universal injunctions, they have no reason to file an appeal. The Government has no incentive to file a petition here either, because the outcome of such an appeal would be preordained. The Government recognizes as much, which is why its emergency applications challenged only the scope of the preliminary injunctions

[Tadpole9181]

Wait, doesn't this just... End the constitution as a whole? So long as the current executive wants some unconstitutional thing, they get that unconstitutional thing in every state on their side in perpetuity? The constitution is now... per-litigant?

[eschaton]

That’s the end goal. And to take over the other states too.

[Tadpole9181]

Oh, of course. Because it's federal law, being in a state with an injunction isn't actually a protection. A federal LEO can detain & relocate you, charging you with violating a law in another state where there is no such injunction.

This is a whole-sale shredding of the constitution.

[eschaton]

And everyone needs to recognize and treat it as such, for all it’s worth.

[ggm]

So for example, seeking reproductive rights in one state which is forbidden in another?

Forgive a possibly silly question but in what sense does being "in" Florida mean you are bound by Florida state law when you leave? How long did you need to be in Florida before you became bound by its law? What if you fall pregnant after you left? Can you be in breach without ever having been in Florida, and a LEO can therefore take you there and charge you?

[Tadpole9181]

No, not quite. State laws only apply in that state. They are not technically allowed (but sometimes try) to enforce laws on actions outside of that state. So, in this case, you could not be charged with having an abortion outside of Florida, from inside of Florida, based on Florida law.

But let's look at the birthright case that this ruling comes from.

Let's say Nevada state sues the federal government. The ruling is made from their district court that birthright citizenship is clear and this EO is illegal. An injunction is placed against the EO.

The state of Kentucky does not sue.

Previously, the Nevada court injunction would apply nationally. The EO is unconstitutional. EOs are federal, the constitution is federal. So, clearly, it is unconstitutional everywhere and must be stopped.

The federal government can then go through several layers of appeal to prove that this was a mistake and the EO is legal. All the way up to SCOTUS, who makes the final judgement and cannot be appealed.

What SCOTUS just ruled is that the injunction against the federal government only holds the EO from applying to the specific litigant. That can be a whole state, a group of people, or a single individual. Even though the EO is now ruled unconstitutional in the eyes of the federal court de jure, it is de facto still the law of the land by default to all other entities.

And it gets worse. A litigant cannot appeal to the next court, only a defendant that loses. And SCOTUS only has to address cases that are appealed. There is no mandatory reconciliation process. That means, for an infinite amount of time, individual people will have different constitutional interpretations that require a background of every case that has ever involved them.

So, back to our example. If the federal government loses in Nevada and there is no ruling in Kentucky... What the fuck even happens? Someone is or is not a citizen, that's literally the point behind Dread Scott and Obergfell, but they've contradicted those cases and invented a constitutional superposition.

So, in Nevada a naturalized citizen with non-citizen parents is... A citizen? Because of the injunction? And what if they're in Kentucky, but were born in Nevada? Or vice versa?

But, no, this isn't a state law. It's federal. Which means it doesn't matter what state you're in when you do it, it's still illegal. And federal LEO had the authority to try you in a different location than where you were arrested. So - born in Nevada or Kentucky, where you are now, that doesn't matter. Effectively, you have no citizenship. Again, this is quite literally Dread Scott.

This SCOTUS ruling effectively disables the constitution and dissolves the union of states. I'm not being dramatic, this is also the opinion of Sotomayor.

Curiously, this does not actually extend to other cases. So, say, if McDonalds gets in trouble and an injunction placed against them. That still applies universally.

[ggm]

Oftentimes hard to model this from other nations. Here in Australia we have pretty well understood applicability of federal law everywhere, but when the states started enacting changes in abortion law, voluntary assisted dying, decriminalisation of recreational drugs, it all got a bit messy. Especially since we have non-state territories where enacting laws means .. conditional to the federal government with lower barriers than with the states.

Britain its mostly UK Law, with bits of "no, thats English law, this is Scotland" on top. I emigrated so long ago the national appeals structure has changed and I don't entirely understand when it applies and overrides. But immigration is clearly nation-wide.

I think "birthright" citizenship is pretty alien to most legal regimes. Ireland might be the one people think about in the Europe/Britain context. Used to be a lot of pregnant women flying in late stage. But, thats not to call it wrong or decry what the appeals in the US were trying to do. It was amended into the constitution a very long time ago, and until recently what the current WH is trying to do was seen as "fringe law" but now seems core.

[magicalist]

That should be unconstitutional to either try to prosecute you for actions outside your state or to prevent you from leaving to make those actions, but conservatives are trying!

https://www.texastribune.org/2024/02/09/texas-abortion-trans...

[bluecalm]

That's a good point. I was under the impression that the current administration thinks it can win a case about 14th amendment in case both parents are not legally in US with current majority but if they are in fact not appealing it would mean they think they would lose.