You can add “and subject to the jurisdiction thereof” to the list of plain-language Constitutional phrases that conservatives pretend not to understand, right next to “a well regulated militia.”
Trump’s Department of Justice is attempting to muscle a new, wildly bad-faith interpretation of the 14th Amendment past the objections of eighteen states, Washington D.C, and San Francisco in order to eliminate “birthright citizenship,” a long-standing American tradition that has suddenly become a dangerous threat, like newspaper owners exercising their independence or the Posse Comitatus Act.
Passed in the wake of the Civil War, the first sentence of the amendment reads:
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.
The DOJ is claiming that “and subject to the jurisdiction thereof” does not mean what those particular English words assembled in that particular order clearly mean, and have meant for the past 159 years. Trump is asserting that people born in the United States “and not subject to any foreign power” are the only ones who get citizenship. This would exclude the children of people here illegally or temporarily.
The justification for this claim is that another law passed in the aftermath of the Civil War — the Civil Rights Act of 1866 — said it, though the Amendment itself doesn’t include that language. It’s a century-and-a-half old typo, is the thinking, where the authors of the 14th just, y’know, forgot. Oopsie.
This also means that the phrase “I wish I was a little bit taller, I wish I was a baller” are also possibly part of the 14th Amendment.
This, clearly, is insane. It’s ahistorical and makes a mockery not only of the plain text of the Constitution, but of text not actually in the document. A conservative is someone who stands athwart history, yelling “Fuck it, let’s blow some shit up.” Strict constructionism, my ass.
Thankfully — and I’m having trouble believing I’m typing these words — there are still Regan judges out there. U.S. District Judge John Coughenour has put a stay on the implementation of Trump’s executive order, saying it “boggles the mind” and that “[t]his is a blatantly unconstitutional order.”
“I have been on the bench for over four decades. I can’t remember another case where the question presented was as clear,” he said. “You fucking dipshits,” he very likely thought but didn’t actually add.
And, OK, sure, you’d expect something like this from Trump. I sincerely doubt he has (or even can) read the Constitution much less the couple hundred executive orders he scribbled all over his first day back in office. He doesn’t know what any of this means, save that he’s able to wield arbitrary authority to hurt people he doesn’t like or that people he wants to like him don’t like.
But the argument was presented by Department of Justice lawyers, and they certainly have read the EO and understand the nuances of the argument being made.
Brett Shumate, the DOJ attorney making the argument before Coughenour, was asked, “In your opinion, is this executive order Constitutional?”
“It absolutely is,” Shumate said.
“Frankly, I have difficulty understanding how a member of the Bar could state unequivocally that this is a Constitutional order,” answered Coughenour. “You fucking dipshit,” he again very likely thought.
Other DOJ employees who signed on to defend the EO include Branch Directory Alexander K. Haas, Special Counsel Brad P. Rosenberg, R. Charlie Merritt, and Yuri Fuchs. Haas, Rosenberg, and Fuchs have all been at the Department of Justice for either over or going on two decades.
I mean, some of these knuckleheads were at the DOJ during the Obama Administration! All were for Biden! Were they just biding their time until someone came along who was man enough to fundamentally misinterpret the clear and historical meaning of those six words (while adding a bunch of other words that aren’t actually there)? How do you go from working within the system for two decades to trying to smash it to pieces inside of a week?
This is not an uncommon trajectory for Trump lawyers. Some of them — not all, but plenty — have had respected, even mainstream, careers, before they get caught up in the spin of Hurricane MAGA. And — more often than not — they’re left picking through the wreckage of their lives after the storm has moved on, distracted by windmills or insurrection or a jangly set of keys.
Lawyerin’ is a “profession,” in the strictest sense of the word. “Professionals” have special training, usually extensive educations, and there are often administrative bodies that enforce licensing and ethical standards for the group as a whole — doctors, lawyers, absolutely not computer programmers, thank God. There is no little irony in the fact that this body, for lawyers, is called a “bar.”
The various state bars are the entities that punish lawyers with suspensions or disbarments, if they skid too far off the road. Sometimes it’s for addiction or fraud or just being a massive dickhead. Sometimes it’s for all three.
Speaking of Rudy Giuliani, when the Washington D.C. Board of Professional Responsibility permanently pulled his license, they said, “Disbarment is the only sanction that will protect the public, the courts, and the integrity of the legal profession, and deter other lawyers from launching similarly baseless claims in the pursuit of such wide-ranging yet completely unjustified relief.”
Rudy is 80 years old, and a sticky, broken husk of what he once was. He went from a 75% public approval rating in 2002 to 15% in 2023. He is bankrupt, a laughing stock, and will be widely remembered as a pathetic sex pest who’s hair coloring dripped down his face as he held a press conference at a landscaping business.
This ignominious, career-mutilating end isn’t uncommon for people who fall into Trump’s orbit. John Eastman, the architect of Trump’s Plan A to keep the Presidency (where Plan B was “Kill Mike Pence and smear poop on the walls”), was disbarred in California. L. Lin Wood surrendered his license. Nearly half of the 22 lawyers Trump used to fight the 2020 election result where indicted, and Jenna Ellis, Kenneth Chesebro, and Sidney Powell all pled guilty. Most faced disciplinary proceedings of one form or another from their respective state bars, including suspensions of their law licenses and sanctions.
Do I think that these DOJ lawyers are endangering themselves by going before a judge and claiming that a critical part of the Constitution is actually a Magic Eye poster you need to cross your eyes to be able to see? No, I don’t.
But neither did I think that you could gather a couple of dozen learned professionals and have them set their careers and reputations on fire for the sake of a serial liar who has never failed to push literally anyone in front of a bus if it meant he could get another round of golf in.
Trump is going to ask a lot of DOJ lawyers to do a lot of stupid things in the next four years. They will be required to violate their oaths and ethical promises to do them. On the off-chance that the country doesn’t collapse into the dictatorship of a Diet Coke-addled man-baby, there will be consequences for those that take up that particular flag.
They might want to look at how the last batch of useful idiots ended up.