Supreme Court Rulings on Birthright Citizenship, Women's Sports, and Political Spending

This podcast is brought to you by Altana AI. In a fracturing global order, how do we collaborate more, enforce more, and trade more all at the same time? You build an infrastructure of trust. Altana provides it. Compliance verified at the product level. AI powered visibility. Intelligence shared across borders without compromising sovereignty. The future of trade is trust. Altana, the network for trusted trade.altana.a.a.a. From the opinion pages of the Wall Street Journal, this is Potomac Watch. The Supreme Court closes its term with three big six three decisions, striking down President Trump's order, restricting birthright citizenship, ruling there is no constitutional right for transgender athletes to participate in girls' sports, and invalidating limits on the money political parties can spend to help their own candidates. Welcome, I'm Kyle Peterson with the Wall Street Journal. We're joined today by my colleagues on the journal's opinion pages. columnists Kim Strassel and Alicia Finley. Let's jump right in. Trump v. Barbara is the first case handed down by the justices. Nearly 200 pages in all these opinions. The six three majority opinion, including the three liberal justices written by Chief Justice John Roberts, striking down President Trump's effort by executive order to limit birthright citizenship to people who are in the country temporarily. or illegally. Here is part of what they say in their view of the common law of citizenship in the United States, taken originally from Great Britain. Chief Justice John Roberts writes, The Young Republic attracted tens of thousands of emigres from the old world, Scotch, Irish, French, German, Welsh, and many more, some of whom hope to stay only a short time, others of whom hope to never leave. No matter their intentions, however, they could be assured that their children would be American citizens. by birth alone. So, Kim, that is the background, the majority's view of citizenship, how the founders saw it in John Roberts is telling them that was abrogated by the Supreme Court in the Dred Scott decision and then restored by the 14th Amendment. Justice also pointing at the famed Wong Kim Arc decision in 1898 that Chief Justice John Roberts says recognizes their view of what the 14th Amendment means. Yeah, I mean, this is a decision where the majority, it certainly reached and put in there a great number of arguments for finding for birthright citizenship. The common law reading, Blackstone, obviously going through to the 14th Amendment, noting that the 14th Amendment's citizenship clause mirrored the common law's criteria for citizenship, starting with the territory and entering with sovereign power question. A child must be subject to the jurisdiction of. So they tried to put all this. in historical context, a textual context. I think the dissents are very interesting here because I guess I have a little bit more of Brett Kavanaugh's view in this. And it's interesting. This was kind of, I call it almost like a 5.5 to 3.5 decision. It's not as much 6.3 or 5.4.

But he argued that this should just be handled on a question of statute. He said he thought that was a very straightforward one in a 1940 statute. Title VIII provides a persons born in the United States and subject to the jurisdiction thereof shall be nationals and citizens. And he said the reason it should have been done that way is because he argued, you know what, despite the court's good opinion, despite you can also look at the very weighty and thoughtful dissents. And you can realize, the constitutional issue here is just a lot more complicated. And it really is. I think those dissents are very notable, in particular Clarence Thomas's, which kind of makes the argument, my reading of it, that this ruling, if anything, is a bit dismissive to the populations that he felt were originally encompassed by the 14th Amendment, in particular Black Americans. He argued, you know, that they had fought and bled in their country's wars and were obviously hit. earned their citizenship by that point alone and drew a very sharp distinction from visitors of foreign countries who lacked those bonds and would not be called upon to make their same sacrifices for their countries. So. I think this was a very tough call. I get where the majority got to its position. And again, I think there is some real history there that backs it up. But I think this was a really, really, really just kind of almost a coin flip issue. To the point that Brett Kavanaugh is making about the statute that was enacted, his view is that Wong and Mark set the orthodoxy. for what this means. And so when Congress then use similar language, setting birthright citizenship into federal law, it adopted essentially that meaning. So it's kind of a win for orthodoxy. And the other thing notable to me about the dissents, Alicia, is they don't have a unified alternative view. So Brett Kavanaugh does then go on and say, since we are addressing the constitutional interpretation of the 14th Amendment, he says, would look at illegal immigration and birth tourism as new things that were not contemplated by the framers of the 14th Amendment. So just as we can apply the First Amendment to the Internet, we can apply the Fourth Amendment on search and seizures to thermal imaging cameras and so forth, we could go back and say, Won Kim Arc maybe does not have the complete list of exceptions. And what the It's birth within the territory that establishes birthright citizenship with some very narrow categories. If you are a child of foreign ambassadors in the United States, American Indian tribes, which are kind of in a unique American category. So Brett Kavanaugh suggests that the court could now apply new facts on the ground and add to that list. Clarence Thomas, joined by Justice Gorsuch, he wants to have a domicile requirement. So people who are. are subject to the jurisdiction of the United States and are living here, maybe are qualified for birthright citizenship, but temporary sojourners, travelers would not. And then Samuel Alito, here's his view. The 14th Amendment conferred citizenship only on those children who at birth owe allegiance solely to this country. And so notable to me, Alicia, that there are different views.

on display here in the dissent, but there is not for justices who have an alternative that they are all rallying around. Right. So I think the majority here, I think they reach for the cleanest cut decision that they could arrive at, and that was just to block the citizenship or the birthright citizenship order because it really opens up a Pandora's box of questions about, as you point out, some tourists, people who are temporarily, people who are on. worker visas versus people who have green cards versus illegal immigrants. And then you've got the complications. Well, actually, some people who are illegal immigrants have been here, have been arguably domiciled in the U.S., much longer than people who have green cards and who would have citizenship under the Trump's order. And it gets just very messy, very fast. And then you have the questions about, well, if it applies just going forward, why doesn't it apply retrospective? and these are all questions that I don't think the chief and Brett Kavanaugh for that matter, Amy Coney Barrett really want to wrangle with because they are just so complicated and actually I think to Kim's point, Congress, if it wants to, wanted to. It could limit it for those who are here on tourist visas or the children of those who are on tourist visas. Now, I don't think that that's going to happen because you're going to need 60 votes in the Senate to do that. And I don't see Hopkins would have to get a 60 vote, a super majority in order to enact those kinds of changes. But then again, you know, the framers intended when they devise the Constitution to make it. purposely difficult to enact some kinds of legislations and or constitutional amendments. You know, there could also be a constitutional amendment that seeks to clarify this kind of change rather than doing it by executive order. But again, I think that would just be too difficult. And so I really think the court ruled for pragmatic reasons and just because the jurisprudence on this and then the originalist views are really splintered. And then there are so many different ways to interpret. the historical tradition that undergirds this case. Hang tight. We'll be right back in a moment. This podcast is brought to you by Altana AI. Altana's AI brings governments and businesses into one trusted network. So compliance gets proven. Enforcement gets smarter and goods move faster across borders. Learn more at altona.a.a.a. I'm Matthew Hennessy, the editor of Free Expression, the new daily newsletter from the opinion pages of the Wall Street Journal. Free expression is a little different than what you get in the print paper's opinion section. We've expanded things out a little bit. We have a great mix of columnists, including Matt Continetti, Louise Perry, and Kyle Smith. You also get frequent, sharp contributions from my editorial colleagues. And we publish outside contributors, too, from rock star economists like Tom Sol to real rock stars like John Androsic and David Drayman. You can sign up for free expression by going to the journal's homepage and looking for the free expression tab. We're also on substack.

Twitter, Instagram, threads, and TikTok, if that's your sort of thing. Sign up for free expression today, and we'll see you in your inbox tomorrow. Welcome back. Part of what's driving the majority as well is the breadth of President Trump's executive order. He wanted to limit birthright citizenship not only for so-called birth tourists, people who have no connection to the United States, fly in maybe to some outlying Pacific Island somewhere, give birth and then immediately leave, but also to people who are illegally in the country, even if they've maybe lived here for years or decades, including dreamers. If you are someone who was carried across the southern border as an infant, and now you've lived here for 30 years, even under this domicile test that Justice Clarence Thomas is arguing for, it looks to me like those people have a domicile in the United States. They live here. They don't live anywhere else. Interesting footnote on that point, Kim, here is Clarence Thomas. Because this case presents a facial challenge, and no one disputes that lawful temporary visitors and some illegal aliens are not domiciled here. I would reserve for another day the question whether the children of illegal aliens can domicile here. So he's not even ruling out the idea that... the executive order from President Trump might be legally invalid with respect to people who have lived here for 20, 30 years. Justice Gorsuch taking up a similar point on illegal aliens in a separate concurrence. He says this, if those parents are not domiciled here, where are they domiciled? And if the answer is nowhere, how can we reconcile that conclusion with this court's longstanding recognition that every person is domiciled somewhere? So interesting thought experiment, Kim, if President Trump had issued a narrower executive order just going after this birth tourism problem, I honestly wonder what kind of an outcome we would have gotten at the Supreme Court. Yeah, I think that's a very serious point and the question of whether or not this wasn't a legal and political miscalculation on the White House's part because they decided to go the full maximalist view. And I think it surprises some people to find out that I think that a lot of Americans have this very quaint, lovely notion that most of the cases end up at the Supreme Court just bubble up on their own as there are these disputes out there. But of course, a lot of people actually, they strategize over how to get a case to the Supreme Court. The president has the ultimate power to do that by issuing executive orders. Or we saw it, for instance, in the firing of the FTC commissioner that led to the overturning of Humphrey's executor that was done very deliberately to provoke the Supreme Court to take a case and make a new. ruling. And this was done that way too. And so they had the ultimate power in crafting this order to think through the issues and try to position this in a way that would be most likely to get them a favorable ruling from the Supreme Court, knowing the current players on the court, etc. I think that there's a very good case to be made that if they had

or in some cases, actually, you've had local policies trying to subvert that goal of the Title IX. Now, I think that there was a debate before the case and how this would be reconciled with the Supreme Court's Bostock decision in 2020, which involved Title VII protections in the realm of employment law that prevents employers from discriminating based on sex. In that case, you had Justice Gorsuch and the Chief. rule with the liberals in determining that sex could also apply to gender identity. and sexual orientation. Now, the Brett Kavanaugh tries to delineate Title VII from Title IX, in part by noting that the Title IX's intent was very different and was to protect women's rights to participate in basically women's only sports, so they wouldn't be out-competed by men. Anything that allowed Gorsuch was in the majority in the Bassock, an out allowed him to, so he didn't have to try to reconcile the two, his two kind of a... conflicting decisions. Kim, here's a piece of the dissent by Justice Sonia Sotomayor on behalf of the liberals. pointing to disputes about the scientific evidence, about what advantage, athletic advantage, circulating testosterone levels, and so forth may provide. She writes, to be clear, BPJ ultimate may not be able to show that the science is sufficiently on her side going on to say that neither the district court nor the Fourth Circuit have passed upon any of the available evidence or made the necessary factual findings about the state of the scientific debate. And, Kim, to my mind, That suggests that the liberals want to throw this to the courts and experts. But it seems like there would be practicality problems because every individual athlete's treatment might differ. That treatment as some of the briefs in these cases might change over time. You know, circulating hormone levels might change over time. How are states supposed to evaluate that and monitor that? And then you would end up with dueling experts in the courts below saying this particular athlete, I can swear, has no athletic advantage. And you'd have another expert on the other side saying, well, you know, look at bone density and so forth. It suggests to me a position on this that would become pretty impractical, pretty fast for states that are trying to make this work just on the ground in terms of, you know, the sporting leagues for particular sports and particular athletes. Yeah, this gets to one of the central arguments that the plaintiffs were making here. Now, I mean, Brett Kavanaugh, begins this opinion by noting that if you're just looking at the plain language of Title IX and how it was obviously interpreted and why it was put in at the time, he writes, you know,

all the language, it cannot plausibly be interpreted to refer to anything other than biological sex. And even some of the plaintiff's lawyers admitted this as much, too, they had to. Title IX regulations allowed for separate sports teams precisely because of the inherent physical differences between biological men and biological women. But one of the arguments that the plaintiffs made was that, well, okay, but we took... puberty blockers. And so our sort of biological situation is similar. And this is where Sonia Sotomayor is trying to sort of keep the argument going. And she wants the courts to be able to ultimate arbiters of those questions. I agree with you, Kyle. And I think that the majority in this case understood an incredible hazard of having that situation come into play and how you'd have the courts all over. I mean, could you imagine it would just be this sort of like night. on a case-by-case basis. But Brett Kavanaugh... as a result dismisses that. I mean, Sotomayor continues to go on about it. But he says in the decision, the text of Title IX and amendments to it and the regulations around it just do not support the argument. His writing here is they do not speak to that issue in a way that could properly be interpreted to require schools to allow biological males to participate in women's and girls' sports. And the reason some of this might all come up to is let's bear in mind that what this decision found, is that the legislatures here, in this case, West Virginia and Idaho that had passed these laws, that they are allowed to say only girls can take part in girls' sports. The question of whether or not Title IX or the Equal Protection Law outright prohibits any boys from playing in Title IX sports is a different one and may well still come back up to the courts. Hang tight. We'll be right back after one more break. This podcast is brought to you by Altana AI. Altana's AI brings governments and businesses into one trusted network, so compliance gets proven, enforcement gets smarter, and goods move faster across borders. Learn more at altona.a.a. Altona. Don't forget, you can reach the latest episode of Potomac Watch anytime. Just ask your smart speaker, play the Opinion Potomac Watch podcast.

From the opinion pages of the Wall Street Journal, this is Potomac Watch. Welcome back. Let's save some breath for the third case announced. This is NRSC versus FEC, six justices invalidating some campaign finance limits at the federal level. The opinion again by Justice Brett Kavanaugh. This involves coordinated spending. So as the opinion lays out, the National Committee of a Political Party may spend from about $130,000. to $4 million in coordination with an individual Senate candidate. There are different limits for House candidates, presidential candidates. And Alicia, the Supreme Court now saying that those limitations are invalid under the Constitution. What do you think the import of this decision is? Right. So the Supreme Court essentially overturned a 2001 precedent that was brought in Colorado or known as Colorado, too, because there had been a preceding. case that was similar in posture. And what the Supreme Court essentially did was applied its previous precedence that includes all the way going back to Buckley v. V. Vallejo in 1976 saying that the only justifications for any kind of restrictions on spending limits in campaigns is to minimize the appearance of corruption. And here that justification actually is not. tenable because Congress has imposed all kinds of other limitations to prevent the appearance of corruption or the corruption in fact. And that includes the amount that donors can earmark for particular candidates when they contribute to campaign committees, disclosure requirements, and the contribution limits to the candidates themselves. So the Congress has kind of taken a belt and suspenders approach. And not only that, the original justification for opposing or enacting these coordinate or limits for candid party spending was basically just to get money out of politics. And Congress was actually quite candid when it. did that. The problem is that the Supreme Court's precedent for the last 50 years that said this doesn't fly under the First Amendment. Now you ask, well, what is the actual practical effect of the Supreme Court's decision? Well, it remains to be seen. But one argument that was made during this case was that political parties have become weaker in recent decades because of these kinds of restrictions on spending between the candidates and the parties that the campaigns or the party committees can't act. actually control the messages as well, and the candidates can't campaign as effectively if they were able to coordinate with the parties. And I think there's a lot of truth to that. Now, I don't think this is going to miraculously solve the problem of the weakening parties, which also probably has to do with just the kind of general more fragmentation, polarization that we've seen.

But I think it could at least help level the playing field with the individual donors and super PACs that come in to support any individual candidates. Maybe you may get some, you know, less crazy candidates in Congress. Hopefully, I don't put my... I'm not going to bet on that, but that is the hope. But, Kim, the argument for a long time from the right has been that this effort to get money out of politics has not succeeded. It has simply gotten money out of the parties where it is accountable and coordinated and into less accountable and less coordinated groups like these PACs and super PACs. Again, the limits under this law vary by state and by office. But hear from the Supreme Court opinion again, right now they are limiting coordinated spending. to between about $65,000 to $130,000 in coordination with an individual House candidate. So that means the Republican Party, the Democratic Party, cannot spend more than about $130,000 trying to get its own House candidates elected in coordination with those candidates, which is part of how you get this world where there is tons of money flowing through these third party outside groups where the candidate and the party can say, well, you know, we're not responsible for that. That's by SuperPack. What super PAC so and so. And it would be a healthy development to my mind if more of that money was flowing. through the parties that have an institutional interest in their brands and in the future candidates, not only the people who are on the ballot right now in any given election. As a political geek and somebody who's completely fascinated with the... structural mechanics of politics and how it affects the dynamics in the country. This is my favorite opinion of the entire Supreme Court term. And again, I'm a total geek and I get that. I'm actually even a little bit more optimistic than Alicia that it could have some very good effects for the body politic as a whole. I love that the court recognized that one of the arguments of campaign finance law these years was that there was concern that the parties would become too powerful. We've seen the exact opposite. And for some of us, we actually sort of trace the diminution of political party power as a main source of almost everything that people hate about politics these days. You know, you hate all those shady super PACs. You hate the fact that most of the people who run for the Senate these days are billionaires. And that's because they can self-finance are the only people who can self-finance and don't have any real limits on their spending. You know, you hate the polarization. that is in no small part because parties have utterly lost the ability to help push and nominate and get elected saner candidates who they know will actually appeal to broader groups of Americans. Most of the looniness has greatly rooted in this terrible experiment we began all these decades ago thinking that we could manage free speech because that's essentially what spending in politics is. It's free speech. And the court has already read.

recognized some very strong First Amendment principles in terms of spending, at least. We have candidates, private individuals, and outside groups and political parties can make unlimited independent expenditures. This had to do with the coordination, and it was a very big part of it. One of the things I also loved about this decision, you were talking about this earlier, Kyle, that sometimes the court updates things in light of new technology and changes in the world. And one of the things that cite as a reason for getting rid of this, is it noted that, you know, back in the day when some of these laws were created limiting all of this, it was because if you wanted to find out who was spending on what and who was earmarking money for different candidates via contributions they had given to the party, you basically had to go to a basement and rifle through all these sort of FEC files, which nobody ever bothered to do. So there was always a great risk that there was no no going on and that people weren't aware that it was happening. That's pretty much impossible in today's disclosure environment where everybody's contribution is essentially immediately goes online, including those earmarking regulations which require disclosure on that. So this was fundamentally a kind of, hey, let's have some faith in the disclosure system we have. Let's let Americans see what's going on. But let's acknowledge that this whole experiment. where we were going to kind of, you know, level the playing field out there has just been a massive failure. And all it is done is turbocharge groups that are even harder to keep track of and that confuse voters more and really taken away the power from the parties that have their name on those party candidates, Republicans and Democrats. Thank you, Kim and Alicia. Thank you all for listening. You can email us at PW Podcast at WSJ.com. If you like the show, please. hit that subscribe button and we'll be back tomorrow with another edition of Potomac Watch. This podcast is brought to you by Altana AI. In a fracturing global order, how do we collaborate more, enforce more, and trade more all at the same time? You build an infrastructure of trust. Altana provides it. Compliance verified at the product level. AI powered visibility. Intelligence shared across borders without compromising sovereignty. The future of trade is trust. Altana, the network for trusted trade. Altana.a.a.